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Thursday, May 8, 2014

Selby: It's All Just a Matter of Perspective

Until recently I subscribed to the myth that in first world countries murder trials were the domain of the best of us, that only those who were proven advocacy performers would get such work.  I continued to subscribe to this mythology even though the various innocence projects had shown, time and again, that innocent people represented by incompetents or fitted up by prejudiced law enforcement were serving life terms for killings about which they knew nothing.

I’ve now seen and heard enough to know that in law, as in other occupations, some of those who bob up and down at the top of the pile should never have risen above the bottom feeders where they belong.  As an advocacy teacher I think poorly of those advocates who take important cases but are then poorly prepared for the law and the facts, or who are less than satisfactory advocates.

Murder trials are serious business:  there’s a departed soul; there are the collateral victims being those closely related to the departed or witnesses to the event – they are looking for closure; there’s an accused who, if found guilty, will have their days marked out by others for years and years; there’s the jury who must confront and evaluate unpleasant evidence.  All of these people deserve to be well served by the advocates.

Here’s a short tale in which the competing advocates sold everyone short.  I was told it by one of the prosecution witnesses who, not being an advocate, was quite unaware of how poorly both the prosecutor and defence advocate had performed. He told it to me from the perspective of a dozen years on, with a possibly incomplete memory for salient detail, so take it as a story not as truth, but a story that can be shared with students who see advocacy as a game, not a testing vocation.

The witness, an experienced intensive paramedic, was called to the scene in the pre dawn witching hours.  He found an infant, less than a year old, near death in a pram.  The pram was clean, the baby’s jumpsuit was spotless, but there were blood bubbles and a clear liquid that, at the time, he thought was cerebral spinal fluid [CSF], around the infant’s mouth. He called the child as dead – it was, alas, beyond human help – and carefully recorded his observations. These were  provided to investigating police.

The partner of the mother was later arrested and charged with murder.  The usual, lengthy pre trial processes occurred – none of them involving the paramedic who was then called to the jury trial with no briefing as to what was expected of him or of the details of the prosecution case.  Unbeknown to him there was forensic pathology and other crime scene evidence that showed that the accused had grotesquely kicked the infant to near death, the scene and the infant were then washed down, the infant was reclothed in a spotless jumpsuit, placed in the pram in another room, and the paramedics then called to the house.  It was not CSF, but water from the washing, that the witness had seen.

When the paramedic witness came into the courtroom the jury knew that it was blood and water, but the witness didn’t know what the jury had been told.  Of course this should have been discussed pre-trial.  Of course the witness, guided by the prosecutor, should have acknowledged his scene statement, explained why he then thought the liquid was CSF, and then explained what he now thought to be the case.

That didn’t happen because the prosecuting team was not adequately prepared.

But they were saved by the defence.  Instead of leaving well alone, and so having the chance at closing to point out that the first on the scene, experienced paramedic did not find water, but did find CSF, the defence went exploring and fell into the abyss that is labeled ‘curiosity’.  They asked him about the CSF. They asked him in such a way that he reflected on that night, in the witness box he went ‘back to the scene’ in his mind, he replayed it and when he was done he turned to the trial judge and said that on reflection he’d made a mistake: it couldn’t have been CSF, it must have been water. It was a watershed moment.

The accused offered a plea to manslaughter.  The prosecution accepted it.  The trial judge sentenced the prisoner.  The prosecution appealed the sentence as too lenient.  The appeal court agreed and substantially increased it, pointing out that sentences for manslaughter did not need to be ‘lower’ than those given for murder.  So, in the end there was justice for the dead infant, justice for its siblings, justice for the community – but that was in spite of, not because of the trial advocacy.

We could leave it there, but such a sickening story needs to be followed by light relief.  I shared the above with a non-lawyer colleague.  In return he told me about wandering into a court room during his college days with a law student friend.  The charge was drug possession.  The police witness described how they had a search warrant, how when the apartment door opened they could see down the corridor where the accused was sitting on a window sill and throwing a package into the garden below.  It had the feel of a ‘fit up’ and that’s how the defence lawyer treated it.  The cross examination was going very nicely until the defence lawyer decided to fly with,  “And was it raining?”, presumably intending a whiff of wet sarcasm to fold around the court room.  But the officer was much too good.  ‘It had been’, he said, ‘but it had stopped just as we arrived and the package we recovered among the flowers in the garden was wet underneath but dry on top ‘.  It’s not only advocates who persuade.

Hugh Selby © May, 2014.

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