An excerpt from the book Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)

May 21, 2012 - by Evan Whitton

May 21, 2012

An excerpt from the book Our Corrupt Legal System:  Why Everyone is a Victim (Except Rich Criminals) by Evan Whitton

by Evan Whitton

The lawyer-run adversary system used in Britain and its former colonies, including the United States, India, Canada, New Zealand, and Australia does not try to find the truth. It is the only system which conceals evidence. Our Corrupt Legal System explains why trial lawyers, famously economical with the truth, control evidence; civil hearings take weeks, months or years; in serious criminal cases, 24 anti-truth devices allow more than 50 percent of guilty accused to escape justice. By contrast, in the investigative system used in Europe and other countries, including Japan, trained judges control evidence and seek the truth; civil hearings take a few hours; 95 percent of guilty accused are convicted. It is the most widespread, accurate and cost-effective system. Russell Fox, an Australian judge who researched the law for 11 years, concluded: “The public estimation must be correct, that justice marches with the truth.”

Evan Whitton began researching the two legal systems in 1991 after observing at first hand how each system dealt with the same criminal, Police Chief Sir Terence Lewis.

Whitton was chief reporter at The Sydney Morning Herald, and Reader in Journalism at the University of Queensland. 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 is now a columnist on a legal journal, Justinian.

Dr George Miller, director of Happy Feet (Academy Award), said Whitton is “a dazzling writer, incisive and addictive.”

Phillip Knightley, twice British Journalist of the Year, called it “a masterpiece.”

Dr. Robert Moles, LLB Hons Belfast, PhD Edinburgh, says Our Corrupt Legal System “is one of the most important books I have ever read on the common law legal system”.

The book is available at bookdepository.com (free shipping worldwide), Amazon, etc. Six of his other non-fiction books are free online at www.netk.net.au/WhittonHome.asp

 

Preface

First, some definitions:

  • Justice. Maat, goddess of justice in Egypt c. 2700 BC, had a feather in her cap. It symbolised justice, truth, morality. A U.S. judge, Harold Rothwax, said: “Without truth, there can be no justice.” An Australian judge, Russell Fox, said justice means fairness; fairness to all and morality require a search for the truth; truth means reality. He also said: “The public estimation must be correct, that justice marches with the truth.” The public thus know you can only be fair if you first find out what happened. 
  • Common law. Judge-made law used in Britain and its former colonies, including the United States, India, Canada, Australia, and New Zealand.
  • The Gadarene Swine Fallacy (GSF). A group with the same beliefs is not necessarily heading in the right direction, e.g. going to war in Vietnam. England has not had a truth-seeking system for 1500 years, first by stupidity and then by cupidity, but common lawyers believe their system is the best. Justice, as Ludovic Kennedy noted, and Napoleon demonstrated, is too important to be left to judges. Or legal bureaucrats, academics, or law reform commissioners.
  • Sophistry. The art of lying is to make others believe things the liar knows are false. The motive is gain. Sophists, described by Socrates as morally bankrupt and by Plato as charlatans, taught Athenian lawyers how “to make the weaker argument appear the stronger” 2500 years ago. Nothing changes. A U.S. lawyer, Charles Curtis, said a lawyer’s function “is to lie for his client … He is required to make statements as well as arguments which he does not believe in.”

U.S. film critic Joel Siegel said, “It’s only the 99 percent of lawyers who give the rest a bad name.”  In fact, the bad name comes mainly from trial lawyers, some 40 percent of the total. The other 60 percent may be really nice persons who would never tell a lie. Common law judges are former trial lawyers untrained as judges.  

  • Corrupt. The Latin corruptus means broken in pieces. This book explains why and how justice is broken in our adversary system. It is instructive to compare it with the world’s most widespread, accurate and cost-effective system: Napoleon’s investigative (inquisitorial) system, now used in European countries, their former colonies, and Japan, South Korea and other countries.

 

Investigative system

Adversary system

Seeks truth      

Yes

No

Conceals evidence

No

Yes

In charge of evidence

Judges

Lawyers

Length of trials 

About a day

Months, years

Conviction rates

95%

Under 50%

Innocent in prison

Rare

1% - 5%

 

Why are they so different? It is bootless to ask common lawyers. Law schools, in business for only 200 years, teach little legal history and slide round problems of truth and lawyer-control. George Orwell said: “The most powerful lie is the omission.” The following may repair some omissions. 

Roman law sought the truth, but in the Dark Ages after the Empire fell in 476, England and West Europe regressed to an anti-truth accusatorial system (A accused B; B said: Prove it!), barbaric ordeals and verdict by an unknown god. Suspect witches were trussed and thrown in the river. If they sank, they were innocent. If they floated, they were guilty, and were fished out and hanged or burned to death. (Malignant cross-examination to defeat truth is the modern ordeal; rape victims have vomited on the witness box.)

Dickens said: “The one great principle of the English law is to make business for itself”, i.e. trial lawyers. In an irony that would have amused Bonaparte, it was a French organized criminal who was the remote cause of the bidness dagger being thrust into the heart of British justice. William II, son of Guillaume le Batard, institutionalised trickle-down extortion in the trade of authority (and was shot dead on 2 August 1100). Every public office, from Chancellor down, was thus for sale when the common law began in 1166. Buyers in turn extorted from people who had to deal with the office.

Extorting judges and their lawyer-bagmen formed an alliance. Law Professor Benjamin Barton, of the University of Tennessee, says judges tend to favor lawyers’ financial interests. Judge Richard Posner, a U.S. economist and appellate judge, said lawyers and judges have always been “a cartel” aiming “to secure a lustrous place in the financial and social status sun.”

Trial lawyers thus have power unique in legal systems. The common law might be termed cartel-made law. A cartel colludes to maximise members’ profits, typically by increasing prices by 15-25 percent. The lawyer-judge cartel does rather better than that.

European courts adopted an investigative system after a church-state conference in Rome, at which England was represented, in November 1215. Unfortunately, European judges perverted justice for five centuries; they wrongly believed that torture produces truth.

Lawyers’ role in a truth-seeking system is necessarily limited. English judges decided to reject the investigative system in 1219. As the truth door shuts, the sophistry door opens, to judges as well as lawyers. London’s population was then about 25,000. The public is entitled to ask: Why should we be robbed of justice because a few crooks in a small town in England decided 800 years ago that truth does not matter?

Since 1350, lawyers have been the “dominant influence” in English-speaking legislatures. That is not fair to untrained liars.

 

The Adversary System

The adversary system is a lawyer-run variation of the anti-truth accusatorial system. It is thus an oxymoron, like military intelligence and legal ethics. The system dates from 1460, when judges began to let trial lawyers take over control of the civil process. For more than five centuries, that control has enabled lawyers to omit the damaging bits; spin out the pre-trial and trial process; and procure enough pelf to comfortably retire, if they choose, to the social status of untrained, uninformed and passive judge.

Judges of course do the decent thing; they try to stay awake – Lord Thankerton enraged barristers by knitting on the bench – but do they suddenly give up sophistry? Alan Dershowitz, a U.S. lawyer, said “lying, distortion, and other forms of intellectual dishonesty are endemic among judges.”  Two examples. The rule which allows suspects to refuse to give an explanation (and gets 25 percent of guilty accused off) is based on a lie. Another lie – absolutely does not mean absolutely – has made a lot of money for Australian tax lawyers, and has cost pay-as-you-earn taxpayers billions.  

Extortion was not a 12th century aberration. An 18th century Chancellor, Lord Macclesfield, extorted bribes worth £500,000 today from barristers who wanted to be Masters in Chancery in order to extort from litigants. A barrister, Francis Elde, had to use a clothes-basket to carry the gold and notes to Macclesfield and his bagman, Master Peter Cottingham. In the late 20th century, 20 extorting Chicago judges and 50 of their bagmen, mostly lawyers, went to prison.

The cartel at work. About 1650, a Chancery judge ruled that in will cases lawyers were to be paid, not by clients, but from the deceased estates. Chancery judges then refused to finalize will cases for decades; lawyers appeared at periodic hearings to milk the estates.  Jennens v Jennens, the model for Dickens’ Jarndyce v Jarndyce, began in 1798 and ended in 117 years later, in 1915, when lawyers and judges had “devoured” the remnants of an estate worth some £500 million today.         

Lawyers did not defend criminals until the rise of blue collar organized crime in the 18th century made it financially worthwhile for them to take over control of the criminal process. The low conviction rate (see diagram above) is due to judges’ invention since then of 20 anti-truth devices, including six rules which conceal highly relevant evidence from jurors. The excuse for hiding evidence is that it makes trial fair; it protects accused from juror prejudice. That is code for: jurors are stupid.

A number of things can be said about that. No other system hides evidence. Jurors were held to be competent to hear all the evidence for 600 years, and then suddenly became stupid. The same evidence is concealed from judges when they sit without a jury. Judges must thus be just as stupid as jurors are supposed to be. Fairness means truth. The system is unfair to victims, police, prosecutors, jurors, the community, and the taxpayers who fund it.   

Alan Dershowitz said: “The American criminal justice system is corrupt to its core … The corruption lies … in its processes …” He said all defense lawyers, prosecutors and judges know “almost all” (say 95 percent) of accused are guilty. They are thus almost always, in effect, accomplices after the fact. In 1994, NSW judges sitting alone (and hiding evidence from themselves) convicted only 25 percent of accused. Honest cops doggedly investigating crime are plainly of more use to society than judges and trial lawyers.   

Napoleon had time to reform and codify the investigative system only because, by a fluke, his generals, Desaix, Marmont and Kellermann, crushed Austria at the Battle of Chicken Marengo in 1800. His system is generally accurate because trained judges search for the truth, and is cost-effective because they have no incentive to spin the process out. The system puts away more than twice as many major criminals at half the cost. On average, the cost of a libel action in England is 140 times that of a libel action in Europe.

The adversary system is biased against people in business, industry, medicine, and the media, and in favor of criminals. The bias makes business for trial lawyers and the rule of law a joke in the worst possible taste. Citizens on sophistry watch must have the hopeless feeling that any judgment or verdict may be right, or it may not.  

The remedy is simple. Common law countries already use an investigative system when they need to find the truth. Six times as many judges (and fewer lawyers) will be needed, but the law will be cheaper as well as more just. Academics will have to be retrained, but searching for the truth is easier than mugging up 24 ways to conceal or otherwise defeat it. The cartel can then be dismantled by training judges separately from lawyers, as they do in Europe.

All we are saying, is give truth a chance. But trial lawyers, academics and, behind the scenes, legal bureaucrats will offer noisy resistance, as in India (conviction rate 16 percent) when an inquiry recommended changing to a truth-seeking criminal system.

Lawyers are only 0.2 percent of the population, and their utterance may be mere sophistry informed by the Gadarene Swine Fallacy, but their access to the media is as disproportionate as their numbers in legislatures. The parrot-house, however, can be safely ignored. The public knows that justice means truth; the vast majority of voters will support change to a What happened? system. 

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