Gallavin on Litigation: What to do when you see an injustice?

By Dr Chris Gallavin

Monday 21 April 2014 – while we were all enjoying a public holiday - “Hurricane” Carter died in Toronto aged 76.

One of the 20th century’s most publicised miscarriage of justice cases, Hurricane Carter was convicted of a triple murder not once but twice and served 19 years in prison before his exoneration in 1985.

On releasing Carter, United States District Judge H Lee Sarokin stated that the prosecution of Carter had been “predicated upon an appeal to racism rather than reason, and concealment rather than disclosure”.

A Bob Dylan song, many books and a Hollywood blockbuster all paid tribute to the man at the centre of a gross injustice the legal system seemed ill equipped to adequately remedy. Here, I do not attempt to draw parallels between New Zealand and the charged social and political environment of late 1960s USA. But miscarriages do happen and, despite the majority of cases that seem to progress uneventfully through our system every day, it is those cases that get stuck or are processed seemingly in defiance of logic and open justice that come to represent the strength (or weakness) of our system as a whole.

Whatever one feels about the guilt or otherwise of David Bain, Peter Ellis, Mark Lundy, Scott Watson and Teina Pora, it is cases such as these that will and have come to represent our system. For many they become the poster cases for substantive and procedural unfairness the likes of which leave the system injured if not generally weakened in the minds of the populus.

When combined with a growing problem of access to justice across all jurisdictions (criminal, civil and family alike), one is faced with a serious problem of public fatigue the likes of which can erode key elements of societal cohesion, trust and the “kiwi-way” of fairness and equality (if there was ever such a thing in the first place).

Lawyers and particularly litigators play a significant role in maintaining faith and engagement in the system of justice. What does not seem to be understood by parliamentarians is that a well-run and well-resourced legal infrastructure (aka an accessible regime of practitioners) actually helps the system along. It works to prevent and not create backlogs and generally ensures that the mechanical components of the system are well oiled.

As litigators you may be generally understood as the ambulance at the bottom of the cliff, whereas the truth is often the opposite. Dissuading clients from litigation, particularly in light of recent procedural changes in both the civil and criminal jurisdictions, is as much a part of your practice as is the filing and seeing through of litigation.

But not all problems are capable of a “legal fix” and on occasion some problems are made or exacerbated by the application of abstract legal principles. Enter Hurricane Carter stage left.

Rather than serving the notion of logic, the rational attainment of facts and a corresponding connection with some form of “truth”, the law can sometimes truly be an ass.

In such circumstances an unfolding injustice will not be capable of remedy by the law. For these cases there is no assurance in the existence of multiple layers of appeal courts, the confinement of problems to principles and the facilitation of argument around which the truth may be discovered.

In these cases the problem will often be with the base premise upon which the house of cards is built. The base problem may be with the quality of the science involved, the lack of training given to lawyers on how to deal with facts as opposed to abstract legal principles and ultimately the theory of cases from which the edifice of legal logic relies.

The system of appeal courts in a common law system is poorly equipped to deal with such foundational issues, with their ever decreasing authority to look at anything beyond narrow points of law – or facts only deemed important by a lawyer’s theory of the case.

So what of those cases that establish a far greater issue of fairness and justice than is possible to deal with through the application of the latest authority from the Supreme Court or Court of Appeal? Where to for those problems?

For many, they are already inexorably caught up in the litigation trap. The ball having started rolling it quickly becomes impossible to stop the hurried shuffle necessary to stay on top. This combined with the fact that most litigators are ill equipped, in my view, to recognise the frailties of junk science or shonky evidence that can result in a case built upon a foundation of sand – while “to a hammer everything that looks like a nail” some problems are more primal than legal and require non-legal skill sets.

In the context of criminal cases, I advocate for the need of a criminal cases review panel. The resolution of many cases needs more than the application of legal minds. The multi-disciplinary approach possible through the likes of a criminal cases review panel is our best bet to avoid those cases that will, in 50 years, still come to define our generation.

 

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

This article was first published in LawTalk 841, 9 May 2014, page 20.