Harry Gleeson thus was wrongfully hanged for the murder of Moll McCarthy in 1941 and fully exonerated in 2015, after the case was investigated by the Innocence Project in Ireland. Gleeson was framed by the police, with the collusion of elected representatives, for the murder of one Moll McCarthy, by reputation a ‘lady of the night’. There followed what amounted to a show trial in which the judge and prosecution barrister concealed evidence and conducted proceedings in a wholly inappropriate manner.
On the eve of his execution Gleeson met Seán MacBride, his junior counsel, who, expecting an admission of guilt, instead was confronted with an assertion of innocence, and a plea that one day his name should be cleared. MacBride was moved, and thereafter, having served as Irish Minister for External Affairs between 1948 and 1951, campaigned against the death penalty. He was instrumental in setting up Amnesty International, for which he ultimately received the Nobel and Lenin Peace Prize.
Ireland, in my view, is no better today. Gleeson was exonerated because Innocence Project work at my and Tertius Van Eeden’s behest showed evidence from a forensic expert in Boston that he could not have been at the scene when the murder was committed and that the Police had falsified the gun register and that the judge and the prosecuting barrister had behaved disgracefully.
In Kenya, my client Mr Kimani has been on death row for 17 years. He was on a bus journey and stopped at a weigh station restaurant, arrested, brutalised and charged. There was no real evidence. Like my friend Sunny Jacobs, wrong place, wrong time.
During the ensuing trial he was provided with sub-standard representation and the judge directed a decision of guilt, violating the presumption of innocence on the papers where the requisite probative standard was not met.
In Nairobi we presented submissions to the then recently constituted Committee of Mercy in Nairobi, under the elegantly named Power of Mercy Act, 2011.
The initial hearing was in the worst high security prison in Africa. The second in government buildings which again took over three hours, was conducted in a packed room in circumstances of polite formality.
Victims’ relatives were allowed to express their distress, which had no bearing on the guilt of my client.
The Committee of Mercy asked me to draft a supplemental set of submissions notwithstanding my client’s innocence, whether he could fend for himself on the outside. This is symptomatic of a slide towards distilling human right in the direction of homo economicus.
Inspired by much of this in 2015 I wrote a paper for the Innocence Project conference on the common vocabulary of innocence which came out in a Kluwer book called Protecting the Innocent.
My concern is that a glitzy photo op of a pardon many years later distracts from improving standards at the inception of the legal process. Since I have been back in London my thoughts have winnowed down further to this summary, which those starting out at the Bar and volunteering at legal clinics may find of use.
1. Read the brief.
2. Avoid double or triple booking – we are creatures of bounded rationality.
3. Meet the client at the solicitors’ office or in prison. Develop empathy.
4. Work out if the client is fit to plead and/or in need of therapy.
5. Assess whether this is a vulnerable case involving, for example, allegations of a sexual case. In such a case look at delay. Access the ABE questions and check whether leading or suggestive questions were used. (I am sedulously against soft questions of sexual complainants and uneasy at the recent innovations in this respect.)
6. Examine whether and to what extent there is evidence of coaching or inappropriate leading questions which can lead in children and adults to falsely implanted memory syndrome.
7. False confessions. A short-term universe can create a desire to go to the football match rather than confront an incomprehensible situation. Poverty can engender low self-esteem.
8. Question motivation, access, opportunity – did someone have an axe to grind? Look at the entire relational history.
9. Is it a political prosecution? In the UK this is less significant now but more so in neo liberal countries where corruption is systematic.
10. Check racial profiling; as far as recent evidence is concerned the Lawrence Inquiry has not purged the police of same.
11. Then there is the issue of cognitive bias or group think which prosecutors, judges and juries are all capable of. The American jurist Jerome Frank put this beautifully eons ago in legal realist terms:
‘When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial court’s finding of the fact involve a multitude of elusive factors: First the trial judge in a non-jury trial or the jury in a jury trial must learn about the facts from the witnesses and witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their court room reports of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the parties to the suit, or the lawyers. Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red haired woman… or men with deep voices or high pitched voices…’ (Law and The Modern Mind)
Francis Bacon and Dante also said we are pre-disposed to believe what we want to believe. As a recipe to avoid, the Royal Society of Arts in 2015 indicated in a different context that to avoid such bias we should slow down decision making, reconsider the reasons for your decision making, question your cultural stereotypes and self-monitor or self-censor. In a reactive universe prone to short-term fixes and over-charging, perhaps these are considerations that prosecutorial authorities, and indeed defence counsel, should bear in mind.
12. DNA, fingerprints and forensics are best dealt with synoptically:
- Is the DNA test mitochondrial or low carbon? Is it up to date or historic?
- What was the quality of the sample tested?
- Was there a test?
- Is there an item that could be tested?
- Should fingerprints have been taken and if so from where?
- Commission an independent report? Never unconditionally trust a crown expert.
- Were other fingerprints and DNA found?
Counsel readers might profitably read Professor Itiel Dror and Greg Hampikian on confirmatory bias. Such papers reveal how a forensic DNA sample by a expert is accepted as a correct match when the police told the expert to confirm and when the sample was sent by the authors independently to 14 others without elaboration they would either not confirm and many found no positive match. (Dror, I.E. & Hampikian, G. (2011). Subjectivity and bias in forensic DNA mixture interpretation. Science and Justice, 51 (4), 204-208: https://www.ncbi.nlm.nih.gov/pubmed/22137054.)
13. Tie the crown strictly to all disclosure needed. Do not be ambushed. Use an abuse of process argument if necessary.
14. Work out if a Newton Hearing is required. Guilty pleas should not lead to an unconditional acceptance of the crown’s conditioning of the facts.
15. Distinguish carefully between fact, semi-fact, evidence and proof.
16. Resist attempts at bad character admission.
17. Do not look at a computer when a witness is giving evidence or pleading. Listen and write.