This week I continue with the theme of truth and lies. After touching on the price of truth last week, this essay explores the ‘cost of a lie’.

In 1952, Detective Ray Kelly arrested notorious gangster Chow Hayes for the shooting of a boxer in a Sydney nightclub. According to many historians, the two hard men reportedly had an understanding about what would happen next.

‘Chow, I know you did it,’ Kelly said. ‘And I will tell as many lies as I can to convict you and you will tell as many lies as you can to beat it. Is that square?’

‘That’s fair enough,’ Chow replied.

Historians can argue over the accuracy of the events leading up to the final conviction, but one thing that can’t be debated is the poignancy of the statement. Thirty years later, Roger Rogerson, a notorious Australian detective suspected of an array of corrupt activities throughout 1970′s and 80′s, including armed robbery, drug trafficking and the murder of at least one criminal, jokes with his lawyer in the cult classic Blue Murder that his pending court case is all about who can lie the best.

Michael Connolly, author of more 20 crime novels set in Los Angeles, two of which have been produced into film (Blood Work & The Lincoln Lawyer) sums up the adversarial judicial system a little more eloquently, describing it simply as a ‘contest of lies’.

As a former law student, I can assure you this is not how it is described in university, but after having worked in the criminal justice system for more than 15 years, I completely concur with all the above statements. So how can a system based on evidence, founded by the whole truth and nothing but the truth, and insulated against lies by laws of perjury, become a contest of lies?

Much of it comes down to the burden of proof in criminal trials. Most people know the term Reasonable Doubt; even just a five-minute channel surf on nightly television will announce its legal importance on popular dramas such as Law & Order, CSI or whatever crime show of the month happens to be on air. As the term suggests, Reasonable Doubt is premised on the notion that a defendant should not be convicted unless the evidence presented is so clear that a reasonable person would consider it fact.

Theoretically, it allows a little flexibility, but in reality legal professionals will openly admit that for most jurors, any doubt is reasonable. Why? Without going into the art or skill of jury stacking, where both the prosecution and defence have a chance to select or reject potential jury members, or the deliberate attempts to bore jurors into sleep, the answer is far simpler. Basically, people do not want to send another person to prison unless they are 100% sure they are guilty.

If you’ve ever done jury duty or spoken to those who have, you’ll know what I mean. As a juror, if for an entire day you were tired and missed vital evidence because it was delivered in a (probably deliberate) manner that made you sleepy, how can you possibly convict another person? If you are not privileged with the knowledge of an offender’s prior history because it might sway your opinion, the person in the dock may well appear like a saint. A wolf in sheep’s clothing.

At a baseline level, the adversarial system places the burden of proof on the prosecution, which in philosophical terms would prefer 100 guilty men go free than send 1 innocent person to prison or death. Depending in your moral perspective, your experiences in life and opinions on justice, perhaps you may consider this a fair rationale, but what about in practice? If those are the theoretical odds, 1 in 100, then is it reasonable for us to expect anything better in practice?

In bygone eras, police (and their prosecution counterparts) had a toolbox full of tricks to extinguish reasonable doubt. Loading offenders up with planted evidence was a classic. The “verbal” was another, where statements were fabricated by police and criminals conned, forced or tricked into signing them. Moving down the list was the use of blackmail or threats to family members or physically forced confessions. Telephone book beatings, pencils pressed into the ear, tight hand cuffs, whatever it took.

Were innocent people sent to prison because of these practices? Of course they were.

Perhaps the most famous case in which this occurred is that of Rubin “The Hurricane” Carter, a professional boxer and petty criminal falsely charged and convicted for a double murder in New Jersey. The cost of a lie (or a combination of lies and racism) in this case lead to what can only be described as a gross miscarriage of justice.

Another is the case of Lindy Chamberlain, a mother accused of murdering her nine-week old daughter Azaria, while camping in the Australian outback. For more than thirty years her legal team claimed a wild Dingo had taken and killed the baby, but a body was never found and she spent three decades fighting the case, only recently clearing her name. Again, the cost of lies (police incompetence, as well as the ‘trial-by-media’ mindset of the Australian public) meant that an entire family was denied justice, and a nation’s faith in its justice system diminished.

Dingo took Azaria Chamberlain, coroner finds

More recently, and still shrouded in controversy, is the case of Schappelle Corby, a young Australian woman arrested at Denpasar airport in 2004 attempting to smuggle a commercial quantity of cannabis into Bali. Corby was sentenced to a minimum of 20 years imprisonment and to this day denies all charges. Even whilst heavily medicated and on the verge of suicide, not once has her story changed. Hardened criminals have commented that for a ‘clean-skin’ (someone with no prior convictions), it would be rare to find anyone with enough strength not to implicate others if she were actually guilty.

Opponents of Corby insist she won’t name the others involved because they are family, but even hardcore underworld players have been known to implicate family members in order to escape punishment. Guilty, innocent or otherwise, questions still remain about this case, including the possible involvement of corrupt baggage handlers (both in Bali and Australia). Perhaps we will never know. In any case, somebody is lying, and if anything, not knowing the truth is the cost we all pay.

So what about the underworld? What do the hardened cops and criminals have to say about all this? Most old school crooks will readily admit that they don’t mind being set-up for a crime they did commit, but they don’t like doing time for crimes other criminals have committed. Similarly, old school detectives would argue that if they know the offender has committed multiple crimes and they can’t get him for one, then they’ll get him for another, even if that crime belongs to someone else.

“If you didn’t do this one, there are a thousand others that you did do…”

Modern detectives have a different perspective. Not only are they unable to use these old school methods, they know that locking the wrong person up for a specific crime, even if that person deserves to be in prison for a multitude of other offences for which they remain unpunished, then it means another criminal is walking around free. In other words, the real criminal is still out there. And this, for most people, is not acceptable.

Moreover, such antiquated methods of securing a conviction are not in the modern detective’s interest. Why? Firstly, because unlike common perception, most detectives and police know the system is flawed and accept it as part of the job. Breaking the rules is simply too risky and not worth losing your career over. Secondly, a lot of the time they are dealing with everyday and mundane matters, for which they really don’t care that much about. Even when it comes to murder, the most heinous of crimes, why risk it all in the name of justice?

They leave that to the anti-heroes of fiction and movies. And finally, after a series of public inquiries into police corruption, the public (and by default, juries) are not as trusting of police as they once were. Nowadays even an accusation of abuse of power can taint evidence and lead to reasonable doubt. Chain of custody, crime scene preservation and all admissible evidence must be water tight. The cost of lies in the past has therefore made today’s burden of proof even harder to establish.

But what is the cost? What price have we paid for this? If the benchmark burden of proof was founded on the 1-100 conviction ratio of acceptance, does this mean it is acceptable for 100 guilty people to go free every time 1 innocent person is convicted? If so, there must a lot of guilty people walking around out there. It’s a rhetorical question of course, and there’s no way of quantifying it with a number, but it’s worth some exploring.

In the Australian criminal milieu, there is a phrase that cops, criminals and lawyers are all familiar with: The Living Man Owns The Crime Scene.

It’s an old phrase that refers to the ease at which reasonable doubt can be established by a defence team if the only other witnesses in the case are dead. In the end it often doesn’t matter about forensic evidence at the crime scene, or even what evidence comes out of the investigation, as long as your story is reasonably plausible and you’re willing to tell it to a jury, it’s usually enough to establish doubt and therefore enough for an acquittal.

In one of my books, Pink Tide, the lead character makes the remark that a jury doesn’t have to believe their story over ours. They just have to believe their story a little bit. For most juries, any doubt is reasonable, so the burden’s on us. The burden in this instance, being that the offender intended to kill the victim but claims self defence, hoping the charge will be dropped to manslaughter.

This is a common scenario and often misunderstood by the public. How could he not be charged with murder? Because to convict a person of murder, one must establish mens rea, or a guilty mind. An intention to kill.

For manslaughter, the prosecution must only establish the intention hurt the person. Of course, there is a catch, known as the ‘reasonable person’ test. A defendant cannot, for example, stab somebody twenty times and expect a ‘reasonable person’ in a similar situation to not know the twenty stab wounds would kill the person. It is the same in the case of self defence. The use of force to defence oneself or another person must be proportionate to the threat. Theoretically, you wouldn’t get away with stabbing another person twenty times simply because they threatened to punch you. In most cases a reasonable person in a similar situation would stop after the threat had abated, probably after one, two or three stabs.

But these are cut and dry cases. Plead guilty and hope for some leniency for saving the court the cost of a trial and a contest of lies.

However, this opens up a large grey area. Stabbing somebody once, versus stabbing them twenty times are two vast extremes. In the middle is where most crimes are committed and this is where the judicial system and contest of lies goes into overdrive. One retired criminal lawyer has made a healthy pile of money on the back of the ‘shaken baby’ defence.

A typical scenario goes like this: a young, possibly drug and alcohol affected male is left to care for a baby while the mother is out. The baby cries and the male can’t take care of the baby. He tries everything, but in the end loses his temper, picks the baby up and bangs its head against something, maybe gives it a punch or two, hoping it will stop crying. And it does, permanently. The mother comes home and, unable to wake her baby, calls police and the male is charged with murder.

If he is clever he will keep his mouth shut and wait for a lawyer. If not, he’ll admit that he hit the baby. In that case, murder is on the cards. If he’s halfway smart, or just plain scared, he’ll admit that he ‘shook’ the baby really hard and it suddenly stopped crying. The police know that this is all he needs to say for manslaughter. They know full well that he hit the baby or smashed its head against something, but they don’t need the guy to admit that and they know a good lawyer will convince him not to. So the first step is to get him to admit he ‘shook’ the baby.

This is enough for police to file a charge and send him off to remand. At this point a lawyer is usually brought in and a smart lawyer will make the strong distinction between ‘hit’ and ‘shake’, knowing that when it comes to court he can paint a picture of frustration that the jury may or may not sympathise with. In any case, the lawyer knows (just like the police) that the defendant is going to plead guilty and go to prison. The question is how long and whether or not murder or manslaughter is the final charge.

Let the contest of lies begin!

If the court accepts that the defendant ‘shook’ the baby in desperation, and it caused bleeding on the brain, the sentence will be based on manslaughter, but not murder. If on the other hand he admits to hitting the baby, it changes everything. Murder is on the table. So the defendant is scripted accordingly and admits that he shook the baby in pure frustration and shows total remorse for his actions. The lie: he never hit the baby.

Everybody in the system knows this is a lie, but since the living man owns the crime scene, as long as he sticks to his story he’ll get away with manslaughter, even though science has now proved that shaking a baby can not ever actually cause those kinds of injuries. In the contest of lies, sometimes truth (and science) is irrelevant. Science is boring and jurors are often given this information after lunch, so they fall asleep. In the end it comes down to who can lie the best.

The cost?

In this instance a myriad of cases have played out like this and no doubt many offenders have received far less prison terms than they would have had they not lied in court. One former lawyer has since come clean and admitted that he paid numerous doctors and surgeons to testify at trial in order to reduce sentences for his clients.

The cost of a lie in this example is not just the child’s life, but also the lack of justice and a bad rap for medical practitioners. Hopefully this ‘defence’ is no longer part of the contest, and defendants who punch, hit, kick or otherwise physically assault babies are given appropriate sentences.

But like the case of Shapelle Corby, Azaria Chamberlain and Rubin Carter, I guess only time will tell. In my next blog I shall explore some of the costs of social policy on the public, with a particular focus on child protection. I will pose the question of when government agencies should become involved in the welfare of a child, and what are the ramifications of getting it wrong…