For me, by far the worst aspect of the recent re-trial of the Stephen Lawrence murder case has been the fact that it demonstrates the dangers of the decision, by the former Labour government in the UK, to end the old double jeopardy rule. Some of the perpetrators of the crime may now be behind bars, but the wider issues worry me.
The writer Brendan O’Neill, a Marxist who writes at at the online journal Spiked, sees this in class terms:
“It is clear from the orgy of post-conviction self-congratulation amongst the chattering classes (Dacre says yesterday was ‘a glorious day for British newspapers’) that the trial of Norris and Dobson was a political trial. It was a showtrial, or at least a showy trial, which was relentlessly used to advertise and entrench the morality of the new political elites. Just because Norris and Dobson are lowlifes, whom no one will much miss when they are banged up, doesn’t mean we should give the nod to this bending of the justice system to the whims of the cultural elite.”
And another:
“It is fitting that the Lawrence case should end with a political trial, because this was the most cynically exploited and politicised murder in living memory. Lawrence was not the first young black man to have been murdered by racists, nor was he the first black murder victim to have been failed by a seriously botched police investigation. But he was the first black murder victim whose tragic demise was cynically milked by the cultural elite and used as the lynchpin of a moral crusade against Old Britain and its foul, backward inhabitants. In a triple whammy of murder-milking, Lawrence’s death was used by the elites to demonise the white working classes as the new ‘brutes within’; to redefine racism as a disease of the brain rather than as a relation of power; and to dismantle long-standing legal principles that were once seen as central to the justice system.”
He’s got a point, although I would add that, not being as het up about class as Mr O’Neill is, I don’t see the disgust that many feel about race-related murders as some sort of ruling-class plot to stamp on lots of white proles. There is more than just a whiff of a new victimology here of the sort that far-right groups like to pander to.
There is real danger in ending the DJ principle, as it means the Crown Prosecution Service will not be under the same pressure in future to get all of its legal and evidential facts lined up as strongly as possible when bringing a case for trial, because it knows there will always be a chance that if it does not get a conviction on the first occasion, it can always have another crack at it later if something new turns up. It is a bit like European Union referendums: if the voters don’t give the “right” answer the first time, they can always be polled again. (As argued by a commenter on Tim Worstall’s own post on the issue).
A real concern for me is that the original case is over 18 years old. That is a long time and all kinds of issues about memory recall arise. Like I said, I don’t doubt that the guilty persons are the scum that they are but there are broader issues of due process of law at stake.
Here is another look at double jeopardy. And there has even been a film made using the title, Double Jeopardy. The CATO Institute has written on how this issue plays out in the US legal system.
People charged with serious crimes are rarely, IME, experiencing their first brush with the law.
Which is not too relevant. “Is the defendant an oxygen thief and too stupid to live in general?” is not, IME, the question on which we ask juries to rule.
The lack of double-jeopardy protection is obscene, IMHO.
Also worth considering is possibly whether murder should have a statute of limitations. At present, in my own state, all felonies have a three-year SoL, except for a few specific exceptions (muder and forgery have none, and its lengthened for sexual assault on children).
And while nobody in his right mind is going to suggest that people guilty of heinous crimes should be let to continue unmolested, memories fade. I don’t think I could testify to my first felony arrest today. Maybe refreshed off of the report, but somewhere along the way that changes from “testifying while refreshing one’s memory from notes or reports” (permissible and good practice IMHO) to “reading the report into the record while under oath” (not permissible.)[1]
But SoLs keep getting extended: the latest instance here was because nobody wanted to let molestor priests get away with it. Which is a motive I can’t fault, but it opens the door to more and more cases being brought on bad evidence.
And what about letting juries rule on the credibility of stale memories? After all, witness credibility is generally a question for the trier of fact. I guess it depends upon whether you trust juries or not. We could let them assess the credibility of police officers with Giglio issues, but we’re not going to give them the chance at those either.
Caveat: I know nothing of how UK courts see police reports written contemporaneously with an investigation, but offered as evidence two decades later.
[1] Each state is a little different. In mine, police reports are generally inadmissible. The admissible evidence is the officer’s sworn testimony. Witness statements included with the report are also inadmissible. What’s admissible is the witness’ testimony[2].
[2] ..except when impeaching a witness who changed his story. But I didn’t mean to ramble on about the hearsay rule and its 547 exceptions.
Part of the problem is that this was an unusually vile crime, and extreme cases make for bad law, and bad precedent.
I agree completely that the lack of double jeopardy protection is obscene.
I don’t think there should be a statute of limitations on murder. However, for there to be a prosecution after all this time, there must be very good (and new) physical evidence for a prosecution after such time. This certainly has come up in other recent times with cases in which DNA evidence has been used to solve old crimes, and in such cases it is perfectly possible for a fairly uncontroversial conviction. A case like this, in which there has been 18 years of screwing up by police, prosecutors, and everyone else, and 18 years of political and media posturing, does not make for good law.
This gives a whole new meaning to the phrase “If at first you don’t succeed try, try again.” I can see the poster going up in CPS offices.
I tend to agree that DJ is bad, the CPS is bad enough already so it does not need this extra help. Let the police and CPS do their jobs properly, they are after all paid to do just that.
As to evidence, was there not a case a year or so back when DNA evidence had been used but was later seen to be wrong but by then the people involved had been in gaol for some time.
I at least, expect better of as system that has been built up over very many years, only to be shown up in this fashion.
This case stopped being about the murder of Mr Lawrence at least 15 years ago. It was merely a useful mechanism for all sorts of people to advance all sorts of agendas.
It’s my understanding that the case against all the various alleged killers has always been pretty weak, with all sorts of vague and varying testimony from a parade of witnesses who all have issues of credibility – including most if not all of the group of 5 who have at various times been accused, charged, tried, acquitted, re-charged and now convicted of this murder. As I understand it, there’s really no physical evidence at all – which may be why it has not been possible to obtain a conviction up to now. This whole retrial has been (as I have read it reported) based upon tiny fragments of evidence now suddenly recovered after almost 20
years which do not (in and of themselves) tend to indicate the guilt of anyone for anything, never mind murder.
A weak case, of course, could not be allowed to stand in the way of a show trial and conviction. Too many people had too much invested in this issue to allow that to happen. The question of their actual guilt or innocence was left behind a long time ago – it got to the point where somebody/bodies had to go to jail for this murder, and the two convicted the other day fit the required outcome better than anyone else.
There’s no way that any of these 5 accused could obtain anything like a fair trial anywhere in the UK. One of the London red-tops famously named them all and accused them all of murder, on the front page, and dared them to sue for defamation. Tried in the media, by public opinion and by the interests of untold thousands of politicians, bureaucrats, journalists and others who needed a certain narrative to justify and extend their own existence, power, ratings, sales and prestige, some or all of this group of 5 were bound to be convicted of the crime – sooner or later.
FWIW, I don’t have too much doubt that the murderer(s) do in fact lie in this group of 5. But the way in which the case has been handled, over almost 2 decades, makes a travesty of any concept of objective justice, and Brits will rue the day that the sorts of shenanigans which surrounded this case finally come home to roost. The American colonists thought so much of the right to be free of double jeopardy that they made it a Constitutional provision – you gave it up without so much as a whimper, and with the braying approval of the gutter press, in order that a politically-expedient show trial could be allowed to proceed. Let us know how that works out for you. If the Crown can be allowed to repeatedly, endlessly prosecute these 5 defendants for murder until they get the result that the newspapers, public opinion and political expediency requires – just wait until they turn their attention to you for some vague and undefined crime, for which you cannot positively, overwhelmingly prove your innocence but for which they require a ‘result’.
The ‘satanic ritual abuse’ hysteria that plagued the US in the 1980s and ’90s springs to mind. No evidence, no proof, no chance of a conviction by any objective standard of justice, but the whipped-up masses require a result, and so a result shall be duly delivered. In fairness, it would be a bold advocate indded who would stand up for the rights of the accused and the principles of the Quenn’s justice in the face of such a gale.
Roper: “So now you’d give the devil the benefit of law?”
More: “Yes. What would you do? Cut a great road through the law to get after the devil?”
Roper: “I’d cut down every law in England to do that.”
More: “Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast – Man’s laws, not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then?
“Yes, I’d give the devil the benefit of the law, for my own safety’s sake.”
llater,
llamas
JP,
Makes a good point about a first trial not being necessarily as focused without DJ. Call me a cynic but apart from anything else does this not make work for lawyers? But more seriously consider the situation where you didn’t do it and are found not guilty. You’ve still got that sword of Damocles haven’t you. It’s not on.
And yes it was politicised. The judge himself said he took into account when sentencing “The level of public outrage”. Sorry but that is mob-rule.
The other thing that shocked me was that as juveniles (at the time) the “baseline sentence” was 12 years. At the stroke of midnight on their 18th(?) birthday it would have been 30. What magical thing happens to make someone instantly 2.5 times more culpable.
The Rule of Law in the UK has ceased to be; what replaced it is mere politicking pushed by lobbies, lawyers and Media. It is insane, but the insanity will continue as long as the political elite remain relatively untouched by it, and the plebs remain sufficiently inured and docile.
“[…] not being as het up about class as Mr O’Neill is, I don’t see the disgust that many feel about race-related murders as some sort of ruling-class plot to stamp on lots of white proles.”
The disgust with race-related violence is not a “plot”: it is the _pretext_ that the ruling class are using to stamp on dissent by white AND non-white, proles AND middle class. If you live in the UK and haven’t noticed that, then…I don’t know what to say, except that for me, it is enough to read The Economist to notice that. (NB: The Economist is amongst the stampers.)
I note that class analysis is also implicit in Hmm’s comment, as well as the 1st line of llamas’ comment.
I am not sure where DJ fits here.
Had these two specific chaps been prosecuted for this specific crime; and stood in jeopary of conviction?
Now, if particular actions constitute elements of several different “crimes” (however defined by common or statutory law), an actor may be tried for all violations in one prosecution, but not necessarily.
We have a grave set of problems in the U.S.; some of which are due to the proliferation in the designation of ill-defined actions (and imputations of motivations, etc.) as felonies – crimes.
The criminalization of conduct by statute has run wild.
I agree with llamas 100%.
“In practice, however, this hasn’t happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn’t have the ability to try or retry a state defendant.”
Respectfully, I believe Mr. Rittgers at The Cato Institute may be slightly understating the historical extent of the problem in the USA.
For a decade or more, prevailing (winning) state-court defendants have faced the possibility of having to go through a second trial in a federal courtroom for the exact same actions of which the state-court jury or judge has already declared the defendant not to have been proven guilty.
Say you’ve been accused of murder, (or rape, or assault, or kidnapping, or negligent vehicular manslaughter, or. . . just about any crime against another person), and you’ve been arrested and jailed while awaiting trial, and you’ve just now finished your trial on that charge of murder, and the jury has declared that you are Not Guilty of that charge!
Whew! Great relief. Mop the fear-sweat from your brow and go back and try to gather together the scattered pieces of your life, right?
Well, not so fast there, Baba Louie!
If the politically-appointed (by Prez Obama) United States Attorney – i.e., the presiding federal prosecutor for your state – if he or she is motivated for some reason to want to make headlines and drag you back into court and try you again for that same conduct, he can and will.
To get around the Double Jeopardy issue, they’ll attempt to prove the same conduct as the state-court prosecutor tried (and failed) to prove – i.e., that you murdered someone – but they’ll not technically charge you with murder.
Instead, they’ll charge you with depriving the victim of his civil rights. And, if they can convince their own jury that you murdered someone and thus violated their civil rights, you’ll likely receive a sentence as onerous as the sentence you would have received had you been found guilty of murder in the state’s court.
The political motivations that can cause the federal government’s U.S. Attorney to spring into vengeful action differ depending upon who is president at the time. In my state, our federal U.S. Attorney has recently been trumpeting his office’s success at sending a man to prison for six months in the first-in-the-country prosecution brought under our new Hate Crimes federal law. (He got drunk and beat up an old Somali guy – calling him “muslim” – after the local (very violent and very large) Somali youth gang that controls his neighborhood wouldn’t stop violently harassing him.)
Lots and lots of press releases and interviews have ensued, and the Big Cheeses from the main Washington United States Attorney’s Office have been traveling here to publicly commend the lawyers responsible for the prosecution. Needless to say, the Hate Crime federal statute is one of Obama’s favorites. (It’s always a good idea to honor your boss’s priorities.)
So, it’s now clear that the U.S.Attorneys for each state are going to be motivated to prosecute the more Politically Incorrect offenses that occur in their jurisdictions. Given their past use of “civil rights violations” as replacement charges in order to skirt the DJ problem, this could well be a source of political friction over here in the next year or five. (I note that the state-court assault charges were dropped against this defendant.)
Sunfish: “I don’t think I could testify to my first felony arrest today.”
And, thankfully, there’s no need for you to do so. Remember, w have that Fifth Amendment privilege against self-incrimination.
(Curious, though – how many arrests does it take before they all start to run together? I would think they’d be important milestones in your life and would make a rather big impression.)
😉
bobby b – Our friend Sunfish is a working copper. He was allowing as how he might have trouble testifying to the first felony arrest he made. I’m sure he remembers the first time he was arrested for a felony quite clearly ;-).
I’m sure that his recollection is not so much different than mine – I recall the arrest itself in great detail. I can tell you who was in the room, where it was, what time of day, and what I did to get to that point.
But if my life depended upon it, I could not truthfully testify from my own recollection as to the PC that led to the surveillance that led to the observation that led to the arrest, nor any detail of any step along the way.
True story.
I recently re-connected with a lady that I went to college with. This was at Antediluvian Poly., back when dinosaurs roamed the earth. She drove a rather unique vehicle back then – she had a monogram of her initials signwritten on the hood. Bonnet.
For the last 20 years, if asked upon my oath, I would have sworn up, down and sideways that it was a white Ford Cortina, mark III, with the lettering in blood red.
And I would have been wrong. It was a black Ford Capri, mark II, and the lettering was in gold.
Memeory is a funny thing. Just because you can recall something specific, unique, and out-of-the-ordinary, does not mean that everything that you remember about that things is correctly remembered.
Maybe there needs to be a SoL on cases based only upon human recollections – like eyewitness identifications. I’m sure Sunfish will concur that these have a nasty habit of becoming ingrained by repetition, even when they are completely incorrect.
llater,
llamas
Whether you want to use the term class or not it is not novel to note that the modern left wing has effectively ceased to eulogise and campaign for real working class people. It doesn’t trust the actual working class to be left to its own devices.
When did it ever?
@Alisa,
Absolutely never!
The Webbs were the most elitist snobs the world of their time could provide. GBS was little better.
Heres a little training scenario that should be done to every jury, lawyer and judge every time they set foot in a courtroom.
Years ago during our detention training we were diven a specific scenario where 3 people would have a fight over a ciggarette.
I was one of the actors.
The sceanio went, ask, refuse, push, shove, I swing punch, miss get knocked to the groung and kicked.
All pretty straight forward, good light, all sober people watching.
The results were bizarre to say the least, even a witness swearing a knife was used, I hadnt done anything, and NOT ONE WITNESS out of the 25 watching got it “right”.
It was a real wake up call to the unrelyability of witnesses, no one was “lying” they all stated what they thought they saw.
I hate this conviction because its a political sentence, not likely to be repeated for an “ordinary” murder.
And no I dont think race crimes are “special”, a crime is a crime, make note of the fact they were racialy motivated and move on to the actual death.
Pace Michael, I’m not sure it was an unusually vile crime. Near-random murders by groups of young thugs are fairly common, and because it is actually a bit harder to kill someone than you might expect, things that could have been murder but randomly result in permanent disablement and greater suffering, are much more so.
The reason these particular thugs have been so pursued, to the extent of being an exhibit in the removal of double jeopardy, is largely because of the unusual publicity given to the vile quality of the criminal investigation because it could itself be seen as racist. AFAIK no officers involved were disciplined. The establishment preferred posturing general self-righteousness about racism in general, and airy-fairy ideas of ‘institutional racism’ for which no-one in particular could be to blame.
The focus on the demon of racism is an easy moralistic explanation, so much better for all concerned than difficult questions about how power is exercised by human beings. It has the convenient function of both diverting attention away from oppressive and arbitrary behaviour of the Metropolitan Police, and providing a pretext for more powers for the authorities. Paying attention to the specific faults of the police in the case rather than using the broad of putting it down to racism, might diminish our confidence in the willingness and capacity of the state to protect us. Can’t have that.
As to motives, I agree with the most recent commenters: I do not see why A, given a black eye by B for racist reasons, is entitled to greater redress than C given a black eye by D for looking at him in a funny way in a pub.
I must admit a large lack of knowledge on law, but it seems to me that if after a case new evidence comes to light then that should be grounds for a re-trial.
Also I’m fairly impressed by the Daily Mail’s determined stance, I can remember being robbed at knife point in Nottingham in the 90s by two blokes, one white, one black (what a wonderful example of multiculturalism). When reporting it to the police, the officer who interviewed me went on a vile racist rant about black people and crime. The fact that the Lawrence case is political is due to the fact that the UK police were racist and the institution did need reform. Its even better for me that the News Paper that caused that is a Conservative paper when all the lefties weren’t interested.
We talked about this at the firehouse last night. By the miracles of the Intertubes, the many attendees who had never heard of this case were brought up to speed in minutes.
Interesting points were raised, echoing some of what Guy Herbert noted. Such acts of unmotivated (in the sense of personal animus between identified individuals) violence do occur, although they are fortunately infrequent and usually not this severe.
And, as described, this would be a cruelly difficult case to prosecute, regardless of any other circumstance.
A group of men descends on a single man, and then departs. The man lies dead of a stab wound.
There’s no weapon. What witnesses there are are all tainted (because they are all suspects). There’s no forensics to speak of – blood on his coat says he was there, but not that he struck the fatal blow. No prints, no fibers, no exchanged materials from victim to suspect or vide-versa. Nothing.
Yet nobody seems to take a minute and think that maybe – maybe – the reason that the police and the prosecutor couldn’t get a conviction for 18 years is not that the victim was black and the suspects are white, but simply because there isn’t any evidence to pin it on any individual or individuals.
Contra the general massive wailing and gnashing of teeth, I really don’t see too much evidence that the police ever seriously mishandled this case. There were some missteps, but guess what? This is not CSI, it’s a mystery, and like any mystery it is filled with misleading and confusing circumstances. The degree of hindsight being employed here often verges on the laughable -and there’s 18 years to look back on, so lots of opportunity to identify “failures”.
It seems to me much-more likely that the reason that the case didn’t go anywhere is because it had nowhere to go. The police had (essentially) a dead victim and a group of 5 suspects – and that’s it. In such a case, if you can’t turn one of the suspects on the others, or get a confession, it’s likely that they will all walk. Even if you can get some witness testiony, your case is still horrendously weak – a good trial advocate can rip it to shreds precisely because any witness is so easy to impeach.
Bad, bad, bad precedents have been set here. It would have been far, far better for the sake of justice to have let these loser scum be hounded to early graves by a relentless tide of public opprobrium, than to get the law involved – again. Because this case has shown that the law can be pimped out to public opinion – and she’s a cheap date. Don’t expect that to turn out well.
llamas
The ancient protection of double jeopardy stood no chance during the Blair regime. Anything old was automatically bad in his vision of a “young country”. He even thought he could abolish the office of Lord Chancellor over a weekend without telling anybody.
The problem in this case was that Stephen Lawrence’s parents were persuaded to bring a private prosecution for murder which stood no chance of success, and the defendents were acquitted. The people who made this possible bear a heavy responsibility. Let’s be fair to the CPS for once, they knew they did not have a winnable case at the time, and it was not their decision to go ahead half-cocked.
The Boblical injunction to do no murder is the foundation of all our homicide laws. However, the injunction is unqualified by any factor such as race, wealth or clan (no name but some).
The way our current law is written,however, is that if you murder someone, that is a bad thing; but if you shout, “Die, you fucking nigger!” before murdering someone, that makes it doubleplusungood.
Thus, killing someone because of their race is a worse crime than killing someone because it’s… Friday.
Somebody please explain the logic to me, because I just don’t get it.
Still looking for logic after all these years? Touching:-)