Jag fick ett brev om hur man i anglosachsiska rättsordningar hemlighåller en misstänkts tidigare brottslighet och tidigare tillvägagångssätt för domstolarna. Ur svensk synpunkt kan det vara av intresse att läsa som exempel på hur det kan bli när domare inte kan något om bevisning. Faran är då att man vill hemlilghålla vissa typer av information för domstolen därför att man inte litar på domarnas förmåga.

Avsändare är en australisk författare och journalist, Evan Witton, med inriktning på deras rättsväsende, Evan Witton. Han bifogade ett kapital ur sin bok "Our corrupt legal system" rörande hur anglosachsiska domstolar avhändes möjligheten att jämföra en åtalad persons tillvägagångssätt med vad han har blivit dömd för tidigare.

Dear Bo,
It is natural for a judge whose system seeks the truth to be amazed at the evidence concealed by English judges.
I append the relevant section from Our Corrupt Legal System.I should say that pattern evidence is concealed during the trial, and stays hidden if the accused is aquitted. But if he is found guilty, the evidence is then revealed to the judge to help him with the sentence.


OUR CORRUPT LEGAL SYSTEM, 17. Concealing a pattern

Justice Russell Fox says an understanding of facts depends heavily on context, but as Dr Bob Moles notes in the Foreword to this book: ‘ … most of what we need to know to place the knowledge in context in trials is ruled to be inadmissible … ‘

The rule against ‘similar facts’ specifically hides evidence of a pattern of criminal behaviour. In another lie by omission, prosecutors are obliged to falsely imply that the accused is a first offender. For instance, in 2003 an incompetent Welsh thief’s 247 previous convictions were concealed from the jury. He was found not guilty of theft. The rule thus eliminates much context, truncates the chronology – always the first element of deduction – and protects repeat criminals, e.g. serial rapists and organised criminals such as extorting judges and the Mob.

The rule, a relatively recent concoction, derives from a case of systematic murder of babies. Sydney ‘baby-farmers’ John and Sarah Makin took in unwanted babies for a fee; murdered them; and buried the bodies in their back yards. They were charged with murdering one baby. The trial judge let in evidence of 12 other dead babies found in the yards of their various previous homes. The guilty verdict was appealed up to the Privy Council in England on the basis that evidence of the other 12 murders was unfair to the Makins.

In Makin v Attorney-General of NSW (1894), the Privy Council dismissed the appeal, but Lord Chancellor (1886 and 1892-95) Farrer Herschell (1837-99) used words which have been taken to mean that pattern evidence will almost never be admitted. Herschell said:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely to have committed the offence for which he is being tried.

Dr John Forbes said in Similar Facts that, ‘despite complaints that Makin is vague if not almost vacuous’, Herschell’s remarks ‘still enjoy scriptural status’. Dr Forbes noted a US version in People v Molineux (1901): ‘The State cannot prove against a defendant any crime not alleged in the indictment … as aiding the proofs that he is guilty of the crime charged.’ Oliver Cyriax, a lawyer, wrote in The Penguin Encyclopedia of Crime (1996):

It is generally agreed that the date-rape case against William Kennedy Smith failed on the first day of the trial, 2 December 1991, when the prosecution was barred from calling evidence of similar assaults by Smith. The rules against ‘similar evidence’ are strict. Nothing is more likely to lead a jury to a finding of guilty – on the 17th occasion – than to hear the suspect committed (or has been acquitted of committing) the same offence 16 times before … evidence of prior acts is only admissible if the crimes show a clear and unique ‘signature’ or modus operandi.

Jason Van Der Baan committed a number of sex crimes in Sydney between 1994 and 1996. In 2001 he was convicted on two sex crimes and sentenced to eight years. He was then charged with the murder of his aunt, Mrs Irene Wilson, 39, at her home in 1995. She was found face down on a bed with her hands tied behind her back and a cord around her neck. In 2002, the trial judge, Greg James, felt that the law obliged him to conceal:

· Van Der Baan’s two previous convictions for sexual assault.

· His confession to an undercover police officer in prison.

· Evidence that he tied up other victims in the same way as the murderer of Mrs Wilson.

· Evidence that he was obsessed with her and had stolen her underwear and cut out the crotch.

The defence was of the SOD variety. A friend of Mrs Wilson was cross-examined as if he was a suspect. He was not allowed to sit with the family in court because it would be unfair to the accused if the jury could see he was still a friend of the family. The jury took only three hours to find Van Der Baan not guilty. Even Dominick Dunne could not have improved on the words of Mrs Wilson’s brother:

This trial was not about the murder of my sister … it wasn't about truth or about justice; it was about points of law. All we hear about are the rights of the accused. What about her rights to have lived and seen her children grow? What about the rights of her children to be cared for by a loving mother?

Van Der Baan hoped to get parole on the other crimes when DNA (deoxyribonucleic acid) evidence tied him to a sex crime in 1995 and another in 1996. He pleaded guilty to the charges in April 2009.

The US has had an exception to the rule against pattern evidence since 1970, but only for organised criminals in the Mafia, in business, and in the judiciary. The exception was the product of an unlikely combination of a Mob hitter, a Senator, a young lawyer, and a complex President. Senator John McClellan (Democrat, Arkansas, 1896-1977), a lawyer, chaired the Sub-committee on Investigations from 1955 to 1973. In 1963, an assassin in the Genovese family, Joe Valachi (1903-71), explained the structure of the Mafia to the sub-committee and, via television, to the public.

Bob Blakey was the principal draftsman of subsequent legislation to deal with organised crime. The legislation was to hand when Richard Nixon ran for President in 1968 partly on law and order, and was passed in 1970 as the Organized Crime Control Act. The RICO (Racketeer-Influenced and Corrupt Organisations) legislation is Title IX of the Act.

RICO was plainly going to make it harder for lawyers to get rich organised criminals off. I asked Blakey, now a law professor at Notre Dame, in 2001 how he got RICO past the American Bar Association. He replied:

Only with difficulty. The ABA at first endorsed it. We had an in with the President [Nixon]. It [the ABA] then raised objections. We overcame them with White House support.

RICO’s effect on the Mob confirmed that the pattern rule perverts justice on a huge scale. It put away 23 previously untouched Mafia bosses throughout the US between 1981 and 1992 including those of the five New York families: Frank (Funzi) Tieri and Anthony (Fat Tony) Salerno (Genovese family), Anthony (Tony Ducks) Corallo and Vittorio Amuso (Lucchese family), Carmine (The Snake) Persico and Vicorio Orena (Colombo family), and John Gotti (Gambino family). Vincente (Chin) Gigante (Genovese family) was convicted in 1997.

RICO was used to imprison 70 white collar organised criminals in Chicago: 20 judges and their 50 bagmen (lawyers and court officials) between 1984 and 1994

In 1994, US federal rules of evidence were revised to allow the use of prior alleged acts in federal sex cases. A few states, including California, Indiana, Illinois and Missouri, adopted similar rules.

In 2004, British Home Secretary David Blunkett, announced a plan to give judges a discretion to let jurors hear of an accused’s previous convictions. He said: ‘These reforms put victims at the heart of the justice system. Trials should be a search for the truth [!] and juries should be trusted with all the relevant evidence to help them to reach proper and fair decisions.’

Blunkett no doubt meant well, but Professor Benjamin Barton would say it is unwise to give judges a discretion in matters which affect lawyers’ financial interests. And if the Government really believed that trials should be a search for truth, they would abolish the other 23 anti-truth devices.

Australian police and other experts have requested RICO-type legislation since 1984, but the rule against pattern evidence continues to protect white-collar organised criminals, the Calabrian ‘Ndrangheta, and sex criminals.