Do our courts know what evidence is?

At 2:00 in the morning on 25 January 1995, Boston police officer Kenny Conley was chasing a shooting suspect who climbed over a chain-link fence. An undercover officer named Michael Cox had arrived on the scene moments earlier, but other officers had mistaken him for a suspect, assaulted him from behind, and brutally beat him. Conley chased the suspect over the fence and apprehended him some time later. In later testimony, Conley said that he ran right past the place where Cox was under attack, but he claimed not to have seen the incident. The investigators, prosecutors, and jurors in the case all assumed that because Conley could have seen the beating, Conley must have seen the beating, and therefore must have been lying to protect his comrades. Conley was convicted of perjury and obstruction of justice and was sentenced to thirty-four months in jail.

This is obviously a US case, but courts around the world have difficulty with “evidence”.  There’s a long list from the UK I’m aware of – Nico Bento being the classic, in which the very evidence that should have secured his acquittal was turned to the damning piece.  This involved a judge and jury being asked not to believer their own eyes but the cock-and-bull of an “expert” already discredited elsewhere.

Kenny Conley is more likely a decent cop doing his job with some bravery than some in the UK public eye recently.  The matter is reported in the journal i-Perception –

http://i-perception.perceptionweb.com/journal/I/volume/2/article/i0436

This journal has much about it I would commend, notably that it is free to read and freely available – a model our public affairs should follow.

Our court systems rely on concepts of evidence that are very dated.  Decisions on fact are essentially taken by lay people – magistrates and juries.  This might be a good thing, given some of what is emerging on “expert” decisions in the Crown Prosecution Service and seeps out on bureaucratic manipulations in the like of Baby P, though the same flaws are present in our court rooms because what can be presented in court is severely limited by cost, representation and ‘legal rules’.

Human history is not one in which many people have shown much notion of what real evidence is.  In this case, it isn’t so much that the academics have established that it is quite likely that we might well not see and incident whilst focused on another, but that courts are making decisions on what they cannot know as though they could and prepared to send people to jail on that basis.  Many questions spring up, including that if this can happen to a cop with representation, what else might be going on in cases with no representation?

I feel for Kenny, having been in a similar situation.  The point really though is that the time for our courts to be subjected to proper public scrutiny is long overdue – and this needs to be scrutiny beyond that of superior courts.  I gave evidence that wasn’t quite true in order to both tell the truth and defend an officer doing his job.  Other officers present lied that they could not see the incident, something easily disproved in an recreation (there wasn’t one).  I was some distance further away and arresting someone else – they were, in fact, just watching and the idle and incompetent of many other incidents.

Our courts have been pretending on evidence for centuries.  Our legal system is based on fictions and in no way approaches scientific criteria on evidence – it could not entirely of course.  What really worries me about Kenny’s case is that we would send a man to jail in the belief he was lying about the fact that he could have given evidence, with no one bothering to find out whether anyone was likely to have been able to.

One cannot read i-Perception and conclude anyone was likely to be able to give the evidence Kenny was assumed to have been able to witness.  Yet we assume all kinds of worthies can’t see the blatant corruption around them in Baby P, Parliamentary expenses and in hiring a bent forensic expert who lies to court (Bento) or in CPS decision-making on Harwood and in failing to disclose on undercover officers etc.  All these worthies are clearly more guilty than Kenny, even if he did see the fight.  Unlike the nose-in-the-troughs the sharp end appears exposed to the same unfair ‘justice’ as the rest of us.

What about an experiment on whether we would ‘see’ corruption around us?  The Establishment knows we do – that’s why Tisdale and the guy who told us which direction the Belgrano was sailing in were prosecuted and why whistle-blowers are treated like lepers.

Kenny Conley eventually won on appeal, though not on the academic research.  My own feelings are that it is time to stop the nonsense of magistrates and juries making up their minds on whatever is skewed at them in the weird settings of courtrooms.  Could we not come up with a better system of public scrutiny?  I don’t really mean new court systems – something systemic that would not have to rely on ‘personal integrity’ or ‘value ethics’ acting in secret?

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