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The Cartel

Lawyers and Their Nine Magic Tricks

EVAN WHITT0N

16 - Playing the Saxophone: The Adversary System in Action

The great defect of much of the fiction written about legal life is that the barrister there discovers what really happened. The reality is that the adversary process of a trial more often leaves the truth mysteriously hidden, covered over by the evasions and half-truths of competing contentions.

 - David Pannick QC

Perry Mason. Erle Stanley Gardner (1889-1972), an "ingenious lawyer for the defence" 1922-1938, is, or should be, one of the great heroes of the defence lawyers, along with Procurator Pontius Pilate, Sir James Dyer, Lord Mansfield, Sir William Blackstone, Sir James Lewis Knight-Bruce, Lord Reading, and Justice Tom Clark. Beginning with The Case of the Velvet Claws (1933), he wrote 82 courtroom dramas in which defence lawyer Perry Mason often persuaded the guilty person to confess in the witness box. Gardner and most of his spawn thus give citizens the false notion that the common law and its adversary system seeks and finds the truth.

Anatomy of a Murder . Judge John D. Voelker (1903-91) is another hero of the defence lawyers. He wrote Anatomy of a Murder in 1958 under the pen name Robert Traver. Otto Preminger made it into a 160-minute film in 1959 with James Stewart as Paul Biegler, a small-town lawyer, Ben Gazzara as the client charged with murdering a bartender who had assaulted his wife, George C. Scott as the prosecutor, and Joe Welch as the judge. As lawyer for the Army, Welch had put Senator Joe McCarthy out of business in 1954. The film (and no doubt the book) is a useful document in that it shows how the common law really works, but in a sense it is more sinister than Gardner's drivel: all-American hero Jimmy Stewart gives viewers the impression that it is proper for a lawyer to help his client fabricate a defence to murder.

The Lecture. Fred D. Shapiro quotes from the book Anatomy of a Murder: "The Lecture is an ancient device that lawyers use to coach their clients so that the client won't quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn't done any coaching ... 'Who, me? I didn't tell him what to say,' the lawyer can later comfort himself. 'I merely explained the law, see ..."

"You mean," [the client] said, "that my only possible defense in this case is to find some justification or excuse?"

My lecture was proceeding nicely to schedule. "You're learning rapidly," I said, nodding approvingly. "Merely add legal justification or excuse and I'll mark you an A."

"And you say that a man is not justified in killing a man who has just raped and beat up his wife?"

"Morally, perhaps, but not legally."

In the film, Stewart "lectured" Gazzara that the law might find a murderer innocent if he was momentarily mad at the time, and told him to go back to his cell and think about it. Gazzara took the hint and Stewart duly got him off. The film, and presumably Judge Voelker's book, did have a tiny nod in the direction of justice, but not for murderer, victim or community: the murderer decamped without paying his shyster the fee. More than 30 years later, lawyers for Lorena Bobbitt successfully used the same defence in her penis-slicing case.

Corruption. In the common law adversary system, police, not judges, are in charge of the pre-trial fact-gathering process; lawyers, not judges, are in charge of the fact-gathering process at trial. On August 3, 1995 Justice James Wood, inquiring into police corruption in NSW, summed up what may be seen as some of the consequences of the system on prosecution and defence.

Justice Wood said: "I regard the manipulation of the criminal court process as the ultimate and potentially most cynical, arrogant and dangerous face of corruption that can exist. It in fact is a quintessential hallmark or sign of the existence of systematic corruption and it can take a number of forms, including, but without being exhaustive, at least the following:

"One, the watering down of a prosecution case, either in terms of withholding vital evidence or witnesses, or in reducing the quantity of drugs or money involved.

"Secondly, the manufacture of a false brief on the prosecution side by means of 'bricking in' or 'loading' an accused.

"Thirdly, on the defence side, the manufacture and use of untrue or slanted evidence, whether it be of fact or expert opinion.

"Four, the provision and use of fake or untrue character references.

"Five, the withholding or doctoring of criminal antecedents.

"And six, the failure of the prosecution to offer a case for the ostensible reason that witnesses cannot be found or are unwilling to co-operate as a result of fear or pressure exerted upon them, that is, without appropriate investigation of the truth of such an assertion ...

"It is exceedingly bad if it is the Police Service or members of it who are corrupt; it is totally unacceptable and a horrifying situation once it extends to experts, private inquiry agents, the legal profession or others."

In his report in 1997, Justice Wood did not recommend that the system be changed.

0.J. Simpson. The 0.J. Simpson criminal trial probably did as much to destroy the adversary system as Erle Stanley Gardner did to preserve it. Professor Luban says: "The 0.J. Simpson trial has persuaded most Americans that the adversary system is at best grotesque."

"Legal argument" is a euphemism for discussion between the lawyers and the judge about what evidence will be concealed from the jury. There were some 16,000 objections at the Simpson murder trial. Dickens seems to have been right.

Only Doing His Duty . Soon after Simpson's former wife was murdered, Simpson was sighted in his white Bronco and tracked by television cameras. Robert Shapiro, his lawyer, announced that Simpson had only US$50, but it emerged that he had a passport, a false beard, a loaded gun and US$8000. Shapiro's apparent economy with the truth was accepted on the basis that "he was only doing his duty to his client". The jury at Simpson's criminal trial did not hear about his apparent attempt to flee the country, nor did they hear from Simpson.

Shifting the Goalposts . In February 1995 Gloria Allred, a lawyer for the family of the murdered Nicole Brown Simpson, said during the Simpson criminal trial there had been a "calculated strategy to put the victim and her family on trial and the purpose of this strategy is clear: to cheapen the reputation of Nicole by describing her, for example, as a party girl rather than as a mother of two children, and by portraying her as a slut rather than the devoted daughter of her mum and dad."

Carl Douglas, a lawyer for Simpson, accused Ronald Shipp, a former policeman who described himself as a longtime friend of Simpson, of a list of misdeeds including chronic drinking and using Simpson's spa bath with a woman not his wife. Prosecutor Christopher Darden complained to Judge Lance Ito in chambers about the questioning of Shipp. He said: "We can't destroy the lives of every witness who takes the witness stand, you know, just to suit Simpson's needs. We've hit an all-time low here, I think I don't know if you guys can go any lower."

"That's baloney, " Simpson's lawyer, Johnnie Cochran replied.

In Simpson's case, the shift was from murder to race. In the case of Said Morgan, a Sydney policeman who admitted firing six shots into a man, the shift seems to have been to the victim, an alleged paedophile. In the case of Dean Waters, who admitted taking part in a killing on his father's instructions, the shift seems to have been to parental abuse. All were acquitted.

Expert Witnesses . Edward St John QC said: "Everyone knows that certain cases are decided by which side gets to the most expert witness first." Dr Michael Crowley notes the difference between the common law system, where expert witnesses are appointed by the lawyers, and the European system, where they are independently appointed by the court.

The "Saxophone" . Defence lawyers often find the civil liberties "violin" a useful instrument to pluck. Professor John Langbein notes another instrument. He said: "At the American trial bar, those of us who serve as expert witnesses are known as 'saxophones'. This is a revealing term, as slang often is. The idea is that the lawyer plays the tune, manipulating the expert as though the expert were a musical instrument on which the lawyer sounds the desired notes. I sometimes serve as an expert in trust and pension cases, and I have experienced the subtle pressures to join the team - to shade one's views, to conceal doubt, to overstate nuance, to downplay weak aspects of the case that one has been hired to bolster. Nobody likes to disappoint a patron; and beyond this psychological pressure is the financial inducement. Money changes hands upon the rendering of expertise, but the expert can run his meter only so long as his patron litigator likes his tune. Opposing counsel undertakes a similar exercise, hiring and schooling another expert to parrot the contrary position.

"The result is our familiar battle of opposing experts. The more measured and impartial an expert is, the less likely he is to be used by either side. At trial the battle of experts tends to baffle the trier, especially in jury courts. If the experts do not cancel each other out, the advantage is likely to be with the expert whose forensic skills are the more enticing. The system invites abusive cross-examination. Since each expert is party-selected and party-paid, he is vulnerable to attack on credibility regardless of the merits of his testimony ...

"The case against adversary domination of fact-gathering is so compelling that we have cause to wonder why our system tolerates it. Because there is nothing to be said in support of coached witnesses, and very little to be said in favour of litigation-biased experts, defenders of the American status quo are left to argue that the advantages of our adversary procedure counterbalance these grievous, truth-defeating distortions. 'You have to take the bad with the good; if you want adversary safeguards, you are stuck with adversary excess'."

"Deeply Corrupting”. Dr Crowley quotes J. R. Spencer and R. Flin (The Evidence of Children, Blackstone, 1990) as stating that in Britain “courts tend to distrust expert evidence". He says "they suggest this distrust is related to the 'deeply corrupting effect' of the adversarial system which ensures 'that much of the expert evidence the court receives is unreliable through bias'." By contrast, Dr Crowley notes, in France, Germany and Sweden "the potential for bias in the presentation of expert evidence is minimised as the expert gives his / her evidence as a 'neutral servant of the court' within the framework of an inquisitorial system of law".

Justice Geoffrey Davies, chairman of the Queensland Litigation Reform Commission, said in A Blueprint for Reform that the adversary system "tends to make advocates of the witnesses. This view, or at least our consequent proposal for court-appointed experts, is one which is strongly and emotionally opposed by many members of the practising profession. But there is little doubt that most witnesses, at least unconsciously, take sides".

Gladiatorial. Nicholas Cowdery QC reports the Former Chief Justice of Western Australia, Sir Francis Burt, as saying in 1997: "The law today is in significant trouble. In many cases a lawyer sees himself as the aggressive gladiatorial fighter for his client's perceived rights and, for his price, will join in and fight the good fight with all his might - in some cases with little regard for morality or ethics. "

F. Lee Bailey . Francis Lee Bailey likened the role of criminal defence lawyer to the heroic struggle of a single-combat warrior in his 1971 memoir, The Defense Never Rests. In 1993 he was the most admired lawyer in America, according to The National Law Journal's public opinion poll. In 1995 he was on 0.J Simpson's defence team. Ira Silverman and Fredric Dannen (The New Yorker, March 11, 1996) noted that Bailey's former colleague, Edward Shohat, said in early 1996: "Lee is a terrific lawyer. Terrific. On his feet. He just dominates a courtroom. But no way could I work with that son-of-a-bitch prick. "

Federal prosecutor David McGee told Judge Maurice Paul in February 1996: "What you have is proof that F. Lee Bailey has stolen from the people of the United States in excess of twenty million dollars ... he gives up ethics, he lies and he cheats ... I ask that the court place him in jail." Judge Paul obliged.

Zeal. Sir James Knight-Bruce advised prosecutors against too much zeal in searching for the truth, but the adversary system demands zealotry, not necessarily for the truth, of defence counsel. Nicholas Cowdery says: "Professor Luban of Georgetown University also argues that the adversary system implies a vision of legal ethics combining extreme partisanship with moral non-accountability. The principle of partisanship requires advocates to advance their clients' partisan interests with the maximum zeal permitted by law. The principle of nonaccountability insists that an advocate is morally responsible for neither the ends pursued by the client nor the means of pursuing those ends (provided that both means and ends are lawful)."

Cowdery then asks: "Is it a breach of professional standards not to go judge-shopping to the fullest extent possible?"

The Habit of Nastiness . Bright young lawyers apparently equip themselves with the habit of nastiness just as rapidly as bright law students pick up the knack of casuistry. Cowdery: "The attitudes that are fostered among practitioners are illustrated in an example given by another American writer in the context of discovery as it occurs in the USA [Yablon: Stupid Lawyer Tricks An Essay on Discovery Abuse, 1996, 96 Columbia Law Rev. 1618): “’Because litigators rarely win or lose cases, they derive job satisfaction by recasting minor discovery disputes as titanic struggles. Younger lawyers, convinced that their future careers may hinge on how tough they seem while conducting discovery, may conclude that it is more important to look and sound ferocious than to act co-operatively, even if all that huffing and puffing does not help (and sometimes harms) their cases. While unpleasant at first, nastiness, like chewing tobacco, becomes a habit ... it is easy for young lawyers not only to stay mired in contumacious, morally immature conduct, but to actually enjoy it'."

Lawyers' Abuse of Privilege . Lawyers complained that a Sydney politician, Franca Arena, had abused parliamentary privilege in October 1996 when she asked in Parliament if a former Supreme Court Justice, David Yeldham, had been given preferential treatment by Justice James Wood's inquiry on paedophilia. Yeldham later committed suicide after he learned that the inquiry had evidence of his activities in lavatories at railway stations. I noted that "lawyers may overlook - or perhaps hope we do not notice - that parliamentarians' 'abuse' of their privilege does not begin to compare with the enormity of lawyers' abuse of THEIR privilege. Lawyers are obliged to follow a client's instructions even when they know he is guilty; a lawyer, one year out of law school and not elected by anyone to anything, has an absolute privilege to make the most monstrously false assertions about the victim".

Fabrication by Prosecution Witnesses . In more than two centuries, the adversary system has not achieved its initial purpose, which was to defeat fabrication by prosecution witnesses. Indeed, it seems that fabrication has increased by way of a circular effect: prosecution fabrication led to fabricated defences, which led to more prosecution fabrication, and so on.

Detective Constable Duncan Demol confirmed at Justice James Wood's NSW police corruption inquiry in July 1995 that police were prepared to fabricate at the "scrumdown" before trial. Demol said the law was "a joke"; that it was "hard to prove"; that "no one believed the coppers", and "you had to do it to get a conviction". Detective Sergeant Neville Scullion told Wood in July 1995: "The hierarchy was more interested in the arrest rate" than in the conviction rate.

An officer of the Australian Federal Police, codenamed JTF 16, told Michael Finnane QC, counsel for the NSW Police Service at the Wood inquiry, in October 1995 that he gave false evidence in perhaps 25 per cent of cases as the only way of convicting people he believed were guilty of major crimes.

Finnane: You felt if you didn't "load" they wouldn't get a sentence?

JTF 16: I would agree with that ...

Finnane: There is concern that the system is loaded against police unless you give it a push?

JTF 16: Yes.

In Beyond Reasonable Doubt, David Yallop explores a case in which Arthur Thomas, an innocent New Zealand man, was convicted on evidence fabricated by police.

Kelly. A Sydney Homicide detective, Sergeant Ray Kelly, may have enunciated the essence of the extreme adversary system when he charged John Frederick (Chow) Hayes with murder in 1951. David Hickie, author of Chow Hayes, Gunman, reported: "Chow Hayes told me that Kelly told him: 'I will tell as many lies as I can to convict you, and you tell as many lies as you can to beat it. Is that fair enough?' Hayes said it was fair enough. He admitted to me 40 years later that even the paper boys knew he was guilty, but it took the prosecution three trials to prove it."

Winning. As noted, Justice Callinan said: "In ordinary adversarial litigation ... the object of the parties is simple, to win the case." David Pannick notes that Lord Denning said that when he was a young advocate, "I wasn't concerned so much with the rightness of the cause, I was concerned only, as a member of the Bar, to win it if I could." Chrissa Loukas, a Sydney public defender, said in April 1996 that "lawyers only talk about their wins".

Lying. Stan Ross, who teaches legal ethics at the University of NSW Law School, says that lawyers "frequently lie to opposing counsel and / or the court. [They] do things for their clients that they would find immoral if they acted similarly for themselves or non-clients".

Professor Luban quotes a leading member of the cartel, Lord Macaulay (1800-59, legal adviser to the Supreme Council of India 1834-38), as observing that an advocate "with a wig on his head and a band round his neck will do for a guinea what he would otherwise think it wicked and infamous to do for an empire".

The Spectator said in a leading article, Lesson in Law, on 26 March 1994 that the behaviour of the British Government's lawyers in the original Matrix-Churchill prosecution "suggests that the principal effect of a legal training is the elimination of any sense of justice".

The Guilty Client . Rule 33 of the rules of the NSW Bar Association states: "A barrister ... whose client confesses guilt to the barrister but maintains a plea of not guilty ... may argue that for some reason of law the client is not guilty of the offence charged." The lawyer must also accept the client's instructions even though he knows or believes he is lying.

A Better Lie. The lawyer may even suggest that the guilty client change his lie. Robert Mannion reports: "A young lawyer recalls how she sat next to two colleagues in the library of Auckland's High Court who were planning a defence case for rape. She discovered that the alleged rapist wanted to say he was somewhere else at the time of the crime. But his lawyer had persuaded him to change to a defence of consent. Now he would say he had had intercourse, but that the woman had agreed. As a strategy, the advice was probably sound. But the young lawyer's unease will be familiar to anyone who has ever worried about how little the truth seems to count in our system. "

The Classic Defence . The common law makes it relatively easy to get the guilty off. A jury is only as good as the evidence put before it, and cross-examination is as great an engine for obscuring the truth as for exposing it. The elements of the classic defence of a guilty man are thus: his lawyer persuades the judge to conceal relevant evidence; the guilty man exercises his right to avoid cross-examination; his lawyer uses verbal thuggery to confuse prosecution witnesses sufficiently to create a reasonable doubt; his lawyer shifts the goalposts, e.g. from accused to victim.

The lawyer sets it up at the committal hearing, where he can ask all the questions he would not dare ask at the trial. The complainant, perhaps traumatised, and other witnesses have made statements to the police, and no one says the same thing in the same way twice or three times. Also, there is pressure on police (as well as lawyers) to get a result, and some believe that "the brief can only improve"; they improve the statement by adding phrases or actions. Either way, there is likely to be a conflict between the witnesses' written and oral evidence.

The accused's lawyer begins his cross-examination in this menacing but courteous fashion: "I show you a document. Is that your signature which appears at the bottom of pages 1, 2, 3 ... ?

"Yes."

"Please look at paragraph one."

Paragraph one says something like: "This is a true statement .... I make it knowing that if it is deliberately false I am subject to prosecution." At this stage the witness generally looks worried, and we are back to trial by ordeal, but not of the suspect.

Rapists. The common law sportingly gives rapists 99 chances in 100 of getting off. The Guardian Weekly of April 25, 1993 said an English Home Office study found that only between a tenth and a quarter of raped women report it to police; only 15 of 114 cases reported to two London police stations between 1988 and 1990 got to trial; only five suspects were convicted, a conviction rate of between 0.438 per cent and 1.096 per cent.

Getting Off Rape . Julia Griffith, a psychologist, noted in The Sydney Morning Herald in 1996 a case in which a man, who had already been imprisoned for child sexual assault, got off two charges of rape against a girl neighbour when she was 13 and 15. Griffith said the girl, now 17, was subjected to "a week-long assault" in the witness box, and "had nightmares afterwards". His lawyer "called her character into question", but the jury was not allowed to hear character evidence in her favour, or evidence of his character as revealed by the pattern of his previous behaviour.

"The adversarial system does not elicit the truth in these cases," Griffith said.

Sex victims fear going in the witness box; the European procedure of a judge questioning the woman or child in a neutral way would be a better alternative.

The Holocaust . A man who denied the Holocaust was charged with violating a Canadian prohibition on ethnic hate-speech. Professor Luban notes the technique: "The defense lawyer cross-examined witnesses who had survived concentration camps where their parents had perished. He challenged them with the utmost brutality, asking whether they had actually watched their parents be gassed to death (of course they hadn't since they were survivors), and when they admitted that they had not, went on to suggest that for all they knew their parents were alive but simply didn't want to see them again."

Woolf. Lord Woolf was perhaps elaborating the obvious when he reported in 1996 that the adversary system is too expensive, too slow, too unequal, too uncertain, and incomprehensible to many.

Summary. Recalling that the adversary system was invented to counter state oppression via fabricated evidence BY prosecution witnesses, we may summarise the system's defects as follows (12 and counting):

1 It has achieved oppression OF prosecution witnesses.

2 It has increased fabrication by defence witnesses.

3 It obscures the truth from the community, i.e. from its representatives on the jury.

4 It took control of trials away from judges.

5 It gave control of trials to lawyers whose object is not to deliver justice but to win.

6 It causes paranoia in prosecution and defence lawyers.

7 It encourages defence lawyers to deceive the community, i.e. the jury.

8 It has a "deeply corrupting" effect on expert witnesses.

9 It increases the cost of trials.

10 It prevents the legal aid budget from being fairly distributed.

11 Imbalance in the skills of the lawyers tends to make a trial unfair to either the community or the accused.

12 It allows defence lawyers to engage in legal thuggery on victims of crime, particularly women and children who are victims of sex crimes.

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