Last week was a tough one and it left me quite dazed and exhausted by the weekend; a weekend which co-incided with the visit of herself's crumblies to our bijoux, minmalist pad. I also spent the weekend pickled in claret and chianti which left me disinclined to blog. There has also been the somewhat ironic problem of constant broadband internet access through work, college and my domestic connection and as there is a neverending supply of lovely text to devour online, I seem never to be away from the computer, which is not good. The veins and nerves in my right eye have begun to flutter and pulse lately from what I suspect is overexposure to computer screens and a failure to get a reasonable level of kip. But last night I fell asleep amid the cushions and goose down pillows of our low-backed japanese chaise at about 11.30 p.m. and, having been relocated by my kindly girlfriend, gave myself unto the arms of Morpheus until 11 a.m. this morning. Consequently, the Midnight Court is rearing to go.
It is time to get down to serious law blogging and as such Midnight Courtiers can expect forthcoming posts on Mooting (the moot court is a mock appeal which pits student counsel representing appellant and respondent clients against each other on a point or two of law), litigation on virtual property held in online fantasy (RPG) worlds, barriers to entry to practice at the Irish Bar and, if we are feeling especially ambitious, the need for a Second Republic, French style. Today, I'll be pointing courtiers in the dirction of the American "blawg" May it Please the Court on which are posed occasional legal teasers based in real life US jurisprudence. Today's poser is quite a toughie but will be of compelling interest to anyone who's concerned with balancing the rights of victims and those accused of crimes. Let us not forget that the criminal law is not simply a matter for discussion by law students, academics and practitioners but every member of society. In fact, Eamon Leahy SC implies the emphasis is quite the other way around in his article Crime and Punishment; Rehabilitation or Retribution:
Donning the gown of advocacy does not remove the responsibility of citizenship. Lawyers, no less than any other group in society, have a duty to constantly question the criminal law. We have a duty to question its substance, its intentions, its operation and its consequences.
What's interesting about May it Please the Court is that the problems posed there are ones it is likely the Irish law may soon have to face itself. Not only do we share a common law legal system with the US but, not least on foot of our shared language, our society is as heavily influenced by it as by Britain's. On 26 November last, MIPTC posed the question of whether or not a stabbing incident should be re-enacted in court, which raises all sorts of questions about prejudice, the prosecution's approach to and understanding of its job and the influence of sensationalist journalism on the legal process. Again, qua Leahy:
The criminal law reflects a facet of civil morality. To have any rational justification it must remain contemporaneous.
It's worth noting at this point that a number of unrepealed post-Norman statutes remain on the books in Ireland and Midnight Courtiers might find it amusing to read through this list of them and supply the comments and opinions about these laws which are encouraged by the Office of the Attorney General here. As the Irish Examiner puts it in its recent article on the review and repeal of antediluvian statutes:
THE way to prosecute a thief? Tie the suspect to a millstone, deep him or her in water, and if they sink, they’re guilty. And no, this is not Taliban-style justice, but Irish law.
One might be forgiven for thinking that Road Traffic enforcement which appears to concentrate on motorways rather than on the more dangerous secondary routes is based on the statute from the year 1342; (16 Edw. 3) c. 3 Officers Ride in Force, with a View to Fees. Sadly, however, the fate of William Nugent in 1449 who on foot of (27 Hen. 6) c. 17 was fined 20 marks for failing to build a castle at Dardistown in Meath, and had his letters patents (i.e. planning permission) annulled has not been met among those contemporary developers who have been facilitated to hold banks of land with putative PP in spite of the provisions of the Planning and Development Acts.
On the other hand, I think it is possible to be too contemporary, especially where the result would be to reflect the populist mores which seem sadly to be in the ascendent of late. What is of concern however is a point echoed by Mr. Leahy who says:
Few in society could give a comprehensive list of the activities proscribed by the criminal law. Fewer still could state the potential sanctions adhering to those proscribed activities.
But which was earlier stated eloquently by the then DPP, Eamonn Barnes, at a meeting of the Incorporated Law Society in Killarney in 1989. Mr. Barnes addressed himself not least to the regrettable, continued influence on the Statute Book of Victorian draftsmen and said:
[W]hile with experience a criminal lawyer can find his way with resasonable confidence through the jungle, the criminal law remains an impenetrable mystery to the avearge citizen. And this should not be so, particularly when one of the fundamental propositions on which we operate is that ignorantia juris neminem excusat (ignorance of the law is not a defence).
The law, especially the criminal law, should be clear and accessible to all if all are liable for breaches of it. The scourge of legislative amendments, of amendments of amendments, or substitutions, insertions and deletions and of cross-referenced definitions has made the task of ascertaining the current status of some offence and penalty sections a nightmare.
The Midnight Court is inclined to agree and, furthermore, to identify the problem across the Statute Book and in every area of the law. There has been little momentum for change in the 16 years since Mr. Barnes made his statement and the legislative process remains unsatisfactory and the law inefficient. As such, the Midnight Court will aspire to be informed by the sentiments he expressed. As society and the economy become increasingly complex, diverse and exponentially larger than they have been previously, the legal and legislative communities will be forced to respond and address matters with which they have thus far appeared reluctant to engage.
It is difficult to see, for example, an expanded corporate and business sector continuing to put up with a courts system so inefficient that it permits the briefing of so few barristers. Of which more anon. Suffice it to say, the number of practitioners in the Law Library has only recently exceeded the number who had a living from it prior to the famine and in the time of well-got advocates like Daniel O'Connell, which tells you as much as you need to know about the state of the economy over the last 150 years.
Barely a wet month in the game, I responded to MIPTC on 26th November (the court having allowed the stabbing reenactment the question was whether "the facts [number of wounds inflicted] have that kind of an influence on the ruling):
It seems there are plenty of facts on which the prosecution can happily rely to convince a jury without the need to resort to penny-dreadful theatrics. This kind of prosecution could become a real problem in the States and elsewhere - populism has spread like wildfire in the west - if the Peterson trial as captured by Jean-Xavier de Lestrade in The Staircase is any indication. While Peterson looked pretty guilty, I think a lot of lawyers would agree he should not have been convicted on relevant facts, evidence and points of law.
The methods of the prosecution suggested a regard for personal vanity rather than for the law. Surely, it is better to protect the procedures of trials in due course of law - and by extension any innocent person who may undergo them - than to secure a conviction at any cost. Furthermore, allowing into procedings evidence like Peterson's gay liaisons and a death from the past, especially one which had not resulted in indictment, and the Wright courtroom re-enactment suggests a prejudgement of guilt. The courtroom demonstration has only been allowed to go ahead due to the extreme and horrible circumstances of Mr. Wright's death. That suggests the facts have already been decided, which cannot but influence the jury who are, of course, there to decide those facts. A court-permitted play of Mrs Wright killing her husband will doubtless suggest to the jury that the fact of murder is not really at issue.
It seems the prosecution are playing to populist sentiment and outrage at a woman's killing of her husband. I don't see a place for moralising in their job myself. Judges aren't immune to popular sentiment either - we are definitely in a period in which politicians seem to do well with ideas which suggests that criminal justice procedures protect evildoers when they are actually strict because the sanctions imposed on conviction are so awesome. Of course, people nowadays don't seem to think that terms of imprisonment constitute an especially awful punishment.
When the rules are bent or changed for what one might consider a justifiable end, it is only a matter of time before an unscrupulous or corrupt person in a position to do so uses the new dispensation for personal gain and wilful abuse. Then innocent people get screwed.
On a first-aid course I attended recently, the instructor explained that multiple stab wounds suggestive of a crazed frenzy on the part of the attacker are actually the result of the panic induced when the victim fails to go down on the first blow. You can fight on having been stabbed quite a few times, which is obviously not as good an idea as playing dead, as in "ugh, knife-wielding attacker, you got me, your work here is done...I fall, unthreateningly, to the ground". I think that's relevant to the Wright facts.
Today, MIPTC has a tougher problem but I encourage Midnight Courtiers to tackle it here. As we saw recently in the Wayne Donoghue trial, the place of the victim in the criminal process is extremely pertinent in Ireland at the moment. There is also the issue of the treatment of women as both victims and witnesses in cases of rape and sexual assault, the pendulum on which seems to swing backwards and forwards all the time. In brief, the facts are as follows:
A sixteen-year old, now 20, was [allegedly] gang-raped at a drunken party in Chicago in 2002. She was drunk, too, and apparently unaware of the sexual activity. The gang rape was videotaped, and at the trial of the defendants the tape was entered into evidence this past week. Not surprisingly, the woman has not watched the tape, and she doesn't want to watch it.
The defence attorneys submitted that they wish to cross-examine her and that this would require the woman to first watch the video tape. They wanted the court to force her to do so. The law on this is unclear as the matter has never arisen before, but given the current state of a certain segment of male society, the frat mentality and the backlash against feminism it may well arise in future over and over again.
At first, the trial judge agreed with the defence and when the woman refused to comply with his order that she watch the tape, threatened to hold her in what we would call contempt in facie curiae and put her in jail. However, he has now changed his mind and so the question must stand to be considered again in the inevitable appeal if the defendants are convicted. Shamus Twomey (no doubt one of our own, Midnight Courtiers) quotes in an article for the Chicago Sun Times John Corkery (another Mick?) acting Dean of John Marshall Law School who says the question will be:
Were they significantly impaired in their ability to cross-examine and impeach the [woman] . . . or to bring out some fact that they couldn't otherwise get by the judge's ruling not to force the woman not to watch the tape?
The article is well worth looking at if you're interested in formulating a response. And don't forget Article 38.1 of the '37 Constitution which states:
No person shall be tried on any criminal charge save in due course of law.
A sentence which contains multitudes, as you can see from the instant case. The MIPTC poser:
You might be tempted to focus on the traumatic effect of watching the tape instead and to the exclusion of the Constitutional rights to confront and cross-examine your accuser, but don't be tempted, and don't react with a purely one-sided viewpoint. You're in the position of an appellate judge, and you have to balance these two issues. Which one do you give more weight? Who wins? Can you fashion a remedy where there are no losers?
The Midnight Court is puzzling over its answer. What say you?