Why, oh why? Juries and the reasons for their decisions

It’s easy to be an armchair judge or jury member. I must admit that I was surprised when I read that Thomas Towle was found not guilty of six counts of culpable driving causing death. Instead, the jurors found him guilty of dangerous driving causing death, which is a lesser offence carrying a lesser sentence.

In 2006, the car Towle was driving spun out of control and crashed into a group of teenagers walking home from a party, killing 6 of them and seriously injuring 4 others. After the accident, he fled the scene, leaving his four year old son and ten year old daughter in the car. The parents of the dead teenagers have been outraged and distressed by the lesser conviction, particularly after it emerged that Towle had prior driving offences about which the jury had not been told. Of course, the reports that Towle’s father blames the “sinful” teenagers rather than his son for the accident will distress the parents even further.

But I also know from my own days in practice that it’s very different sitting through an entire case than it is reading a newspaper report. Indeed, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing which established exactly that. In the executive summary to the report it is stated that:

• In the abstract, the public thinks that sentences are too lenient
• In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
• People have very little accurate knowledge of crime and the criminal justice system
• The mass media is the primary source of information on crime and justice issues
• When people are given more information, their levels of punitiveness drop dramatically
• People with previous experiences of crime victimisation are no more punitive than the general community
• People with high levels of fear of crime are more likely to be punitive
• Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
• Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
• Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
• Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
• Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture

{emphasis added}

The report is well worth reading in full if you have a moment. Essentially, the only criminal cases about which we are told in the media are the “juicy” and shocking ones, where the result is newsworthy and sensational. Of course, media outlets like to focus on outraged victims and/or their families in these cases. Further, we only know a small proportion of the facts that come before a judge and jury, and studies have shown that when people are given more facts, their views of an appropriate response change. So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.

Back to the Towle case. The four principal charges against Towle were:

• Six counts of culpable driving causing death;
• Four counts of negligently causing serious injury;
• Six counts of dangerous driving causing death;
• Four counts of dangerous driving causing serious injury.

There were other charges, but I won’t mention them here. The first two were the more serious charges, with culpable driving carrying a penalty of up to 20 years in gaol. The second two were the alternative lesser charges, with dangerous driving carrying a penalty of up to 5 years in gaol. In order to prove that Towle was guilty of culpable driving, the prosecution had to prove that Towle was “grossly” negligent, whereas for the lesser charge of dangerous driving, the prosecution merely had to prove that Towle was negligent. In judging whether Towle’s driving was grossly negligent, or merely negligent, the jury could not be swayed by the horrific consequences of the accident or Towle’s cowardly actions afterwards. The question was to what degree the driving up to the accident was negligent?

I can’t answer that question. I don’t know all the information which the jury received. It is clear that he was speeding, with his son sitting on his lap, but I don’t know what the expert evidence was.

We also don’t know what the sentence will be yet. Justice Cummins will consider that question on Monday. However, in that context, I thought I might look at another report by the Victorian Sentencing Advisory Committee, which provides a “snapshot” of sentences for culpable driving causing death. It was interesting to note that the most common sentence of imprisonment for the more serious offence of culpable driving was four years with a non-parole period of two years. The median principal imprisonment level was 5 years. So even if Towle had been convicted of the more serious offence, according to the law of averages, he may still have been facing a sentence of around 5 years. It will be interesting to see what the sentence is. I suspect it will be at the higher end for dangerous driving, but I can’t say for sure.

The other question which has been raised in the light of this case is whether juries should explain their verdicts. Dr Mirko Bagaric and Colin Lovitt QC presented opposing points of view in The Herald Sun today. Presently, juries are not allowed to explain their verdicts to the press or anyone else. This is in contrast to the US, where juries can give interviews to the press explaining why they decided as they did. Sometimes this creates an unpleasant media circus where jury members are hounded by the press.

I think I sit somewhere between Bagaric and Lovitt. I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. As I’ve noted above, the more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict. Of course, the problem with this is that it may lead to more appeals in criminal cases if a potential flaw is found in the jury’s reasoning. But then, as Bagaric says, isn’t it fairer that we redress flaws than leave them hidden? And I think it’s always better to know than to be left in the dark. It may be that the jury had perfectly explicable reasons for deciding as they did in this case, and I think they should be allowed to give a statement justifying their decision.

Portrayal of accused and the law

Dave Bath at Balneus has an interesting post comparing the court sketches of Dr Haneef, noting that the sketches in the Murdoch press make Dr Haneef look somewhat like a Neanderthal.

Now it could just be a matter of personal interpretation. I must confess that when I worked in and around the court system, I used to occasionally do sketches of people (witnesses, barristers etc). Some sketches were better than others. Some people might have been a bit offended had they seen some of my renditions. Sometimes a sketch took on the character of a parody, even when I hadn’t intended it to do so. Perhaps that’s what happened to the Court artist.

But Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the public to draw adverse conclusions about that person?

This area of the law is called “contempt of court by publication”, and it is a somewhat byzantine jurisdiction. There is an inherent jurisdiction in the court, and also legislative provisions preventing contempt of court. Contempt by publication covers the publication of material which might tend to adversely influence a jury before trial. There is of course a balance between freedom of speech and the right of a defendant to a fair trial. The question is also how far media representations do actually influence jury members. According to the WA Law Reform Commission Report on Contempt, a study (M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (2001)) found:

1. Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate.

2. Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.

3. In trials where the evidence was equivocal [that is, not strong in favour of guilt or clearly insufficient]…there was greater reason to believe that publicity may have affected the verdict.

As a lawyer who has seen cases that she has worked on reported in the press, I would agree that you really can’t trust press reports, and that it is quite a different thing to sit in court and watch witnesses testifying to reading about it in the paper. Also, seeing someone in the flesh is very different to seeing them in a photograph or even on television. Personally, I discounted much of what I had read or seen in the press in favour of my own first-hand impressions. But I don’t know if I was influenced subconsciously in any way.

In fact, this is not the first time issues like these have arisen in a high profile case. My mind went back to the media coverage of that terrible event, the Port Arthur massacre, perpetrated by Martin Bryant. Some of the papers, including The Australian, ran a picture where the Bryant’s eyes had apparently been digitally altered in order to emphasise the whites of his eyes, which gave him a crazed look. The then Director of Public Prosecutions, Damian Bugg, issued writs against various media outlets for contempt of court in the light of concern that the sensationalised media reporting would prejudice the defendant’s chance of getting a fair trial (and thus make Mr Bugg’s job much harder).

However, the then chair of Australian Press Council, David Flint, argued that Australian newspapers regularly ignored contempt-of-court provisions, indicating that the law needed to change, rather than the newspapers.

Clearly it’s not a straightforward question. I will be very interested to see what Dr Haneef looks like in a photo, and whether the Murdoch press’ portrayal is fair or not.

What’s in a name?

A judge in Nebraska has banned the prosecution from using the words “rape”, “sexual assault”, “victim” and “assailant” in a rape and sexual assault trial. Or should it be a [BLANK] and [BLANK BLANK] trial? The [BLANK] (otherwise known as the victim) is also not allowed to use these words when giving evidence. Apparently Nebraskan law gives judges a broad discretion to ban language that leads to “unfair prejudice, confusion of the issues or misleading the jury.”

This is the second trial of the matter. In November 2006, the jury in the first trial failed to come to a verdict, deadlocked 7 – 5. Similar orders were made in that trial.

The defendant’s attorney claimed that, “[Trials] should not turn on politicized hyperbole. They should turn on the facts. …Using words like “rape” creates unfair prejudices for defendants and invades the [duties] of the jury.”

By contrast, the victim said, “[The jurors will] think I’m choosing to use the word ‘sex’. I had to pause [at the first trial] and think, re-navigate… Jurors won’t find me credible because I’m pausing to find the words.”

Of course, prior to the the second trial, the prosecution naturally applied to have the words “sex” and “intercourse” barred from the courtroom as well, on the basis that these words inferred that the sex was consensual. The judge denied that motion. Presumably he did so on the basis that there would be no words left to describe what happened.

I was trying to write up this story using words other than “rape” and “sexual offence”. It’s very difficult, if not impossible. The synonyms of “rape” have connotations of crime, or are so archaic (eg “deflower”) that a jury might not understand the meaning. To say, “I woke up and the man sitting in the box over there was despoiling me,” sounds silly.

How far do you take it? Do you ban the use of all adjectives in the court? In fact, even the sight of an accused sitting there between two prison guards and wearing orange overalls carries an implication that he has been accused of a crime, and might possibly be guilty.

It’s all part of a broader tendency in the criminal law. Why is there a double standard with respect to rape versus other crimes? Let’s say I’m walking down the street with a handbag loosely over my shoulder. A thief snatches it. It’s true that I could have held onto the bag more tightly, or wound the strap around my upper arm to secure it to my body or been more observant, but I just wasn’t expecting it to be snatched. A defence barrister is hardly likely to say that I’m “asking for it” to be stolen. Even if I pass out on the street drunkenly so that I’m unable to stop someone from snatching my bag, I’m still not regarded as “asking for it”. But if I’m walking down the street in a shoestring strap top and skirt, and I’m sexually assaulted, how come a defence barrister will say I’m “asking for it”?

As the Slate article which was the source for this post points out, defence barristers are not arguing that murder or theft be described by other names. It’s only in rape trials. Just another example of the double standard.

It’s political correctness gone crazy.  To me, the solution is that the judge should allow the prosecution to say “rape” and the defence to say “sex” or “consensual sex”. Then the jury can make up its own mind. Legal argument invariably involves colouring the language which you use. Just a fact of life. But both sides should be able to colour their language equally. And if they go over the top, the judge can warn them to tone it down and explain to the jury that they should not infer anything from those words.

(Via Slate)