Evan Whitton was Editor of The National Times, Chief Reporter at The Sydney Morning Herald, and Reader in Journalism at Queensland University. He received the Walkley Award for National Journalism five times, and was Journalist of the Year 1983 for ‘courage and innovation’ in reporting an inquiry into judicial corruption. He began researching the West’s two legal systems in 1991 after observing how each system dealt with the same criminal, police chief Sir Terence Lewis. He is now a columnist on a legal journal, Justinian. This is his eighth non-fiction book.
Whitton’s work noticed
‘A dazzling writer, incisive and addictive’. – Dr George Miller, director Babe, Happy Feet.
Trial by Voodoo (1994)
‘The only book in the language that critically examines the law as a whole.’ – Professor Alex Ziegert, Sydney University.
The Cartel (1998)
‘Evan Whitton has said, with I think consummate wisdom: “Truth and justice require … the abolition of rules for concealing evidence.’ – Sir Laurence Street, former Chief Justice, NSW.
‘Whitton has a remarkably extensive knowledge of the legal system and the way it works … rich in anecdote … a wealth of historical knowledge and research … His insights are always valuable…’ – Justice Ian Callinan, High Court of Australia.
Serial Liars (2005)
‘ … confronts all the major lawyer arguments, and disposes of them.’ – Brett Dawson, former Crown Prosecutor.
Can of Worms (1986)
Amazing Scenes (1987)
*Can of Worms II (1987)
*The Hillbilly Dictator (1989, *updated edition 1993)
*Trial by Voodoo: Why the Law Defeats Truth and Democracy (1994)
*The Cartel: Lawyers and Their Nine Magic Tricks (1998)
*Serial Liars (2005)
The books marked * are available online at www.netk.net.au/WhittonHome.asp
For dearest Noela, without whom not a word of any of my books would have been written.
Copyright © 2009 Evan Whitton
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author.
The information, views, opinions and visuals expressed in this publication are solely those of the author(s) and do not necessarily reflect those of the publisher. The publisher disclaims any liabilities or responsibilities whatsoever for any damages, libel or liabilities arising directly or indirectly from the contents of this publication.
A copy of this publication can be found in the National Library of Australia.
- True Crime. 2 Justice. 3. Accusatorial system. 4. Anglo-American adversary system. 5. Evidence. 6. Anti-truth devices. 7 Perversion of justice. 8 Judges. 9 Legal history. 10 Lawyers’ ethics. 11. European investigative system.
Butterworths. Butterworths Concise Australian Legal Dictionary (Butterworths 1997).
DPP. Director of Public Prosecutions.
CDNB. The three-volume Concise Dictionary of National Biography (OUP 1992).
Columbia. The Columbia Encyclopaedia (Columbia University Press, fifth edition 1993).
Macquarie. The Macquarie Dictionary (Macquarie Library, 1985)
NSW. New South Wales, a state of Australia. The capital, Sydney, has a population of 4.5 million.
OxfordSC. The Oxford Companion to the Supreme Court of the United States ed. Kermit L Hall (OUP 1992).
OxfordLQ. The Oxford Dictionary of American Legal Quotations ed. Fred Shapiro (OUP 1993).
First, some definitions:
Justice. Maat, goddess of justice in Egypt c. 2700 BC, had a feather in her cap. It symbolised justice, truth, morality. A US judge, Harold Rothwax, said: ‘Without truth, there can be no justice.’ An Australian judge, Russell Fox, said justice means fairness; fairness to all and morality require a search for the truth; truth means reality. He also said: ‘The public estimation must be correct, that justice marches with the truth.’ The public thus know you can only be fair if you first find out what happened.
Common law. Judge-made law used in Britain and its former colonies, including the United States, India, Canada, Australia, and New Zealand.
The Gadarene Swine Fallacy (GSF). A group with the same beliefs is not necessarily heading in the right direction, e.g. Vietnam. England has not had a truth-seeking system for 1500 years, first by stupidity and then by cupidity, but common lawyers believe their system is the best. Justice, as Ludovic Kennedy noted, and Napoleon demonstrated, is too important to be left to judges. Or legal bureaucrats, academics, or law reform commissioners.
Sophistry. The art of lying is to make others believe things the liar knows are false. The motive is gain. Sophists, described by Socrates as morally bankrupt and by Plato as charlatans, taught Athenian lawyers how ‘to make the weaker argument appear the stronger’ 2500 years ago. Nothing changes. A US lawyer, Charles Curtis, said a lawyer’s function ‘is to lie for his client … He is required to make statements as well as arguments which he does not believe in.’
US film critic Joel Siegel said. ‘It’s only the 99% of lawyers who give the rest a bad name’. In fact, the bad name comes mainly from trial lawyers, some 40% of the total. The other 60% may be really nice persons who would never tell a lie. Common law judges are former trial lawyers untrained as judges.
Corrupt. The Latin corruptus means broken in pieces. This book explains why and how justice is broken in our adversary system. It is instructive to compare it with the world’s most widespread, accurate and cost-effective system: Napoleon’s investigative (inquisitorial) system, now used in European countries, their former colonies, and Japan, South Korea and other countries.
|In charge of evidence
|Length of civil hearings
|About a day
|Innocent in prison
|1% – 5%
Why are they so different? It is bootless to ask common lawyers. Law schools, in business for only 200 years, teach little legal history and slide round problems of truth and lawyer-control. George Orwell said: ‘The most powerful lie is the omission.’ The following may repair some omissions.
Roman law sought the truth, but in the Dark Ages after the Empire fell in 476, England and West Europe regressed to an anti-truth accusatorial system (A accused B; B said: Prove it!), barbaric ordeals and verdict by deity. Suspect witches were trussed and thrown in the river. If they sank, they were innocent. If they floated, they were guilty, and were fished out and hanged or burned to death. (Malignant cross-examination to defeat truth is the modern ordeal; rape victims have vomited on the witness box.)
Dickens said: ‘The one great principle of the English law is to make business for itself’, i.e. trial lawyers. In an irony that would have amused Bonaparte, it was a French organised criminal who was the remote cause of the bidness dagger being thrust into the heart of British justice. William II, son of Guillaume le Batard, institutionalised trickle-down extortion in the trade of authority (and was shot dead on 2 August 1100).
When the common law began in 1166, every public office, from Chancellor down, was thus for sale; buyers in turn extorted from people who had to deal with the office. Extorting judges and their lawyer-bagmen formed an alliance to protect and advance their business interests, including the graft. Richard Posner, a US economist and appellate judge, said lawyers and judges have always been ‘a cartel’ aiming ‘to secure a lustrous place in the financial and social status sun’. The relationship has given trial lawyers power unique in legal systems. The common law might be termed cartel-made law.
After November 1215, European courts adopted an investigative system, but judges infected by the GSF – they believed that torture produces truth – perverted the system for five centuries. Lawyers’ role in a truth-seeking system is necessarily limited; in 1219, the cartel decided to reject the investigative system and to retain the accusatorial system.
As the truth door shuts, the sophistry door opens, to judges as well as lawyers. London’s population in 1219 was about 25,000. The public are entitled to ask judges and lawyers: why should we be robbed of justice because 800 years ago a few crooks in a small town in England decided that truth does not matter?
Lawyers have been the ‘dominant influence’ in English-speaking legislatures since about 1350. That is not fair to untrained liars.
Adversarial justice is an oxymoron, like military intelligence and legal ethics: it is a variation of the anti-truth accusatorial system. The adversary system dates from 1460, when trial lawyers began to take over civil evidence. Controlling evidence enables them to omit the damaging bits; spin out the pre-trial and trial process; and procure enough pelf to comfortably retire, if they choose, to the social status of untrained, uninformed and passive judge.
Judges of course do the decent thing: they try to stay awake – Lord Thankerton knitted – but do they suddenly give up sophistry? Alan Dershowitz, a US lawyer, said ‘lying, distortion, and other forms of intellectual dishonesty are endemic among judges’. Two examples. A lie is the basis for the rule which saves criminals from giving evidence and so gets 25% off. A lie – absolutely does not mean absolutely – has cost Australian pay-as-you-earn taxpayers billions, but has made a lot of money for tax lawyers.
Extortion was not a 12th century aberration. In the 18th century, Lord Chancellor Macclesfield extorted bribes worth £500,000 today from barristers who wanted to be Masters in Chancery in order to extort from litigants. Francis Elde delivered the gold and notes to Macclesfield and his bagman, Master Peter Cottingham, in a clothes-basket. In the late 20th century, 20 extorting Chicago judges and 50 of their bagmen went to prison.
Members of a cartel, e.g. the oil cartel and the Australian cardboard box cartel, collude to increase prices, typically by 15%-25%. From about 1650, Chancery judges refused to finalise will cases for decades. Why? Lawyers were paid from the deceased estates. Jennens v Jennens, the model for Dickens’ Jarndyce v Jarndyce, began in 1798. It ended in 1915, when lawyers and judges had ‘devoured’ the remnants of an estate worth some £500 million today.
Trial lawyers did not defend accused until the rise of blue collar organised crime in the 18th century made it worthwhile. The low conviction rate is due to the invention since 1790 of 20 anti-truth devices, including six rules which conceal evidence from jurors. Lawyers say it makes trials fair, but fairness means truth. No other system hides evidence.
Dershowitz said: ‘The American criminal justice system is corrupt to its core … The corruption lies … in its processes …’ He said all defence lawyers, prosecutors and judges know ‘almost all’ (say 95%) of accused are guilty. They are thus almost always, in effect, accomplices after the fact. In 1994, NSW judges sitting alone (and hiding evidence from themselves) convicted only 25% of accused. Honest cops doggedly investigating crime are plainly of more use to society than judges and trial lawyers.
Napoleon had time to begin to reform and codify the investigative system only because, by a fluke, his generals, Desaix, Marmont and Kellermann, crushed Austria at the Battle of Chicken Marengo in 1800. His system is generally accurate because trained judges search for the truth, and is cost-effective because they have no incentive to spin the process out. On average, the cost of a libel action in England is 140 times that of a libel action in Europe.
The adversary system is biased against people in business, industry, medicine, and the media, and in favour of criminals. The bias makes business for trial lawyers and the rule of law a joke in the worst possible taste. Citizens on sophistry watch must have the hopeless feeling that any judgment or verdict may be right, or it may not.
The remedy is simple. Common law countries already use an investigative system when they need to find the truth. Six times as many judges (and fewer lawyers) will be needed, but the law will be cheaper as well as more just. Academics will have to be retrained, but searching for the truth is easier than mugging up 24 ways to conceal or otherwise defeat it. The cartel can then be dismantled by training judges separately from lawyers, as they do in Europe.
All we are saying, is give truth a chance. But trial lawyers, academics and, behind the scenes, legal bureaucrats will offer noisy resistance, as in India (conviction rate 16%) when an inquiry recommended changing to a truth-seeking criminal system.
Lawyers are only 0.2% of the population, and their utterance may be mere sophistry informed by the Gadarene Swine Fallacy, but their access to the media is as disproportionate as their numbers in legislatures. The parrot-house, however, can be safely ignored. The public know that justice means truth; the vast majority of voters will support change to a What happened? system.
Note. Our Corrupt Legal System is an updated and restructured version of Serial Liars (2005)
– Evan Whitton, Sydney, January 2010
Johann Graefe’s Tribunal Reformation (1624) spurred opposition to judicial torture in Europe, and the Enlightenment ended it. Frederick the Great abolished torture in Prussia in 1754. In 1764 an Italian lawyer, Cesare Beccaria, argued in An Essay on Crimes and Punishments that torture punished the innocent and should not be necessary to prove guilt. His book was translated into 22 languages. Judicial torture was abolished in Italy in 1786, in France in 1789, and in Russia in 1801.
Revolutionary France proposed a fair society and laws based on rational principles. Jean Jacques Cambacéres spent the decade from 1789 grappling with a code but all his drafts were rejected. The issue was decided by another accident of history in Piedmont, North Italy, on Saturday, 14 June, 1800.
The first Battle of Marengo was between a French army under First Consul Napoleon Bonaparte and an Austrian army under General Michael von Melas. Bonaparte, wrongly believing that Melas would retreat to Genoa, sent General Louis Desaix to cut off his presumed retreat, but Melas attacked at 9 am. Bonaparte sent a message to Desaix: ‘For God’s sake, come back, if still you can.’
Archie Macdonell noted in Napoleon and His Marshals (Macmillan 1934, Prion 1996) that one of Bonaparte’s generals, Nicolas Soult, had been wounded and captured in a skirmish outside Genoa and was taken to an Austrian hospital at Alessandria near Marengo. Macdonell wrote:
All day long on June 14, 1800 Soult … listened to the sound of the guns at Marengo. He knew very well that the fortune of France was at stake, and that the First Consul, by coming over the St Bernard instead of making a frontal attack along the coast route, was staking everything on a single battle. For hours there was no news at Alessandria, but Soult’s expert ear told him all that he needed to know. The bombardment was getting fainter and fainter, and that could only mean that the First Consul was being driven back. A French victory meant that Melas was fatally cut off from Vienna. But the coin had two sides, and an Austrian victory meant that Bonaparte was fatally cut off from France.
By 2 pm that afternoon, Melas had forced the French to retreat for two miles. Macdonell: ‘In the afternoon of that thundery summer’s day the first Austrian wounded began to come in to Soult’s hospital with their stories of victory all along the line, and at 4 pm there was a terrible silence in the east.‘ Rumours shortly reached Paris that Bonaparte was probably dead and certainly finished.
But Desaix had arrived on the field at 3 pm and breezily advised the First Consul: ‘This battle is completely lost, but it is only two o’clock [sic]; there is time to win another.’ Macdonell: ‘[General Auguste Marmont, commanding the guns, had fought furiously all day until he had only five pieces left. Five more were brought up from reserve and Desaix had eight.’
The so-called (at least by the present writer) Battle of Chicken Marengo began at 5 pm with a 20-minute bombardment by Marmont’s artillery. Bonaparte’s greatest achievement, the reform of the investigative system, turned on what happened in a few minutes after 5.20 pm. Macdonell briskly reported:
The French counter-attack was, by chance, one of the most perfectly timed tactical operations by combined infantry, artillery, and cavalry in the whole history of warfare… Suddenly, through the dense smoke, [Marmont] saw, not 50 yards in front, a battalion of Austrian Grenadiers advancing in perfect formation to counter the counter-attack, and some of Desaix’s men were tumbling back in confusion. Marmont, whatever his faults might be, was a quick thinker, and he unlimbered his four guns and fired four rounds of canister at point-blank range into the compact battalion, and at that precise moment, while the Austrians were staggering under the blow and an Austrian ammunition-wagon was exploding with a monstrous detonation, Desaix went forward with a shout [and was killed by a bullet to his head], and young [Francois] Kellermann, son of old Valmy [Francois Christophe] Kellermann, came thundering down on the flank, through the mulberry trees and the tall luxuriant vines, with a handful of heavy cavalry. A minute earlier, or three minutes later, and the thing could not have succeeded, but the timing was perfect, and North Italy was recovered in that moment for the French Republic … at eight o’clock … the Austrian surgeons came rushing to their distinguished guest [Soult] with the news of the utter rout of their men.
Bonaparte rightly gets the credit for reforming the investigative system but without Desaix, Marmont and Kellermann, the system might still be a shambles of local variations and interpretations.
Bonaparte, who did not eat before a battle, was famished. His cook, Dunand, invented a meal from the materials to hand, a chicken, some tomatoes, mushrooms, eggs, prawns, and a crayfish, all cooked in brandy flames. Today’s Pollo Marengo is essentially chicken, mushrooms and tomatoes.
Austria sued for peace; Bonaparte hastily showed himself in Paris, falsely claimed credit for the victory, and in the breathing space acquired by the Austrian capitulation, applied his intellect and energy to drafting a code of civil law. He said he wanted everyone to be able to read and understand the code and so know his duty.
In August 1800, Bonaparte set up a committee of four lawyers, of whom the most significant were Jean-Étienne-Marie Portalis, nearly blind, 54, and François-Denis Tronchet, 73. They met in Tronchet’s house, and had a draft printed by 1 January 1801. Judges added their comments and the draft was discussed clause-by-clause at more than 90 meetings of the Council of State (Conseil d’Etat) between July and December 1801.
Bonaparte read law books to prepare himself and chaired more than half the meetings. A council member, Antoine Thibaudeau, said Bonaparte ‘took a very active part in the debates, beginning, sustaining, directing, and reanimating them by turns. General Marmont, 26, hero of Marengo, attended a number of sessions. He said Napoleon was:
… silent at first, until members had put forward their opinions, he would then begin to speak, and often presented the question from an entirely different point of view. He commanded no eloquence, but had a flowing delivery, a compelling logic, and a forcible manner of objection. He was extremely fertile in ideas, and his speech gave evidence of a wealth of expression which I have experienced in no one else. His extraordinary intellect shone out in these debates, where so many topics were entirely foreign to him.
Bonaparte himself said:
In these discussions I have sometimes said things which a quarter of an hour later I have found were all wrong. I have no wish to pass for being worth more than I really am … Tronchet, I admire your intelligence and the strength of your memory. For a man of your age, it is exceptional and deserves to be pointed out. Portalis, you would be the greatest of speakers if you only knew when to stop … Cambacéres, I sometimes suspect you of behaving like a talented lawyer who can defend a case or reject an idea without the slightest reference to his own personal feelings.
Portalis presented the first eight articles of the Code to the Tribunate on 24 November 1801, but it was rejected 65-13. Napoleon withdrew the draft on 3 January 1802 and removed obstructive Tribunes. The 36 sections of the Civil Code, largely written by Portalis, were enacted, one after the other, from March 1803 through to March 1804. In all, the code had 2281 clauses.
Other codes produced at Bonaparte’s instigation were the Code de Procedure Civile (1806), Code de Commerce (1807), Code d’Instruction Criminelle (Code of Criminal Investigation 1808), and Code Penal (1810). Along with the Civil Code, they are regarded as the Napoleonic Code. The Criminal Code invented the juge d’instruction (investigating magistrate) and reinforced the objective, ‘the manifestation of the truth’.
Bonaparte said: ‘My glory is not to have won forty battles, for Waterloo’s defeat will blot out the memory of as many victories. But nothing can blot out my Civil Code. That will live eternally.’ Yale law professor Morris L. Cohen wrote in Law: The Art of Justice (Levin, 1992):
The Napoleon codification successfully achieved a number of goals. The law was to be accessible to all, uniform throughout France and based on democratic principles and economic liberalism. The code is still considered a masterpiece of French prose, and has been called the greatest book of French literature by the poet Paul Valery. The Civil Code was supposed to have been read regularly by the novelist Stendahl as a stylistic model for his own writing. It was quickly translated into many languages and its popularity spread throughout Europe. Similar codes were enacted in most of the countries of the world which were not under the common law system. What had started as a French achievement became a model for a worldwide legal revolution.
Professor George Dargo, of the New England School of Law, says in OxfordSC that the European system, ‘is the most widespread and important legal tradition in the modern world’.
Bonaparte placed 36th in Professor Darien McWhirter’s list of 100 people who most influenced the law.