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Exemplary Kiwiblog on justice for Sophie Elliott

  • June 27th, 2009

David Farrar’s Thursday post on Clayton Weatherston’s trial for killing Sophie Elliott had triggered over 130 comments when I last looked.

The post and string are to me the epitome of good blogging. I learned something I did not know from David’s post. The comments are diverse, vigorous, and frequently informative. Few of the trolls emerge. F E Smith in particular admirably puts the case for his reviled branch of my profession, defence counsel.

And it is a debate among strangers that is simply not available in MSM. It may be as close as we can get to the vision of those who died to secure free speech, an  ‘agora’ or marketplace of ideas where understanding emerges from unconstrained contention.

Of course many of the commentators are anxious about how far their discussion can go before attracting a jealous court’s punishment for contempt. Without knowing where the line is drawn, or quite why, they know that freedom of speech stops at the court door. The court anointed will decide what can be said about matters reserved to them.
 
F E Smith challenges some of his critics to say how they would remedy what is wrong with the criminal justice system. He is not necessarily defending it other than implicitly with the argument that it may be the best we can do. But it is fair to ask more of critics than complaint.
 
Here are a few suggestions:
 
a) Restore genuine committment to the whole truth and nothing but the truth. When judges exclude evidence to punish Police for breaking the rules in the way they gather it, or because they do not trust juries with it they are showing what they really think of that witness oath. It becomes an Orwellian line.
 
b) Remember who the real clients are – the victims entitled to justice since the state removed their right to personal vengeance, and the next victims, entitled to expect the law to deter and to incapacitate evil people. So – do what commercial lawyers, and doctors, and other service professionals do – put the clients first. If that means missing morning tea, or carrying on till midnight with a hearing, or sorting out the legal arguments in chambers before empanelling the jury and getting everyone else to court, then do it.
 
c) Show some shame for where you’ve taken our justice,  in my working lifetime from one of the lowest violent crime rate countries to one of the highest in the western world. From typical defended trials lasting a day or two and invariably being over from arrest to sentencing within 6 months, to median times from committal (often up to 6 months after arrest) to trial being as long as a year, with months further for sentencing.
 
d) Ask yourselves how you can be complicit in a case where the killer was caught literally red-handed, where the only question is his excuse, and that excuse is now being heard by way of attack on the dead girls character after he’s been given a year and a half of comfortable protection in which to rehearse his memories, and refine his venom. It should all have been over within a month.
 
e) Ask why you are allowing trials to spend weeks on conceptual distinctions for which the original purpose has vanished with the death penalty. The arcane differences between mad or bad should have gone with it. In both cases the killer should know that he will be locked up for the rest of his life. Why worry about whether he lost control of himself. The law deals simply and vigourously with other excuses that if permitted, would undermine the law. For example though it is genuine, not knowing the law is simply not a relevant excuse, lest it become the excuse of every offender.
 
d) Cut spurious appeals – against sentence, and generally. They’re costless one way bets. Change that  by adding to the sentences of those where it is an expensive try-on.
 
e) Punish lack of remorse in defence tactics, and not guilty pleas. If Weatherston is convicted the judge should send a message to every potential exploiter of the system’s proper concern to permit people to defend their actions, that a false defence is nevertheless costly. It should add at least 10 years to his non-parole period.
 
f) End the trial as a game and re-focus the rules on getting to the truth, so out with the so-called right to silence. A judge and jury should place whatever weight is merited on the failure of the person best placed to know what actually happened, to expose himself to examination.
 
g) End the pantomime care about what juries can and can’t hear. Recognise that the internet has finished the idea of jury minds as empty buckets to be filled from a hose controlled by the judge. So stop transferring trials.

h) Restore truth in sentencing. When judges sentence it is the non-parole period that is the real sentence. The rest is just potential punishment for not playing the game in prison.

I ask that you make the law mean what it says.

Comments

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  • Jim Maclean
  • June 30th, 2009
  • 9:28 am

Once again Stephen puts what I strongly feel eloquently and well. My admiration for his elegant prose contrasts with my frustration and dissatisfaction with a justice system that seems more concerned with its own pomposity than either the victim or the truth of the matter at hand.
Damnit we have a right to protection from those who would do us harm. There is a huge cost to giving those who would toy with the system at our expense to their advantage, always knowing that the worst that can happen is that they would be only marginally worse off whereas they may yet succeed in conning a gullable jury yet again and escape scot free. We can, and must, do better!

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  • Lenny
  • June 30th, 2009
  • 12:24 pm

Stephen Franks lost any credibility on Justice when he bizarrely argued against Justice for the five members of the Bain family so brutally murdered in 1994. Stephen you can censor me, but you can’t censor the truth.

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  • peterquixote
  • June 30th, 2009
  • 10:26 pm

Stephen says:
” e) Punish lack of remorse in defence tactics, and not guilty pleas. If Weatherston is convicted the judge should send a message to every potential exploiter of the systemís proper concern to permit people to defend their actions, that a false defence is nevertheless costly. It should add at least 10 years to his non-parole period.”

This is absurd Stephen.
A person who is crazy enough to do murder like this can not be expected to have a quality of remorse. Why not go round looking if he has any parking tickets?

Stephen answers himself previously

“Ask why you are allowing trials to spend weeks on conceptual distinctions for which the original purpose has vanished with the death penalty. The arcane differences between mad or bad should have gone with it. In both cases the killer should know that he will be locked up for the rest of his life. Why worry about whether he lost control of himself”

Thats right dude. We have about 4 billion too many people on earth.
Sentence in this case ofobvious murderer death, no discussion required.

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  • Pete
  • July 9th, 2009
  • 3:09 pm

To your list Stephen I would add: consider making senior members of the judiciary subject to regular election rather than appointment. This would have the effect of giving greater weight (at least in the judges minds) to the weight of public opinion, and may avoid the perhaps arrogant view of some judges that juries are not competent to hear all the evidence, or that it’s reasonable to transfer cases out of the communities within which the crimes have been committed, etc. Junior unelected judges could aspire to election to senior office, at which point their histories of judgments and sentencing would become a subject for public reflection and debate at the time of election. The result? No more ivory towers. Potentially a more responsive and victim oriented judiciary, and attention to a greater sense of justice being done and being seen to be done.

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  • David Cohen
  • July 9th, 2009
  • 4:03 pm

Nice piece, Stephen.

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  • Thomas Crown
  • July 20th, 2009
  • 1:24 pm

Thank-you Stephen, probably one of the better blogs I have read on this case. I have a very personal interest in this situation and am angry each every day, a feel a blackness in my life that will never by mended, and am concerned for my own family and children that no matter what the verdict of this trial, this ‘man’ will eventually be let loose back into our society, and no justice we hand out in this country will ever be sufficient.

I do not believe that rehabilitation is a possibility in cases like this (if there has ever been such a disgusting example before) and although not a religious person, I believe ‘An eye for an eye’. To take the purely scientific view… if we want to improve the gene pool then Weatherston should be removed from it; however this action would be too kind to him.

My heart is each and every day with the family (My love L, G, N, and C); I would ask that if anyone of influence reading this can do anything to address the gaping holes and imbalances in our legal system please do, cases like this should never be endured to the ridiculous and painful extent that this one has. And to all, use you influence as a voter and citizen to insist that change happens.

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