Two arrests - Justice for Stephen Lawrence?

[Mojo]

I want Stephen Lawrence to have justice... but I am disquieted by our willingness to discard ages old civil liberties because it would be convenient in this particular instance. What is the saying "hard cases make bad law"?

To quote Rolfe:

Hard cases, it has frequently been observed, are apt to introduce bad law.

 

[commandlinegamer]

I'm not saying that's what's happening here, but the potential is inherent in the system as it now stands.

But surely the potential for fabricated evidence was already inherent, regardless of double-jeopardy.

How many bites at the cherry does the state get?

If no-one has been found guilty of such a serious offence, surely the state is duty bound to at least continue investigating (albeit perhaps using reduced resources, if a significant amount time has passed) particularly if new techniques for analysing evidence become available, and especially if the previous attempt to get to the truth was insufficiently rigorous.

 

[Rolfe]

It's a good argument, if that's what actually happens. However, the reason the law was introduced in the Middle Ages was to prevent vindictive pursuit of a citizen who had been found not guilty of a crime. It seems to me that danger still exists.

It's a commonplace observation that investigating authorities frequently become very enamoured of their own theories, and unable to see the flaws in them. It has been described as being "married to the vein", from the metaphor of the gold prospectors who worked year after year on the same dud site, seeing every indication that there was no gold there as evidence that there was.

When they got one crack at a defendant, that was it. Put up your best case, and if you lose, end of story. This had two effects. It encouraged the production of the best case, and it drew a line under the affair if it wasn't good enough. Now, there is the potential for prosecutors to go with a shaky case, because they can always have another go if they find something else. Not good.

But as I said, it's the "married to the vein" part that concerns me. We like to think this will only be used for clear-cut new discoveries, such as an old semen stain revealing the DNA of the previously acquitted rapist. But that's not what's happening. We're seeing prosecutors keen to have another go at defendants they have always been convinced were guilty, and specifically burrowing to find some justification for that. I don't like it. We've seen in the Amanda Knox investigation how suspect-centred examination of evidence is liable to produce just the result the prosecutors were looking for - and I don't believe Italy is alone in this. We've had the scandal of RARDE and the Birmingham Six, after all.

I don't trust these guys. And after looking at a few specific cases (Lockerbie, the Marion Ross murder and others), I trust them even less. I can easily see the scenario of prosecutors utterly determined that their flawed theory is correct, and digging and digging until someone gives them the fingerprint ID or the low-template DNA result they want. Frank Mulholland is giving a live demonstration of this virtually as we speak.

I don't like the idea of a guilty person going free because the vital evidence wasn't available at the time, but I think I'd rather that than the alternative.

Rolfe.

 

[Jaggy Bunnet]

I wasn't altogether convinced the prosecution had met the "beyond reasonable doubt" standard from the reporting I followed, though I may have been paying too much attention to the defence submissions. It will be interesting to see what the verdict is.

It seems hard to put the series of errors in the investigation down to simple errors.

Mislabelling of evidence, stating tests that had been down were not done, the storage issues, the deliberate alteration of the records, unsealed evidence bags.

Given that, they surely will struggle to get to beyond reasonable doubt.

 

[Rolfe]

Also that they had to contend that one accused's mother had been mistaken about the time, even to allow a small window of opportunity for him to be involved in the crime. I think. I haven't been following it in enough detail to be categorical on this, but I certainly didn't get the impression there was a slam-dunk case for guilt.

Rolfe.

 

[Duffy Moon]

Guilty.

 

[Mojo]

http://www.bbc.co.uk/news/uk-16347953

 

[Skepticemea]

Unsafe imo. Guilty as hell but I doubt it'll stand up to an appeal.

 

[Darat]

Unsafe imo. Guilty as hell but I doubt it'll stand up to an appeal.

It does seem a tad flimsy however have to remember that the media reports only cover a fraction of what will have been seen and heard by the jury. Plus the tendency for the likes of the BBC to apply "balance" when reporting court cases, this can lead to there being a perception that both the prosecution and defence cases were fairly "even" when that might not be the case.

On what grounds do you think it will be appealed?

 

[Undesired Walrus]

Good healing day for London.

 

[Undesired Walrus]

We've seen in the Amanda Knox investigation how suspect-centred examination of evidence is liable to produce just the result the prosecutors were looking for - and I don't believe Italy is alone in this. We've had the scandal of RARDE and the Birmingham Six, after all.

Amanda Knox serves as a reason why an acquitted murder suspect can face a second trial. If someone who was previously found guilty can be found innocent based on new evidence (or more in depth analysis of), why can't someone acquitted be found guilty based on new evidence?

 

[Rolfe]

Because symmetry in such matters is not necessarily desirable. While wrongful convictions should always be subject to review, it is not necessarily the mark of a civilised society to allow the justice system to pursue its favoured suspects for all eternity.

The dangers of the innocent being perpetually hounded, either through malice or because of a sincere but mistaken conviction that they are guilty, have always been held to be too great, and as far as I can see nothing has changed in that department.

Rolfe.

 

[LondonJohn]

Because symmetry in such matters is not necessarily desirable. While wrongful convictions should always be subject to review, it is not necessarily the mark of a civilised society to allow the justice system to pursue its favoured suspects for all eternity.

The dangers of the innocent being perpetually hounded, either through malice or because of a sincere but mistaken conviction that they are guilty, have always been held to be too great, and as far as I can see nothing has changed in that department.

Rolfe.

I agree in principle with what you've written here. However, one of the main drivers for a modification (note: not a total abandonment) of the double jeopardy rule is the advances in forensic science - most notably in DNA typing - that can mean that probative evidence does not first become available until many years after the original prosecution.

This appears to have been exactly the case in this particular trial and conviction. When the original police investigation and abortive criminal trials took place in the mid-1990s, DNA typing was still in its infancy, and the evidence that could be gleaned from DNA (particularly regarding blood on the suspects' clothing) was not strong enough to be of real probative value. Of course, many other mistakes - some through incompetence, others undoubtedly due to underlying currents of racism within the Met - also contributed to the collapses of the original cases, and to either directed acquittals or dropping of charges.

The "cold case review" of the evidence in this case was conducted in 2009 and 2010, by which time great advances had taken place in the science of DNA typing. By this time, therefore, forensic scientists (from a private laboratory, incidentally, rather than police labs or the now-defunct FSS) could determine with extremely high probability that certain soaked-in blood specks on two of the suspects' clothes were a match to the victim, Stephen Lawrence.

In these circumstances, I think it's appropriate that a new prosecution should take place, provided that it's still in the public interest (manifestly the case in this instance) and that there is a good chance of conviction (also the case in this instance, given the potential impact of the now-strong DNA evidence on the jury). Again, it's worth reiterating that double jeopardy rules remain in force, except for in some very specific circumstances which include the new availability of very significant evidence of guilt, or certain elements of impropriety from the defendant(s) in a trial that ended in acquittal. It's wrong to think that the state now has a carte blanche to keep bringing criminal prosecutions against the same person(s) on the same charge(s).

 

[LondonJohn]

Unsafe imo. Guilty as hell but I doubt it'll stand up to an appeal.

I disagree. Short of any evidence of the police planting Stephen Lawrence's wet blood* onto the suspects' clothing - which would be highly ironic given the previous findings of institutionalised racism within the Met Police by the Macpherson inquiry - these convictions appear to be sound and safe.

There's no other explanation for the presence of Lawrence's blood on the two men's clothing, especially as their story was that they had never met Lawrence and were nowhere near the bus stop at the time of the murder. The blood must have been transferred to their clothing either because they themselves were involved in the murder, or (far less likely) if they had come into physical contact with someone who had Lawrence's blood on their hands/clothes shortly after the murder took place. And given that (IIRC) both suspects claimed they had spent the entire night in question having a quiet night in at home without meeting friends etc, the jury could reasonably infer that the blood on the clothing was strongly indicative of guilt. In my view, this blood DNA evidence was sufficient to convict in and of itself, when set beside the suspects' stories.


* It would have to be wet blood - as opposed to dried flakes of blood - since the blood had soaked into the fibres of the clothing. The police would therefore have to have obtained a vial of Lawrence's blood (from the crime scene or the autopsy.....?) and transferred some of it to the two men's clothing with a swab. And all this would almost certainly have had to have happened within weeks of the murder (there's no evidence of any storage of Lawrence's blood in liquid form).

 

[ddt]

Amanda Knox serves as a reason why an acquitted murder suspect can face a second trial. If someone who was previously found guilty can be found innocent based on new evidence (or more in depth analysis of), why can't someone acquitted be found guilty based on new evidence?

But in the Amanda Knox case, there was not a "second trial": there was an appeal. The fact that an appeal in Italy means that matters of fact are discussed and new evidence may be introduced are immaterial. Double jeopardy (aka as "ne bis in idem") is about that the State may not initiate new proceedings when a verdict is final. And I agree with Rolfe that it's dangerous to introduce double jeopardy.

Reading about this case, I note there's another fundamental legal principle that is violated here. This court case follows from ex post facto law. The two convicts were first tried in 1994, when double jeopardy still applied. The injunction on double jeopardy was only lifted in 2003, and then applied retroactively.

 

[Rolfe]

I agree in principle with what you've written here. However, one of the main drivers for a modification (note: not a total abandonment) of the double jeopardy rule is the advances in forensic science - most notably in DNA typing - that can mean that probative evidence does not first become available until many years after the original prosecution.

This appears to have been exactly the case in this particular trial and conviction. [....]

Yes. There will always be specific examples of cases where this change in the law seems to be a good idea. But as I said, hard cases make bad law. This change necessitates the removal of a huge safeguard for the citizen against oppressive behaviour by the state, and it seems intended to be a permanent removal.

The introduction of DNA technology has certainly raised the possibility of acquiring good-quality new evidence from historical cases, over a fairly limited time window. It's understandable that people get agitated about this, and want that evidence used. However, is that really the right thing to do, considering the larger picture?

My first, and lesser concern, is the effect this may have on the thoroughness of case preparation in the future. Let's just try them anyway, on the evidence we have. If it's not sufficient, we can always have another go. Not the sort of criminal justice system I want.

My main concern, however, is the matter I have raised before about the continuing vindictive pursuit of an original suspect, over decades. This is exactly what the law was originally designed to prevent, and I see no evidence that this is less likely to happen now than in the 12th century.

We like to imagine the scenario is one of open-mindedness. A cold case review is initiated, and all the evidence looked at afresh. There is an opportunity to carry out testing not available 15 years ago, and this is done in a spirit of complete open-mindedness. Good gracious, who would have thought it, this evidence incriminates the guy who was acquitted 15 years ago!

In your dreams.

Law enforcement agencies are already talking about re-opening old inquiries, not in a spirit of open-mindedness, but with the specific and explicit intention of finding new evidence against someone they're still miffed was acquitted in the original trial. They're doing it in at least one case where there was no evidence at all against the accused in the original trial, and no rational reason to think any might emerge. It's not about re-examining the case with an open mind, perish the thought, it's about having our original flawed investigation validated.

It's in this situation, the suspect-centred inquiry, that false evidence is especially likely to emerge against the person the police want to convict. I really, really don't think the benefits of being able to get justice in a few historical cases outweigh the serious threats to the rights of citizens inherent in this change in legislation.

Rolfe.

 

[Rolfe]

Not wanting a dreail, but as an aside this is what I'm talking about.

Fhimah retrial speculation on abolition of double jeopardy rule

The Lord Advocate will not "get the answers these families deserve" unless he exhibits willingness to pursue the copious evidence that exonerates Abdelbaset Megrahi. There is no indication whatsoever that he is prepared to do so. The Crown Office stance is that if it doesn't point towards Libya and Megrahi, then it just isn't evidence. It is in adopting this blinkered approach that Mr Mulholland is failing in his duty.

This is a particularly political case of course, but I certainly don't feel confident that the same problems aren't extremely likely in any case. The investigating authorities still believe in their original case, and are blind to the flaws that led to the acquittal. They don't want to re-examine the case with an open mind, they want another chance to be proved right.

Rolfe.

 

[LondonJohn]

Yes. There will always be specific examples of cases where this change in the law seems to be a good idea. But as I said, hard cases make bad law. This change necessitates the removal of a huge safeguard for the citizen against oppressive behaviour by the state, and it seems intended to be a permanent removal.

The introduction of DNA technology has certainly raised the possibility of acquiring good-quality new evidence from historical cases, over a fairly limited time window. It's understandable that people get agitated about this, and want that evidence used. However, is that really the right thing to do, considering the larger picture?

My first, and lesser concern, is the effect this may have on the thoroughness of case preparation in the future. Let's just try them anyway, on the evidence we have. If it's not sufficient, we can always have another go. Not the sort of criminal justice system I want.

My main concern, however, is the matter I have raised before about the continuing vindictive pursuit of an original suspect, over decades. This is exactly what the law was originally designed to prevent, and I see no evidence that this is less likely to happen now than in the 12th century.

We like to imagine the scenario is one of open-mindedness. A cold case review is initiated, and all the evidence looked at afresh. There is an opportunity to carry out testing not available 15 years ago, and this is done in a siprit of complete open-mindedness. Good gracious, who would have thought it, this evidence incriminates the guy who was acquitted 15 years ago!

In your dreams.

Law enforcement agencies are already talking about re-opening old inquiries, not in a spirit of open-mindedness, but with the specific and explicit intention of finding new evidence against someone they're still miffed was acquitted in the original trial. They're doing it in at least one case where there was no evidence at all against the accused in the original trial, and no rational reason to think any might emerge. It's not about re-examining the case with an open mind, perish the thought, it's about having our original flawed investigation validated.

It's in this situation, the suspect-centred inquiry, that false evidence is especially likely to emerge against the person the police want to convict. I really, really don't think the benefits of being able to get justice in a few historical cases outweigh the serious threats to the rights of citizens inherent in this change in legislation.

Rolfe.

Again, I agree in principle. But in my opinion, if there are sufficient checks and balances in the system, it should be impossible for anyone to pursue vindictive hunts against persons already acquitted.

In the Lawrence case, for example, the case had to go before a panel of Appeal Court judges for a ruling on whether a new trial would be allowed. The judges looked at the new evidence available, and concluded that it was in the interests of justice - and still fair to the accused - to evaluate this new evidence in a court of law and to use it to re-evaluate the guilt or non-guilt of the accused.

Also bear in mind that (IIRC) police found new fibre evidence in 2006/2007 linking both of the now-convicted men to the murder, but - presumably in collaboration with the CPS - they didn't deem that evidence sufficiently strong to warrant an application for a new trial. It was only when the additional new DNA evidence was uncovered that the police and CPS felt it appropriate to ask the Court of Appeal to consider whether a new trial would be appropriate and fair. The Court of Appeal decided in the affirmative.

 

[Rolfe]

I hope you're right. Mulholland's current pronouncements give me no cause for optimism though.

Rolfe.

 

[LondonJohn]

Not wanting a dreail, but as an aside this is what I'm talking about.

Fhimah retrial speculation on abolition of double jeopardy rule




This is a particularly political case of course, but I certainly don't feel confident that the same problems aren't extremely likely in any case. The investigating authorities still believe in their original case, and are blind to the flaws that led to the acquittal. They don't want to re-examine the case with an open mind, they want another chance to be proved right.

Rolfe.

But the fundamentally-important point is that any retrial of Fhimah would be based on essentially the same evidence as was presented in the original trial. But let's deal with a hypothetical: imagine if new advances in DNA typing were able to show that Fhimah's (or al-Megrahi's) DNA was on the bomb or the suitcase containing the bomb, and that there was very little chance that this DNA could have arrived there via contamination. In my opinion, this would certainly warrant a retrial of Fhimah, owing to significant new evidence.

Under current legislation (I am assuming here that Scottish law is not dissimilar to England/Wales law in this respect), there's simply no way that a new trial of Fhimah would be allowed as things stand right now. It doesn't matter how vindictive or blinkered the Scottish police, the FBI, or any prosecuting authorities might be towards Libyan involvement in the bombing: the very limited scope of modification of the double jeopardy rule would ensure that Fhimah would never be brought again before a criminal court in relation to this crime until and unless very significant evidence were to emerge.

(I assume that you're not suggesting that Scottish police would go so far as to consider planting DNA evidence in order to fabricate "new" evidence for a retrial......)

(And BTW, I agree with you that Libya almost certainly had nothing directly to do with the bombing, and that it most likely was carried out by a branch of the PFLP with Syrian/Iranian backing. And whatever the truth about the real culprits, I also believe that there was never anywhere near enough evidence to convict either al-Megrahi or Fhimah of the crime.)