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Our Corrupt Legal System

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Our Corrupt Legal System Evan Whitton was Editor of The National Times, Chief Reporter at The Sydney Morning Herald, and Reader in Journalism at Queensland University. He received the Walkley Award for National Journalism five times, and was Journalist of the Year 1983 for ‘courage and innovation’ in reporting an inquiry into judicial corruption. He began researching the West’s two legal systems in 1991 after observing how each system dealt with the same criminal, police chief Sir Terence Lewis. He is now a columnist on a legal journal, Justinian This is his eighth non-fiction book Whitton’s work noticed ‘A dazzling writer, incisive and addictive’. – Dr George Miller, director Babe, Happy Feet. Trial by Voodoo (1994) ‘The only book in the language that critically examines the law as a whole.’ – Professor Alex Ziegert, Sydney University. The Cartel (1998) ‘Evan Whitton has said, with I think consummate wisdom: “Truth and justice require … the abolition of rules for concealing evidence.’ – Sir Laurence Street, former Chief Justice, NSW. ‘Whitton has a remarkably extensive knowledge of the legal system and the way it works ... rich in anecdote … a wealth of historical knowledge and research … His insights are always valuable...’ – Justice Ian Callinan, High Court of Australia. Serial Liars (2005) ‘ … confronts all the major lawyer arguments, and disposes of them.’ – Brett Dawson, former Crown Prosecutor. i Other books by Evan Whitton Can of Worms (1986) Amazing Scenes (1987) *Can of Worms II (1987) *The Hillbilly Dictator (1989, *updated edition 1993) *Trial by Voodoo: Why the Law Defeats Truth and Democracy (1994) *The Cartel: Lawyers and Their Nine Magic Tricks (1998) *Serial Liars (2005) The books marked * are available online at www.netk.net.au/WhittonHome.asp OUR CORRUPT LEGAL SYSTEM Why Everyone Is a Victim (Except Rich Criminals) Evan Whitton iii For dearest Noela, without whom not a word of any of my books would have been written. Copyright © 2009 Evan Whitton All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author. The information, views, opinions and visuals expressed in this publication are solely those of the author(s) and do not necessarily reflect those of the publisher. The publisher disclaims any liabilities or responsibilities whatsoever for any damages, libel or liabilities arising directly or indirectly from the contents of this publication. A copy of this publication can be found in the National Library of Australia. ISBN: 978-1-921681-07-3 1. True Crime. 2 Justice. 3. Accusatorial system. 4. Anglo- American adversary system. 5. Evidence. 6. Anti-truth devices. 7 Perversion of justice. 8 Judges. 9 Legal history. 10 Lawyers’ ethics. 11. European investigative system. Published by Book Pal www.bookpal.com.au Set in Palatino Linotype 11 pt Inquires to: [email protected] iv Contents Significant events ............................................................... 2 Abbreviations...................................................................... 5 Foreword ............................................................................. 6 Preface ................................................................................ 12 A. What is justice? ........................................................... 19 B. Origins of the two systems ....................................... 24 1. Organised criminals start common law ................... 27 2. The legal cartel begins ................................................. 31 3. Origin of the investigative system............................. 32 4. Magna Carta: a tax evasion scheme .......................... 34 5. The Fourth Lateran Council ....................................... 35 6. The cartel rejects truth ................................................. 36 7. Judicial torture in England ......................................... 38 8. Judicial torture in Europe ........................................... 39 9. British judicial extortion in the Middle Ages .......... 41 10. Origin of the adversary system ................................ 44 11. British corruption from 1455 .................................... 47 12. Origin of criminal adversary system ...................... 51 13. A glorious lawyer-driven revolution ...................... 53 14. Origin of law schools ................................................. 57 15. US fatally persists with common law ..................... 59 16. Jennens v Jennens (Jarndyce v Jarndyce) ............... 60 17. Bonaparte reforms investigative system ................ 63 18. The moral failure of law schools.............................. 69 19. Judicial corruption in common law world............. 73 v C. What Common Lawyers Do ..................................... 84 1. Down the ages .............................................................. 84 2. Serial lying ..................................................................... 86 3. Ethics .............................................................................. 88 4. The cartel: law as business .......................................... 98 5. A feeding frenzy of lawyers ..................................... 100 6. The law as game ......................................................... 102 7. Zealous prosecutors ................................................... 103 8. The judge as Humpty Dumpty ................................ 105 9. A country’s values ..................................................... 115 D. The corrupt civil process ........................................ 116 1. Interminable pleadings ............................................. 118 2. Interminable discovery ............................................. 120 3. Unfair bias in favour of plaintiffs ............................ 124 4. Blackmail (theft by extortion) ................................... 140 5. US workplace disputes: not a fair go all round ..... 140 6. Larceny by trick: tax evasion .................................... 141 7. Class actions ................................................................ 148 8. Defence of civil adversary system ........................... 154 E. 24 anti-truth devices ................................................. 157 (*indicates a rule which conceals evidence.) *1. Concealing suspects’ evidence ............................... 160 2. Prove it! ........................................................................ 164 3. Legal aid ...................................................................... 165 4. Improper use of presumption of innocence........... 166 5. Precedent ..................................................................... 167 6. The theory of the case: fabricating a defence ......... 168 7. The abuse excuse ........................................................ 171 8. The self-abuse excuse ................................................ 172 9. The lecture ............................................................. 172 vi 10. Delay .................................................................... 173 11. Plea-bargaining ................................................... 175 12. Preliminary (committal) hearings..................... 175 13. Separate trials ..................................................... 176 14. Only a bit mad: diminished responsibility ...... 177 *15. Concealing client-lawyer conspiracies ........... 180 *16. Concealing hearsay ........................................... 184 *17. Concealing a pattern ......................................... 186 *18. Concealing improperly gained evidence ....... 191 *19. Concealing any or all evidence (Christie) ....... 197 20. Cross-examination .............................................. 204 21. Inscrutable jurors ................................................ 210 22. Reasonable doubt ............................................... 212 23. Double jeopardy ................................................. 217 24. Judges second-guessing jurors .......................... 219 F. Sliding round truth problem ............................. 222 G. Conviction rates .................................................. 226 H. Convicting the innocent .................................... 231 I. Contempt: guilt presumed .................................. 238 J. Defence of the criminal system ......................... 241 K. A criminal enterprise? ....................................... 244 L. Impetus for change ............................................. 246 M. Convergence fails .............................................. 251 vii N. The remedy .......................................................... 254 1. German and French civil procedure .................. 256 2. Criminal procedure in France ............................. 260 3. The two systems compared ................................. 263 4. How to get justice ................................................. 267 Definitions ................................................................ 272 Acknowledgments................................................... 276 Bibliography............................................................. 277 Index .......................................................................... 282 viii Significant Events Significant events c. 2700 BC. Egypt says justice means truth. c. 450 BC. Sophists teach Athens lawyers to lie. 449 BC. Truth-seeking Roman law begins. 476 AD. Roman Empire falls. Dark Ages
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