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Our Corrupt Legal System  - Evan Whitton

Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies.

Evan Whitton has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for "courage and innovation" in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au

This is a revised Introduction to his book, freely available online:   

The text of Our Corrupt Legal System, sourced to 300+ lawyers and judges, is at a section of legal academic Dr Bob Moles’s website: netk.net.au/whittonhome.asp. A Bejing publisher has contracted to translate and publish the book in China.

 Preface   

Some definitions: 

Justice. Maat, goddess of justice in Egypt  c. 2700 BC, had a feather in her cap. It symbolised justice, truth, morality. A US  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. England  has not had a truth-seeking system for 1500 years.

Sophistry. A method of lying by false arguments etc. Sophists, described as morally bankrupt charlatans, of 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 the techniques 2500 years ago. Nothing changes. A US  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.’ 

US film critic Joel Siegel said. It’s only the 99% of lawyers who give the rest a bad name’. In fact, the bad name comes mainly from trial lawyers, some 40% of the total. The other 60% may be really nice persons who would never stoop to sophsitry. 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, the inquisitorial system devised by Pope Innocent III, codified by Napoleon, and now used in European countries, their former colonies, and Japan, South Korea  and other countries.

 

 

Inquisitorial  system

Adversary system

Seeks truth     

Yes

No

Conceals evidence

No

Yes

In charge of evidence

Judges

Lawyers

Length of civil hearings 

About a day

Months, years

Conviction rates

95%

Under 50%

Innocent in prison

Rare

1% - 5%

 

Why are the systems so different? Common lawyers don’t know. Law schools, in business for not much more than 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 deity. 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. Cross-examination is a modern ordeal; rape victims have vomited on the witness box.

William II institutionalised trickle-down extortion in the trade of authority before he was shot dead on 2 August 1100. Every public office, including that of judge, 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. Richard Posner, a US economist and judge, said lawyers and judges have always been ‘a cartel’ aiming ‘to secure a lustrous place in the financial and social status sun’.

European courts adopted an inquisitorial system after a church-state conference in Rome in November 1215, but those courts perverted justice for five centuries; judges wrongly believed that torture produces truth.

In 1219, English judges formally rejected the inquisitorial system. As the truth door shuts, the sophistry door opens, to judges as well as lawyers. London’s population in 1219 was about 25,000. Taxpayers who fund the legal system are entitled to ask legislators: why should we be robbed of justice and money because a few crooks in a small town in England decided that truth does not matter 800 years ago.

Lawyer-politicians s have been the ‘dominant influence’ in English-speaking legislatures since about 1350. They still are

The adversary system dates from 1460, when trial lawyers began to take over civil evidence. Judges could have stopped them but did not. Cartel collusion is an inference. Controlling evidence enables lawyers to spin out the pre-trial and trial process and make enough money to comfortably retire, if they choose, to the social status of untrained, uninformed and passive judge.

Dickens: ‘The one great principle of the English law is to make business for itself’, i.e. trial lawyers. Judge Rothwax: ‘ … we have a system that is run entirely by lawyers for their own interests and for their own benefit.’ Yale law professor Fred Rodell: ‘The legal trade is nothing but a high class racket.’  

Judges of course do the decent thing: they try to stay awake – Lord Thankerton knitted – but do they suddenly give up sophistry? Alan Dershowitz, a US   lawyer, said ‘lying, distortion, and other forms of intellectual dishonesty are endemic among judges’. A lie is the basis for the rule which saves criminals from giving evidence and so gets 25% off. A lie – absolutely does not mean absolutely – has made a lot of money for tax lawyers, and has cost Australian pay-as-you-earn taxpayers billions.

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

Members of a cartel, e.g. the oil cartel and the Australian cardboard box cartel, collude to increase prices, typically by 15%-25%. From about 1650, Chancery judges refused to finalise will cases for decades. Why? Lawyers were paid from the deceased estates. Jennens v Jennens, the model for Dickens’ Jarndyce v Jarndyce, began in 1798. It ended in 1915, when lawyers and judges had ‘devoured’ the remnants of an estate worth some £500 million today.          

Trial lawyers did not defend accused until the rise of blue collar organised crime in the 18th century began to made it worthwhile. The low conviction rate is due to the invention since 1790 of 20 anti-truth devices, including five rules which conceal evidence from jurors. Lawyers say it makes trials fair, but fairness means truth. No other system hides evidence. 

Professor Dershowitz said: ‘The American criminal justice system is corrupt to its core … The corruption lies … in its processes …’ He said all defence lawyers, prosecutors and judges know ‘almost all’ (say 95%) 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% of accused. Honest cops doggedly investigating crime are plainly of more use to society than judges and trial lawyers.    

Napoleon had time to codify the inquisitorial 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. 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 favour 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 inquisitorial 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%) when an inquiry recommended changing to a truth-seeking criminal system.  

Lawyers are only 0.2% of the population, and their utterance may be mere sophistry, but their access to the media is as disproportionate as their numbers in legislatures. However, the parrot-house can be safely ignored. As Justice Fox noted, the public know that justice means truth; the vast majority of voters will support change to a What happened? system.  

‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)


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