Report of Pegasus Scholar

Jeremy T. Powers 2010 Pegasus Scholar to the United Kingdom

Imagine meeting a long lost relative—a brother, father, or cousin. Imagine someone older than you, with whom you share those closest of genetic and familial links—someone of whom you’ve been told for years, yet have never before met, or don’t remember. What would you know of him, before your meeting? You may have read things he had written—his journal, letters, random musings on general topics or recorded opinions on more specific ones. You may have read evaluations of him by others—perhaps his colleagues, his neighbors or others who have known him throughout his life, or you may have followed some aspect of his life in the news. You might even have heard stories told by your family, anecdotes of his life and experiences and interactions and responses to various situations or tests of character; you may have even been entertained with some humorous yarns or interesting (and perhaps apocryphal) lore. All of these would of course be filtered through the descriptions and perceptions of others. They may be perfectly valid and reliable descriptions and you could perhaps, with sufficient study, consider yourself to be somewhat expert on this man’s life and character; nevertheless, the picture you would develop in your mind of this long lost relative would be necessarily generated, not experienced. You almost certainly would find, upon meeting and spending time with this man, that you had some of it wrong. You would realize you hadn’t nearly so rich a qualitative feel even for what part of it you had right, until after you had experienced time with him in person. Even if there had been something positively formative in his role toward you in your early childhood, you likely wouldn’t feel it until you had made that human connection and observed it firsthand. You might find that a myriad of subtle similarities would overshadow what you had previously perceived as vast differences. In fact, you might begin to find that a great deal of that which you had considered unique to your own personality, choices, or habits was actually common to you both. From there, you would likely begin to see how different experiences or choices might have shaped you separately, albeit from a common core. The 2010 American Inns of Court Pegasus Scholarship allowed me to experience exactly this opportunity regarding my chosen profession. The American legal traditions that are the basis of my professional training of course have deep roots in those of the United Kingdom. It was fascinating to see many of the ways in which we have developed from this common foundation separately (and sometimes in seemingly opposite directions). I was fortunate to have opportunities to witness firsthand some of the ways in which our separate systems of justice have gone through a convergent evolution, to reach similar goals and results based on the universal human concern for justice. Chambers My particular experience was greatly enhanced by the fact that I had been assigned to chambers (the barristers’ equivalent of American “firms,” though that term in British use seems to apply only to solicitors’ offices) that closely mirrored the areas in which I practice as an Assistant State Attorney in the Fifth Judicial Circuit of Florida. Here in the United States, I practice in criminal prosecution of fraud crimes and economic, regulatory, and environmental offenses under Florida law. The first chambers to which I was assigned, QEB Hollis Whiteman, has a great deal of involvement in exactly these areas, both from a prosecution and defense perspective. This was another area of my legal education in the U.K. that I found intriguing—a barrister may one day be prosecuting a case, and the next may be defending a similar one. In the U.S., this essentially requires a career change between the “sides” of prosecution and defense, and is something many trial attorneys never experience at all. I was happy to find that this ability— and in fact, necessity—of barristers to shift fluently between roles was respected as one that can greatly assist an advocate in developing professionalism and expertise. In advocating for the prosecution on one case, one necessarily considers factors that one may use as a transferrable skill to effectively defend on another. It was at QEB Hollis Whiteman (QEB references the Queen Elizabeth Building, which sits just off the Victoria Embankment on the River Thames, near the Inner and Middle Temples of the Inns of Court) that I first discovered

Continued * how busy a barrister’s day can be. From a sheer perspective of the commute, practicing law in London is a task, before one even considers the additional requirement of actually preparing for and appearing in court. In the U.S., most courthouses are very centralized affairs, serving a wide jurisdictional area. Certainly this is at times the case in the UK as well, particularly when considering areas like the Maidstone Crown Court in Kent, or other areas less urbanized than Central London. It is also true that the Royal Courts of Justice, the Supreme Court of the United Kingdom, and other such monumental courts as the Central Criminal Court (colloquially called “The Old Bailey” from the street on which it sits) are centrally located in Legal London. The striking thing from my perspective was the relative geographic decentralization of the Crown Courts, which are roughly the equivalent of Florida’s Circuit Courts. Perhaps out of necessity, these are located throughout London on much the same pattern that one might think of public school placement; that is, a courthouse is placed in more of a “neighborhood” setting. This produces a more evenly distributed caseload in a large metropolitan area, but it also means that barristers must travel, often multiple times in a day and with case files and the traditional wig and robe attire packed in tow, between relatively distant courts to make their appearances. For junior barristers, a typical morning might consist of arriving at chambers and working on case preparation for a couple of hours until following the clerk’s assignments for the day, then commuting back to chambers to meet with one another or with clients, or to prepare for upcoming cases. The chambers’ clerks assign each barrister to cases for which they must appear; clerks have a huge responsibility in the efficient assignment of cases to barristers. The workload is high, as is the work ethic I observed among barristers and their support staff. The environment is simultaneously collegial and competitive, and it becomes quickly apparent that there is always more to do. I had been told, informally, that while QEB Hollis Whiteman tended to be more oriented toward prosecutions, Charter Chambers was somewhat more defense oriented. Notably, however, I saw two remarkable trials involving charges of serious violent crime while in London—one during my time with QEB Hollis Whiteman and one during my time with Charter Chambers—and both were from a defense perspective. I also saw a first-rate prosecution of a drug case while with Charter Chambers. Certainly the flexibility of the barristers to operate within their assigned roles was impressive. The People and the Profession At each step of my study, I found individuals who seemed to step forward to make themselves approachable and add to my experience. I am quite reluctant to begin naming them, as invariably some of those who were so helpful would be left out of my list. Some notable examples should suffice, however: After a weekend spent on planes, trains, and automobiles from Citra, Florida, United States, to London, England, I met Eamonn O’Reilly, from the Education and Training Department of the Inner Temple. From arranging for keys to the flat and a U.K. mobile phone to a general orientation of London, Mr. O’Reilly made an excellent mental map for me of what I would be doing and when—and rightly focused on the most important areas first (a very welcome consideration, given the travel weariness I felt). Then, he promptly disappeared, only to reappear again at exactly the right intervals to check in on schedule, give a tour of the Inner Temple Library, extend a lunch invitation to dine in the Inner or Middle Temple Hall, ask how things were coming along, arrange specific assignments to observe the workings of Legal London, or give an update on the status of chambers assignments. On my first day in chambers, I met Edward Henry of QEB Hollis Whiteman. Mr. Henry had hosted Pegasus Scholars in chambers before, and his demeanor, conversational style, and input put me quickly at ease. Over the weeks to come, despite his busy schedule, he always made time for a quick explanation of a specific procedural requirement, a more lengthy comparison of the finer distinctions in the law in a particular case, or shared comparisons of American and English history and current events equally fluently. My first forays outside London were to the Maidstone Crown Courts in Kent, to observe a trial in which he and QC (Queen’s Counsel—more on this later) John Hilton were defending a young woman accused of murder. The facts of the particular case—the human factors— were of the kind that would make an advocate for either side concede that the other had a very triable case. The case did not involve a question of identity, rather, it involved serious questions regarding what in the U.S. might be considered diminished capacity, self defense, and even justifiable homicide. This, combined with several hours of train rides between chambers and the Maidstone Crown Court, allowed for some of the most rewarding discussions of the intricacies of criminal law that I have ever experienced. Mr. Henry also arranged for me to present some of my own expertise to his colleagues at QEB Hollis Whiteman, in the form of a seminar on the plea negotiation process in the United States, and another to compare and contrast regulation and prosecutions conducted involving the rules of the U.S. Securities and Exchange Commission and the U.K.’s Serious Fraud Office. When I met Martin Goudie at Charter Chambers for my second assignment, I was fascinated to learn that he had also benefitted from the Pegasus program years before, as a barrister traveling to New Zealand to study there.

Continued * After watching client interviews and trial preparation for some of the cases I would be seeing in the weeks to come, Mr. Goudie got me started right away in even more practical observation of trial work, including an assignment at the Central Criminal Court (a.k.a. the Old Bailey) in which I met barrister Mark Tomassi. Mr. Tomassi was acting as defense counsel for a young man charged with several co-defendants in an aggravated battery/attempted murder case, the facts of which were remarkably inflammatory and undeniably heinous. The question for the jury in the case predominantly revolved around which of the co-defendants were responsible for each the acts leading to the severe injuries, including massive burns, that the victim sustained. On several occasions, I was able to accompany Mr. Tomassi and his colleague, barrister Tyrone Silcott, to the prisoner holding area in the underground levels of the Old Bailey to discuss the progression of trial with his client. Watching Mr. Tomassi interact with his client, with the court, and with his colleagues left little doubt as to both his experience and his remarkably gifted nature within his chosen profession. Outside the courtroom, we had discussions ranging from politics to practice management, to life in general, and I once again felt that I had gained a friend and a colleague in the profession, regardless of the fact that we practice thousands of miles apart. As I continued to observe trials, Mr. Goudie had a prosecution of a drug distribution case coming up soon that he suggested I attend. I had read through a considerable amount of the voluminous evidence in the case, and when I accompanied him to court, I was able to witness some of the intriguing differences in our jury selection process between the United States and the United Kingdom. Jurors in the U.K., as I knew, were selected at random—almost purely at random, in fact; little is done to determine whether there might be any level of unseen bias or acquain- tance with the case compared to the more exhaustive system of jury selection in the criminal courts in the United States. A jury for a criminal case in Florida, depending on the charges, may take as little as an hour or as much as several days to select (or even weeks, in a high profile case with much pretrial publicity). In my experience, the average jury selection time for a serious felony criminal case is somewhere in the neighborhood of a few hours to a half day. By contrast, it seems a jury for most kinds of cases in the U.K. can be selected in little more time than it takes to make a cup of tea. In the prosecution I witnessed, this random selection did have some ramifications in that an individual who worked for the Metropolitan Police had been selected; although he had no direct knowledge of the case in question, it was agreed by the parties that in an abundance of caution, he should not sit on this particular jury in which there were several witnesses from the Metropolitan Police. Unfortunately, this revelation came after the second day of testimony in the trial, which necessitated replacing at least the one juror, and potentially the entire venire. Although in the United States, this would be less likely to happen given the scrutiny of the venire by both sides and the court, I must agree with Mr. Goudie’s contention that although time may have been lost through this turn of events, United States courts spend a great deal of time dealing with jury selection that could be considered “lost” as well from a barrister’s perspective. As I watched Mr. Goudie and his opposing counsel (“My Learned Friend,” as it is customary for barristers in the U.K. to call their counterparts on the other side) give their detailed statements to the judge and jury, and conduct examinations of witnesses on the stand, I was struck by the respect and professionalism with which they treated one another—and even one another’s arguments. Objections were rare, and when a disagreement was apparent, it was handled relatively easily and with much more deference and less argument than I expected. There was no ridiculing some perceived “fantastic notion” of opposing counsel, or engaging in debate over halfhearted but standard motions for acquittal or disingenuous propositions for the jury to consider—and in fact, none were offered by either side. It was perhaps a bit embarrassing for me to realize that I actually noticed this specifically, which of course means that in noticing its absence, I am at least somewhat conditioned to its presence. “Zealous advocacy” is sometimes used to justify all ends of behavior that is unethical or borderline so. The bifurcate duties of an attorney in the United States to his client as well as the court often spur long ethical discussions over what one can do and should do and to whom the greatest duty is owed in various situations. Although I’m sure the same considerations apply in the U.K., and I’m equally sure that some of the kinds of negative interactions between counsel that I mentioned do happen, it struck me that the sometimes “rough and tumble” trial advocacy that is often championed in the United States (by trial advocates if not the judiciary) would seem exceedingly rude and out of place in the setting of a British courtroom. This is not to say that I failed to observe highly competent opponents striving mightily for their position, but rather, the entire affair at least seemed far less emotionally contentious and more intellectually so. With perhaps a bit of culturally biased cynicism, I wondered whether an American jury would realize the parties were even in disagreement and if so, about what exactly. Trial advocacy in the United States seems to command a more impassioned series of pleas to the jury, and the question seems only to be what level of emotional persuasion is appropriate and what is unfair or over-the-top. This may be a cyclical phenomenon as well, as juries in the United States have perhaps come to expect to use the “feel” of the arguments in a case as a lens through which to view the facts. Seldom can one view an impassioned argument and not get a sense of who is winning; I suspect it is more challenging work when the parties are more detached emotionally and arguing with more formal flair.

Continued * In both Edinburgh, Scotland, and Belfast, Northern Ireland, the Pegasus hosts provided an excellent tour of the “library system” of advocate life. The Faculty of Advocates in Edinburgh and the Bar Library in Belfast are home to the advocates’ desks and the central locale of most of the advocates’ work outside the courtroom. The Faculty of Advocates is a large and ancient library, with books on the shelves dating back well before the Declaration of Independence was signed in the United States. I half-jokingly commented that anything half that old in the United States would be preserved under plate glass and touched only with sterile gloves, to which the librarian commented that there were likely some microbes of the Black Plague hanging out between the pages in some of the older volumes, so perhaps that was wise anyway. Scotland’s legal history, and in fact the entire legal system, is distinct from that of England in many ways, and some of those distinctions give rise to a notable sense of pride in maintaining the separate traditions. Unlike London’s expansive geographic layout, Edinburgh was formerly a walled city, and its architecture is largely centered around the downtown “Royal Mile” such that the majority of all Edinburgh’s legal world and business district is within a short walking distance. Likewise, the architecture of Edinburgh is largely thematic and similar, with spires and stonework reminiscent of Edinburgh Castle. In particular, the Scott Monument, visible the moment one steps out of the train station, is a prominent central feature that exemplifies the style in a superlative way. To be sure, the entire “feel” of the city, including its legal community, is vastly different from that of London, and after days of taking in as much as possible, I felt I had only scratched the surface of an absolutely captivating city. Belfast, Northern Ireland, seemed at times the polar opposite of Edinburgh. The Bar Library, in which advocates rent desk space for their legal work, is much more modern and appears more bustling, but in essence still much more similar to the Faculty of Advocates in Edinburgh than the chambers system in London. Belfast, however, is a large port city, more expansive than Edinburgh but less so than London, and there is a certain industrial feel to the city. Though partisan political violence has declined sharply over the last decade, there are still occasional spikes in domestic terrorism, which is heavily reflected in building security such as blockades and high walled structures, razor wire and increased courthouse security policy. For example, when I began to take some notes of my observations while sitting in an enclosed, secure public viewing area behind the criminal defendants’ “dock,” I was politely informed that no note taking was permitted unless I had previous authorization as a member of the press. Later, the Pegasus host explained that there had been a number of cases of witnesses and jurors being killed or intimidated, and in fact members of the judiciary shot or killed by bomb blasts in recent memory. Criminal cases involving charges of terror- istic activities, in fact, have recently been excluded from the requirement of a trial by jury in the U.K., in response to the fact that jurors have been killed after returning a verdict of guilty. This has an understandably chilling effect on the behavior of future jurors in similar cases. Nowhere in the U.K. was it more apparent the reason for such a significant modification of the rules of criminal procedure than in Belfast. The most prominent impression of Belfast with which I was left was highly positive, however. The members of the legal profession with whom I spoke were obviously highly competent and dedicated individuals working to uphold the first class justice system that I observed. I was left with a clear sense that the best test of the stability and effectiveness of any system of law is in how it addresses challenges and succeeds in maintaining its rich legal traditions, the dignity of the profession, and a commitment to the ongoing process of ensuring criminal justice and civil remedy. While in London, Belfast, and Edinburgh, I found each of the clerks, advocates and judges with whom I spent time to be extremely engaging and ready to discuss the mechanics and the intricacies of their respective roles. Often, by observation, I was able to draw out distinctions between the procedural issues and barraged them with questions and comparisons which they patiently answered with great insight into the commonalities and differences of our respective judicial systems. One of the most striking findings of these sessions was the universal nature of some of the complaints common to all of our systems—the role of evidence admissibility in the outcome of trial, the nature and value of character evidence, congestion of dockets and the most efficient means of balancing that with the rights of individual defendants and crime victims, and emerging areas of the laws regarding human and civil rights. Another area of consistency among the advocates and judges in England, Northern Ireland, and Scotland was the strong and persistently stated belief that cases are not simple solely because the types of facts involved are common—even where facts are similar, there was always due respect given to the individual facts of each case and an abiding faith that justice in the ultimate outcome was best assured by professionalism and adherence to the rules of procedure. Although cynicism must exist everywhere, I saw little of it—either at a surface level or pervasively ingrained—throughout my time in the United Kingdom. Barristers and Solicitors There are always distinctions that we members of the legal profession draw among ourselves. Civil attorneys and criminal practitioners, trial advocates and transactional attorneys, large firm associates and small firm or solo practitioners. In truth, most of us are something of a blend, and certainly our law school training and bar examina-

Continued * tions require us to be able to flex between these roles even if we go on to handle only very specific kinds of cases. The contrast between the roles of barristers and solicitors, however, is much more stark. This is true even in modern efforts to develop a hybrid class of “solicitor advocates” to perform the functions of both; if one is feeling the day to be quite dull, randomly inviting opinions from within the legal community regarding the role of solicitor advocates is sure to provide enlivening discussion. The single most useful analogy I garnered to wrap one’s brain around the differences compares solicitors to general practitioners in the field of medicine, and barristers to internists or surgical specialists. If one has a symptom or complaint, one sees his general practitioner, who may help solve the problem entirely. If surgery is required, however, or specific consultation regarding treatment for a disorder, one is most often sent to a specialist. Like all analogies, this one is imperfect, but it does recognize the huge differences between the practice areas of a family doctor and, for example, an endocrinologist. In short, if one has a legal problem, the most usual avenue is to seek out a solicitor. The solicitor and his staff, most notably the investigators, research the case and suggest the avenues by which to pursue the desired outcome. Among these avenues might be the hiring of a barrister; only a barrister can argue the case in court (and only the barrister can wear the wig and robe necessary to do so.) The solicitor is given instructions—a combination of the client’s wishes and the facts of the case as stated to the barrister. A client’s “instructions” may not be well informed by the law, or may not necessarily be the best way to accomplish the goal, but the solicitor (as well as the barrister) must be cautious not to suggest an alternate version of the facts, but work within them for the best outcome. In other words “I didn’t do it” becomes an instruction that precludes a defense of self-defense, and “I didn’t mean to do it” becomes an instruction that precludes a defense of identity. Barristers spend little time, by comparison, working with the client directly. They often meet with the client to discuss the case, the strategy, and how the progression of events is unfolding during trial, but their role is as an advocate to the court of the client’s instructions. The client is not nearly as involved in the conduct of the trial as is typical in the United States; this is in fact memorialized in the placement of the criminal defendant in the “dock”—a secure, boxlike viewing area at the rear of the courtroom, from which he has little interaction with the barrister once testimony and introduction of evidence have commenced. I got to speak in depth with three solicitors during my time in the U.K. The first was a solicitor who participated in a training weekend at Wotton House outside London as part of a trial advocacy program. The Wotton House training was an intensive trial advocacy course, hosted by the Inner Temple, in which civil and criminal practitioners are divided into separate groups by practice area, then given hypothetical cases for which to prepare skeleton arguments (essentially case briefs), oral arguments, direct and cross examinations, and appellate arguments. In meeting one of the solicitors invited as a speaker to my small group, I was struck by his professionalism and sense of purpose, and it was clear to me that he was the sort of solicitor a barrister would consider to be part of a broader legal team. There can be, at times, some tension between the groups, so I was pleased to see this fact. The commentary and critique given during this training to barristers in their first few years of practice by their more experienced counterparts was a fine example of fostering excellence through mentoring outside the general academic realm. On another occasion, a solicitor for a criminal defendant at the Notting Hill Metropolitan Police Station spent a good deal of time discussing his role with me before allowing me (after appropriate binding assurances of confiden- tiality) to observe some of his interactions with his client before and during a police interview. I was most interested in the fact that the solicitor was not simply telling his client to exercise his right to remain silent, as would seem to be the default position in the United States (in fact, the “right” to remain silent is not at all like that enjoyed by criminal defendants in the United States) Instead, the barrister discussed the case facts with the client, then discussed his options and indicated that based on the facts involved, it was important to be truthful in his statement in order to achieve the best outcome at a future time. This is in part due to the fact that the absence of a statement to the police during an interview can in fact be used against the client, and when weighing any damage that might come from the statement, a solicitor must simultaneously weigh the damage of not making a statement at all and allowing a jury to later derive negative inferences from that silence. Of course, in the United States, a jury is instructed that they may not use a defendant’s right to remain silent against him, and any comment on the choice to exercise the right of silence, while fair game in the U.K., is forbidden in the United States and may in fact cause a mistrial. The third solicitor with whom I had the opportunity to speak was a remarkable man by the name of Gideon who works frequently with Charter Chambers. It was quickly obvious that he loves his vocation nearly as much as his avocations in the realm of music and songwriting. I found him to be a wealth of information and practicality, who very forthrightly described his thoughts and feelings about many of the observations I had made about the similarities and differences in our respective legal systems. Mr. Tomassi and Mr. Goudie of Charter Chambers also partici-

Continued * pated in parts of our conversation during this impromptu session after the regular workday. As my time in the U.K. was drawing to a close, I found our conversations to be much like a welcome debriefing exercise; so many questions were answered and thoughts generated in such a brief span of time, and with little concern that it might be impolite to ask or misconstrued as criticism, that I considered our little philosophy session to be among the most valuable interactions I had during my stay. In sum, the Pegasus program has going for it some incredible representatives of the legal profession in the U.K., and the informal discussions to be had with these individuals while walking to and from court, traveling on the train or subway, over a midday meal, or after the workday was over were the most memorable and informative imaginable. Plea Negotiations Quite simply, plea negotiations don’t really exist in the U.K. in criminal cases, or at least not in the form that is commonplace in the United States. A criminal defendant may choose to enter a guilty plea early on, for which he will receive a specific percentage deduction from the “standard” or presumptive sentence he would otherwise face; a later plea, including a plea during the pendency of trial, will likely result in a reduction in that percentage; or he may choose to proceed to trial, in which case—much like in the United States—the judge may increase the sentence based on the facts and circumstances of the case if the defendant is convicted. Overall, comparatively fewer cases of what would be considered misdemeanors in the United States proceed to trial in the U.K. One reason for this is that police have the option (at their discretion) of issuing a “caution” for minor crimes. Similar to a pretrial intervention agreement, the defendant is arrested and then, if cooperative and lacking a prior record for the particular type of offense involved, released after booking with essentially a warning. The discretion permitted the police in issuing a caution, along with the obvious impact this has on a defendant’s decision whether to be cooperative at the risk of incriminating himself, make this an oft-used and valuable tool. Overall, the lack of plea negotiations does not appear to have stalled the criminal courts; however, in general sentences tend to be on the lighter side as compared to many criminal jurisdictions in the United States. Cases are filed by the Crown Prosecution Service (CPS); some are then prosecuted by barristers employed by the CPS, while others are contracted to private barristers for prosecution who work with the CPS to appear in court and try the cases if necessary. Police work directly with the CPS to prepare cases for prosecution, and the entry level consideration of whether a case will be pursued depends upon the ability of the CPS and the police to agree that sufficient evidence is both available and admissible to proceed. This is not particularly different from the way things work in the U.S.; however, in many cases the CPS itself will not be doing the prosecuting, which adds an interesting third party perspective into the mix—that of the barrister hired to prosecute the case, who must essentially treat the CPS as his client and operate on the wishes of the CPS in how to proceed. The Courts As mentioned earlier, many of the courts in London are decentralized geographically. I was struck by the number of courtrooms I visited, as well as by the fact that when I left, I still hadn’t nearly seen them all—rather, I had seen only a fairly representative sample. The Crown Courts—depending on their location—can appear much like a small, single story courthouse, about the size of a small elementary school in a neighborhood setting, up to a large, multilevel, busy, and somewhat more ornate affair. It was worth the travel to see the variety between courthouses, but the manner in which cases were heard and the level of attention to procedural detail was virtually identical between courts. In the Magistrate’s Court, more the equivalent of a County or misdemeanor court, the cases went quickly but were more voluminous, and the clerks’ roles were more prominent. According to statistics from Her Majesty’s Court Service, 95% of all cases are completed there. Although I didn’t get to spend nearly as much time in the Magistrate’s Courts, I found my experience there intriguing in that there really is not a precise parallel in my experiences within the United States. In Magistrate’s Courts, there are the equivalent of “lay” judges—individuals appointed by the Crown, whose role, much like the collective role of a grand jury, is to hear the facts of the case and make a decision based on them. Unlike a grand jury, however, the Magistrate’s role also includes sentencing. These Magistrates are unpaid (though they do get some payment for expenses), are appointed long term, and retire at age 70. Although they typically have no legal qualifications in the sense of having attended law school or having been barristers or solicitors themselves, they do receive extensive training, and are advised by the clerks in matters of law. As a practical matter, the clerk’s role ensures more consistency and adherence to common procedural rules. The Magistrates sit in a panel of three, and hear the equivalent of misdemeanor criminal cases, as well as civil cases including some family law matters and regulatory cases. The jurisdictional level for criminal cases includes matters in which a defendant may be sentenced to up to six months’ imprisonment, though interestingly, if the defendant is

Continued * found guilty after hearing the facts of the case, the Magistrates may refer the matter to the Crown Courts for consideration of an even higher penalty. The manner of dress in the courts is an intricate one, influenced by a number of factors, and a substantially voluminous report could be written on this matter alone. The history tied to each of the garments is equally rich with tradition. In short, most attorneys in the U.S. are familiar with the typical barrister’s manner of dress, with wig and robe. In fact, barristers’ wigs are usually very similar between the barrister’s gender, the type of case, and role, but different from the wigs and robes worn by the judges in most cases. Starting with the barristers, the wig is essentially a career garment—one of good quality, at a cost of more than $500 USD and up, intended to last for years. The robe or gown—which at first glance looks very similar to a traditional black judge’s robe in the U.S., in fact has some interesting differences apart from variations in the form and fit. One of these is the presence of a small pouch attached to one shoulder on the back of the garment and attached to a flap. When I asked Martin Goudie of Charter Chambers about this, he related a fascinating story to me: the “fee pouch,” as it is called, was originally developed because a barrister would, due to his station, not wish to be seen accepting money, negotiating a fee, or counting out his fee in public. Instead, if one wished to hire the barrister on a particular case, coins would be placed from behind the barrister into this fee pouch. The barrister would then flip the pouch over his shoulder and look inside. If the amount within was sufficient, the barrister would take the case. If not, the pouch would be flipped back over the shoulder and the coins dropped onto the floor. After a barrister has garnered a good deal of experience, usually at least ten years in duration, he may apply for appointment as a “QC” or Queen’s Counsel. The decision to accept the application is now made by a nine-member panel of legal professionals and laymen, rather than the government, but it is still formally a royal appointment. Not all barristers choose this path; some extremely well qualified barristers enjoy their role and remain in it without the QC status. Historically, a QC’s role differed from that of a barrister more significantly than it does today. A QC typically works in court with a junior barrister and essentially acts as lead counsel; not every case is appointed a QC as counsel, however. The QC is entitled to wear robes of silk, and thus the process of appointment is called “taking silk.” Crown Court judges (and in fact, all judges who wear wigs) wear a different style of a wig than barristers. Rather than the large horsehair curls of barristers, most judges’ wigs are closely curled like wool, with a dividing part in the middle. Crown Court judges, when sitting on criminal cases, wear a violet robe with a red sash across the shoulder; the color seems bright, modern, and in stark contrast to the black robes and white wigs of barristers. Traditionally, however, the color schemes and trappings of ornate tradition have been even more intricate. In modern times, the question has been formally introduced into the legal and legislative process as to whether these trappings of tradition are antiquated and should be removed in favor of more modern or even corporate attire. The legal community responded in ways that are telling, and that match my observations while in London, Edinburgh, and Belfast. The rich tradition seems to imbue the court system with a more hallowed, almost sacred air that constantly reminds every- one it touches that many have come this way before; that the stability of time-honored traditions is present and that the proceedings taking place are a solemn affair in which each participant has a role. This is perhaps even more true in the realm of criminal justice, and so it was ultimately decided that in most civil proceedings, judges would don more modern attire, much as a judge would in the United States, of a simple black robe—or, in fact, dispense with the robe altogether in favor of business suit attire. In most criminal proceedings, however, the traditions were kept as a reminder of the traditions of the court. Notable exceptions to this include hearings in which a juvenile defendant might be intimidated by the traditional attire; in these cases neither the barristers nor the judge don the traditional garb, opting instead for the suits more typical of attorneys in United States courts. At the Central Criminal Court, or “The Old Bailey,” the legal history is perhaps deeper than anywhere in the United Kingdom. It sits near the old Roman London Wall on the site of the old Newgate Prison (“Newgate” referred to one of the gates in the Roman Wall to the city of Roman Londinium in the first millennium.) In the lower portion of the Old Bailey, unnoticed by the general public, sit portions of Roman London in the form of stone streets and walls, now the literal as well as metaphoric foundation of what is now the most famous court in the U.K. and possibly the world. Over that rest some remains dating to the Newgate prison era of 1188 until 1902, and the original court is mentioned as far back as 1585. There is some evidence that criminal trials have now been conducted on that site for a time spanning three millennia. The relatively new current building, opened in 1907, is far older than most courthouses in the United States, and itself has seen damage from bombings during the Blitz of WWII, as well as more recent damage from IRA bombs. In fact, one shard of glass embedded by an IRA bomb in 1973 still sits in one of the arches in the main hall of the building, apparently left as a reminder of the importance of vigilance. Although the maxim that “justice must be seen to be done” is strongly upheld in the U.K., and trials are generally open to the public, the incredibly ornate and richly historic interior of the Old Bailey is now viewed by a much smaller subset of people—employees, clerks, barristers, and security personnel. Only rarely is it now viewed by the general public, for

Continued * security reasons. During my time with Charter Chambers, I spent many days in the Old Bailey, observing a trial with barrister Mark Tomassi as defense counsel, involving allegations of serious violence and a badly injured victim. I was able to meet three judges during this time, all of whom were very accommodating in taking time to discuss their roles and even some of the cases they had recently heard. Each of them struck me as being remarkably approachable, congenial, and professional to another member of the legal profession. Regardless of how the trappings of tradition might make their respective roles in the courtroom appear to be distant and detached from the advocates before them, they each spoke as one member of a shared profession to another. The Right Honorable Lord Justice Moore-Bick of the Appellate Courts, at the Royal Courts of Justice, gave quite an example of the volume of work that goes into reviewing, understanding, and deciding cases at the appellate level. Unlike in United States appellate courts, barristers typically have no artificial limits on the presentation of their cases; certainly all salient points are well fleshed out by the barristers’ arguments and their responses to the questions asked by the court. The robes worn by the Lord Justices at the RCJ are reminiscent of the clergy—long black robes with smaller colored marked strips near the collar. This design is a newer development; its simplicity has been both applauded and criticized. To an outside observer, however, like all of the traditions I witnessed, what at first might seem unusual quickly becomes an expected and unassuming part of the setting. Surprisingly, the Supreme Court of the United Kingdom, formed recently in 2009, has thus far chosen to forgo robes or wigs at all, and its members sit in standard business dress. In conversations with Lord Walker of the Supreme Court, I was struck by the remarkable way in which the air of authority and the pleasant approachability of the man himself were merged beyond the simple authority of the role in which he sat; certainly a wig robe could have been considered unnecessary at any rate as a reminder of authority. Beyond that consideration, the Supreme Court, as a newer creation, really does not share quite the same tradition as some of the older courts, and to carry forward traditions of the prior iterations of high courts in the U.K. could well have led to some confusion. The Supreme Court also sits in its role as the Privy Council, essentially deciding some appellate cases for territories of the U.K. which may have substantively quite different fields of law. One striking example of this is in situations involving the death penalty— no longer practiced in the U.K. proper, but still permissible in some of the territories, particularly among those in the Carribean. Thus, a Supreme Court Justice in the United Kingdom, having been raised in a society in which the death penalty has been abolished, trained in law there and having practiced as a barrister for many years before rising into the judiciary, ultimately may have to decide a case in which the operative question is whether the death penalty will ultimately be imposed. In the official badge of the Supreme Court of the United Kingdom, the merger of modernity and antiquity is again apparent. The Tudor rose, leek, thistle, and flax, representing England, Wales, Scotland, and Northern Ireland, respectively, are laid out in a more traditional form complete with the Greek letter Omega and the Crown, though also prominent in the halls of the Court is the more abstract version, created by Sir Peter Blake (who is also notable for having designed the album cover of the Beatles’ “Sgt. Pepper’s Lonely Hearts Club Band.) Equally interesting for an American visitor, Abraham Lincoln is posted near the entrance to the Supreme Court of the United Kingdom in the form of a large statue facing Westminster Abbey and the Parliament Building. This was not any specific comment on the role of the Supreme Court, however; the Lincoln statue was unveiled there in 1920 when the building the Supreme Court now occupies, the Middlesex Guildhall, was only a few years old. Interestingly, both the period of Lincoln’s presidency in American history and the details surrounding the placement of the Lincoln statue in Parliament Square are rich with controversy—whether this is a quite fitting metaphor for the role of the new high court or a foreboding portent would make an interesting debate. Throughout my experiences in all of the courts I observed, there was another commonality—the judges did not merely sit on the bench and observe; nor even observe and merely retain, nor even observe, retain, and then render opinion. Rather, the judges consistently monitored the testimony for clarity and brilliantly “summed up” the testimony for the jury. Being used to hearing only jury instructions from the judge after closing arguments, I was unpre- pared for the duration, extent, and especially the detail and impartiality I saw within these summations. Perhaps my biggest doubt at the outset was that a summation could be given effectively that was not at least somewhat biased, particularly when certain commentary is allowed regarding witness credibility. In actual fact, I found in each case that the judges took great care to render their summation in as carefully balanced and professional a manner, and with as much detail, as possible, and I was surprised at the fluency and professionalism with which they accomplished this daunting task. The Metropolitan Police Another of the most rewarding experiences I had while in London was spending time as an observer with the Metropolitan Police at Notting Hill Station. As a prosecutor, I often have the opportunity to work closely with law

Continued * enforcement of various agencies, and seeing the workings of a criminal justice system from the perspective of its law enforcement officers was an invaluable addition to the time I spent in the U.K. Much as I have noted in previous commentary about the trappings of tradition and their value, the symbols of British police are longstanding and known worldwide—including the traditional “bobby helmet.” Although these are not worn by all officers, they are in common use, although much like the discussion of robes and wigs in court attire, there have been discussions in recent history as to whether to abolish them as antiquated. I was glad to know this is not likely to happen any time soon. Police Detective Constable Damian Gratton was the liaison for my observations, including plenty of time for lively discussions while en route to and from a police lab across London to review the results of forensic analysis of electronic evidence for a high profile case. We discussed at length the predictable issues of differences in the laws of gun control and possession (even for on duty police officers), search and seizure, the practical aspects of sentencing of criminal defendants, and the rights of defendants to remain silent. I must admit to being forced to admon- ish myself early on in our conversation for having underestimated the incredible level of fluency Detective Gratton would have not only with the English criminal justice system, but also that of the other jurisdictions in the U.K. and even that of the United States. While I would hope that we both received some benefit from our conversations, I clearly received the more broadly versed instructor. Detective Constable Gratton also introduced me to many of his colleagues at the Notting Hill station from a wide range of areas of expertise. Fortunately, introductions went smoothly when it was realized I was from Florida; I found during my time in the U.K. that I had roughly a fifty-fifty chance that anyone I met there had been to Florida on vacation or business at some point in their lives and so we always had a familiar starting point. After the workday on more than one occasion, several of us would trade stories and anecdotes, ask questions, share answers or opinions, and occasionally marvel at how a particular aspect of one or the other system would surely solve some problems if only we could institute a similar practice to at least some degree in our own. (Obviously, we also discussed the problems inherent in some of these practices and the potential pitfalls.) It surprised me how much of the police procedure was similar. Good police work requires attention to detail and the presence of any number of intangible qualities, regardless of what the rules of one’s jurisdiction may be. When large differences were apparent, they nearly always were traceable to issues addressed by the U.S. Constitution. We discussed issues of the limits of free speech—namely, when such speech is restricted via police power for the presumed public benefit. We had detailed conversations regarding the possession of guns by private citizens and the impact and effectiveness of a near-total ban on firearms, as well as the issues that might arise in a largely unarmed police force. We discussed the differences apparent in our respective systems regarding search and seizure, and the impact it has on specific areas of criminal activity. The impacts of defendants’ statements in solving a case or strengthening prosecution efforts were of great interest to all, and we even had discussion on the intricacies of the death penalty and the prerequisites for a case to be considered for that sentence. I was always made to feel completely at ease during these conversations and in fact the entire time I was observing at Notting Hill; there was far more a sense of intrigue and collaborative sharing than one of debate about even the more traditionally hot-button political issues we discussed. Detective Constable Gratton also took the time en route to other police business to give me a first rate tour of London and point out innumerable sights of historic, legal, and cultural significance. His commentary and explanations were an absolutely integral part of my visit, as most of my travel time had previously been spent on the London Underground. Getting a geographic as well as historic orientation provided a rich context for the legal traditions and practices I witnessed. I honestly could not envision having had such a well-rounded experience regarding the criminal justice system in the U.K. without the time I spent shadowing and interacting with the good folks of the Metropolitan Police. The Future The United States and the United Kingdom obviously have legal cultures that are, like members of a family, resplendent with commonalities as well as emphatic differences. It is perhaps easier for an outside observer, who comes from a quite different background, to see the potential implications for a proposed policy change or cultural shift regarding a particular individual right or societal interest. Perhaps it is that, in lacking as many details and life experiences in the culture being observed, the observer is forced to grasp things in terms of broader concepts. After all, if it is a difference in direction that already exists in the United States, it is easy to identify the ultimate impacts as they exist in the United States. Of course, the reciprocal risk is oversimplification and drawing inferences as to outcome when all of those details and life experiences within a culture are important variables in the ultimate outcome. Nevertheless, I made note of a few concepts that piqued my interest and made me wish I had a crystal ball of time, to look forward and see the progressive evolution of certain issues and concepts. Continued * The United States has a long history of internal debate and considerable strife in dealing with issues of federal versus state authority. This was even made apparent during the confirmation process of Chief Justice of the United States John Roberts, in which a question was put to him regarding his previous use of the not uncommon term “War Between the States” to describe the conflict more commonly known as the American Civil War. There is a perception among some that referring to that war as Justice Roberts did indicated a view favoring state’s rights over the collective power of the federal government, perhaps even something that could be extrapolated into a broader meaning that the federal government’s power has been, or is today, overly expansive and contrary to some core American values. Controversy still exists over the relative roles of the issues of state sovereignty, slavery, and economic forces in the war between the United States of America and the Confederate States of America that ended in 1865. Likewise, there has been considerable expenditure of both judicial ink and private and public breath in debating whether the role of the federal government should be more limited than it has become, or whether even further expansion is needed. Even today, proponents of “state’s rights” are sometimes ascribed the legitimacy of Holocaust deniers by their detractors, while proponents of increased federal power are often labeled Marxists. The Fourteenth Amendment to the U.S. Constitution, and the incorporation of prohibitions on the federal government to state governments as well, have been the source of much legal and political wrangling. Of course, the predominant issue boils down even further than state’s rights to some degree of self-determination and into questions regarding individual rights—what they are, what they should be, and the proper scope of the federal government in either avoiding interference with them (leaving that role and choice to individual states) or enforcing some specific defini- tion of them uniformly across all American soil. That said, there are parallels to be drawn between the American struggle between individual rights, state’s rights, and federal power (both historically and currently) on the one hand, and the increasing focus on human rights legislation and the European Union as they impact the United Kingdom on the other. There were a number of times during my observation and participation as a Pegasus scholar that I found myself reflecting on these comparisons, while trying not to force a proverbial square peg into a round hole. The advent of, and increasing role of, the European Union and its influence in the law and governance of the U.K. creates a number of puzzles seeking solution. Certainly the U.K. has its own internal history with such issues between England, Northern Ireland, and Scotland; issues of self-governance and the role of the British Crown extend much farther back in history than even the first thoughts of a Declaration of Independence by American colonists. In more modern times, the decline of British imperialism has also generated significant focus on these issues. The U.S. Constitution enumerates an explicit list of individual rights and protections, and prescribes limitations on the power of federal government; certainly much conflict has arisen in defense of sovereignty at any number of levels. In the absence of a written constitution akin to that of the United States, human rights legislation on a more global level (whether it be the European Union or the United Nations) has an attractive influence on many who may rightly see a need for some mechanism to protect individual rights from government abuses and act in the collective best interests of a group of otherwise sovereign nations. For some, it also raises a spectre of the potential for equally dangerous government abuse by the erosion of a more localized sovereignty in favor of a global one. I witnessed much discussion of how human rights legislation was impacting the law of the U.K. both directly and indirectly. For some, it is a breath of fresh air—much needed reform and codification of important principles. For others, it is an imposition on more localized priorities, culture, and rights of self-determination. I can offer no sage explanations or even a firm opinion on how these issues should be or will be decided. What I can say is that the legal system I witnessed for six weeks in 2010 as a Pegasus Scholar is unlikely to bear as much resemblance to its current state in 2030 as it did in 1990, even when considering the substantial changes it had encountered in that earlier span of time. Certainly this is not unique to the U.K.; rapid development and evolution of the law in an increasingly globalized society is becoming the norm. What remains to be seen is whether and how this will impact the U.K. differently, given its rich historical and legal traditions, than it might impact other nations without the same tangible links to their own origins. Undoubtedly, the current state of legal systems in the U.K. will grow and change; the ability to do so is built into the bones of all legal systems in which individual rights and protections are routinely tested and weighed against the societal interest at large. The role of the legal profession is paramount in shaping the form of these inevitable social changes, and there will necessarily be challenges in addressing complex issues with an eye to providing balance between tradition and progression. Fortunately, it is clear from my observations as a Pegasus scholar that the concepts of professionalism, ethics, and civility are aspirations that transcend jurisdictional boundaries. I have no doubt that the members of the bench and bar, the police, clerks, and all those who strive daily to accomplish the ends of justice in the United Kingdom will undoubtedly carry on these well-established traditions of excellence in similar fashion.

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