A better way to fix miscarriages of justice
There’s a moment in Sir Peter Jackson’s 2012 documentary, West of Memphis, where singer Eddie Vedder shakes his head, with forlorn hopelessness in his eyes.
He’s recounting a moment from the 15 years he spent campaigning for the release of three men convicted of a horrific murder they didn’t commit.
‘‘There’s just got to be a happy ending ... there’s just got to be a happy ending,’’ the Pearl Jam frontman says. They’re the words of a man whose face reveals he entirely doubts what he’s saying. They’re words of desperation. The documentary tracks the story of the West Memphis Three who spent 18 years in an American prison, one on death row.
Vedder, along with Jackson, was one of several high profile people who fought for their freedom. In the documentary he describes how the fight drained him like a never-ending endurance event. There just has to be a better way, he implores.
In the end, the West Memphis Three were freed, on the strength of DNA evidence. But the sentiment Vedder’s eyes betrayed remains valid.
Ask any innocence campaigner around the world and they’ll know that feeling exactly. A feeling that the system just won’t listen. A feeling that the scales of justice have been welded and there’s no altering the imbalance. A feeling that it is so utterly wrong an innocent person rots in jail.
Vedder’s sentiments will be well known to people in New Zealand. People like Tim McKinnel, who struggled for the release of Teina Pora, and Des Thomas, who continues to seek justice long after his brother, Arthur Allan Thomas, was cleared
Miscarriages of justice are like ghosts which haunt the system, lingering in the public consciousness.
of double murder.
Miscarriages of justice are like ghosts which haunt the system, lingering in the public consciousness. The names are so familiar, cases where there has been either a finding of innocence or where claims of innocence refuse to dissipate and the whiff of injustice lingers: Pora, Thomas, Scott Watson, David Bain, David Tamihere, Rex Haig, David Dougherty.
The reason they won’t go away is because we don’t deal with these cases well, they are never satisfactorily resolved. There is an extraordinary reliance on third parties to campaign on behalf of prisoners they believe the justice system has failed.
Not that we’re saying the system is off the rails – far from it. On the whole, it treats people fairly and justly and the people within it are doing the best they can. Nobody goes to work aiming to cause an injustice.
But it’s time we found a way of dealing with the small percentage of cases that go wrong. Failing to properly handle and prevent miscarriages of justice is letting everyone down – including those who work in the justice sector – and damaging confidence in the system itself.
Partly, it’s the failure to accept that something has gone wrong. In the Pora case, the Crown fought and fought until it was untenable to continue doing so (even fighting him overhow much compensation he is due).
Pora’s is a case where people knew for years things had gone wrong: even cops who worked on the investigation told us they knew he wasn’t the right man.
And yet, because of the unyielding belief in the outcome of a trial, nothing could be done, it seemed. It was impossible for Pora to be innocent, a senior policeman told us in an interview, because two juries found him guilty. Um, guess what? He is innocent – even the Crown accepts that now.
Part of the issue lies in the very nature of the legal process and its reliance, in most cases, on fresh evidence for an appeal to succeed. In the Pora case, the only fresh evidence accepted was his Foetal Alcohol Spectrum disorder diagnosis.
That’s a sobering thought: if neuropsychologist Dr Valerie McGinn had not seen coverage of his case and recognised that he likely suffered from the condition – and later confirmed that diagnosis, would Pora still be in prison?
In the Watson case, our story (page A10) about amateur sleuth Mike Kalaugher’s belief that the police made a fundamental error when they calculated the position of the boat where murder victims Ben Smart and Olivia Hope were dropped, probably could not be categorised as fresh evidence.
Which illustrates the problem with the system because if Kalaugher is right, it’s game over: an innocent man is in jail.
Like in other cases, there’s an elephant standing in the courtroom – but no one will deal with it.
What needs to happen?
For starters, it shouldn’t be left up to the police to reinvestigate cases, or make decisions that there’s nothing to see. That results, in cases like Pora’s, in the ludicrous situation of senior officers who originally worked on the case in the 90s being responsible decades later for assessing whether the original investigation got anything wrong. It’s unfair on the accused – and the police officers involved.
And when there are findings that a miscarriage of justice has occurred, there needs to be a release valve, a way of establishing what went wrong. It seems so blindingly obvious, doesn’t it, so that the same mistakes are not repeated.
Again, the system currently seems intransigent, often wilfully blind to glaring issues – and then, when it’s finally accepted there’s been an injustice, just shrugging its shoulders and saying, meh, sometimes things happen.
You can’t have it both ways, and if you don’t honestly look at errors in a dispassionate way, you’re never going to prevent problems in the future.
It’s almost as if, in the quest of recent decades to be tough on crime, we’ve forgotten the famous writing of 18th century jurist Sir William Blackstone: ‘‘It is better that 10 guilty persons escape than that one innocent suffer.’’
It’s time we reasserted that as being at the heart of our justice system once more.