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Evan Whitton
29 March, 2010  
Whitton at large

Evan Whitton picks-up some literary pointers in Canberra … He sees Alice in Wonderland, which triggers thoughts of the legal profession … Rule against similar facts and the enriching qualities of anti-truth devices … Cartoon of the year … Sotomayor and Posner told to “wise-up” ... Sam Johnson would be appalled by the AIJA


Litry notes. Or, worse is better

imageTo the city of dead souls, live rose gardens, Old Parliament House, and the revelation therein that Menzies, war criminal, and Curtin, war hero, swapped thrillers.

And why not? Ray Chandler (seen here) noted in The Simple Art of Murder (Atlantic Monthly, December 1944):

“All men must escape at times from the deadly rhythm of their private thoughts … all reading for pleasure is escape, whether it be Greek, mathematics, astronomy, Benedetto Croce, or The Diary of the Forgotten Man.”

Curtin and Menzies probably read Agatha Christie. She could barely write her own name, and her plots are ridiculous, but her books sold millions.

The trouble is that all thrillers, including Chandler’s, fail the Thomas Tests (from Ross Thomas’s 1987 masterpiece, Out on the Rim) in one or more repsects: wit, pace, economy of description, short vivid scenes, sharp dialogue, a minimum of internal monologue, and “a stunning array of characters; a plot that never stops”.

Out on the Rim is about 115,000 words. Airport thrillers need to be at least 200,000, and so must disprove Oscar Wilde’s assertion: “It is a very sad thing that nowadays there is so little useless information.”

Hence the longueurs in, for example, John Le Carre’s spook stuff and the thriller du jour, The Girl with the Dragon Tattoo, by the late Swede reptile, Stieg Larsson.

In the latter, nothing happens for 200 pages and then it just gets silly, but tourist operators will be happy; one message:

“Where the freaking hell are ya? Swedish boys and girls rut like stoats.”

Fillum notes. Or, worse is better.

imageThe barely recognisable Alice in Wonderland, like the legal system of the same persuasion, is getting the money in, but didn’t have to be as bad as it is.

Mr Johnny Depp was always going to have to carry the film, but he could have been a guide to a much younger Alice in a truer version of Alice and Through the Looking Glass, and such delights as Humpty and the tart-theft trial retained.

One rule of evidence down? Five to go

Our sainted proprietor wrote in the SMH on March 12:

“If [SA Premier Mick] Rann really wants juries to have all the facts, he would replace all the rules of evidence with just one: if it’s relevant it goes in.”

As a person working as a servant, I hope to be forgiven for agreeing (grovel, grovel) with my esteemed master, and for further currying favour by taking a peek at stuff law schools wisely do not burden delicate students with: the origins of the six rules which conceal evidence.

Germane to the inquiry are:

* Russell Fox’s definitions: justice means fairness; fairness to all and morality require a search for the truth; truth means reality.

* The British system is the only system in the world which conceals evidence and hence truth.

At best, the rules are the product of amazing coincidences.

Coincidence 1. For obvious reasons, lawyers are kept on a tight leash in a truth-seeking system. England rejected such a system in 1219, but had only four anti-truth mechanisms for six centuries.

Coincidence 2. Unleashed British lawyers did not bother to defend criminals until the 18th century, and not in numbers until 1790. It is only since then that the rules of evidence have been invented, along with another 14 anti-truth devices.

Coincidence 3. The 24 anti-truth devices enrich lawyers by making it quite easy to keep wealthy criminals out of prison.

Mick Rann has bipartisan support for abolishing, in serious cases, the rule against “similar facts”, i.e. a pattern of criminal behaviour.

The rule, fourth of the six, was concocted by Lord (Farrer) Herschell in Makin v Attorney-General of NSW (1894).

Russell Fox says an understanding of facts depends heavily on context. The anti-pattern rule makes lawyers falsely imply that repeat offenders are first offenders, and deprives jurors of relevant context about serial rapists and other organised criminals.

The rule thus offends justice, but not Justices.

For 25 years, Australian law enforcement experts have sought an exception similar to the US RICO (racketeer-influenced and corruption organisations) legislation, but politicians (and judges) have hitherto remained adamantly soft on organised crime.

If this unjust rule goes, can the rest be far behind?

Cartoon of the year

imageThe origin of this cartoon floating round the internet for some months seems to be unknown.

The little kid with his teddy bear and his old man know that organised crime is systematic criminal activity for money or power.

The cartoon seems to invite list-making. A few obvious standouts:

Government: The CIA section devoted to torture, heroin, assassination, and regime-change, and the Presidents who authorised their crimes.

Private sector: Wall Street; Dickie Pratt, cardboard box cartelist (and philanderer).

Wise-up, Soto!

imageSonia Sotomayor, 55 (pic), is the newest Humpty on the US Supreme Court.

That seriously dubious body finds stuff in the Constitution that is not there.

Lauren Collins reported (The New Yorker, January 10) that several of Soto’s former clerks mentioned, “her reverence for the judicial process and her faith that, if it is administered meticulously, it will achieve the correct result”.

Soto needs wising-up; the 24 anti-truth devices ARE the process.

Wise-up, Dickie!

Also in the Jan 10 New Yorker, John Cassidy noted:

“In his 1973 treatise, Economic Analysis of the Law, [Dickie Posner] applied the maxims of free-market economics to the courtroom, arguing that enforcing economic efficiency ought to be primary goal of judges.”

Posner, a judge since 1981, apparently is not yet aware that a truth-seeking system is more efficient than ours, e.g. English libel reform urgers say the average cost of a libel trial in London is 100 times that of a libel trial in Europe.

Sam Johnson’s timely reminder

The Australasian Institute of Judicial Administration is a splendid body of troops dedicated to that desperate task: wising-up judges and lawyers.

imageLast year, the institute, run out of Monash law school, invited papers for a conference on adversarial and non-adversarial systems of justice in May.

In a rare spasm of perceived public duty, your correspondent offered a paper, and was accepted by Professor Arie Freiberg (pic), dean of the law school, but sadly I failed to read the fine print.

Apart from a select few, the AIJA requires paper-givers to pay $800 plus expenses. Hence the following:

Dear Arie,

The [AIJA] has asked me to pay some $1,300 for the privilege of writing and delivering a paper on the origins of adversarial and non-adversarial justice.

I believe the paper would give the Institute’s 1,000 judges and lawyers important information of which I suspect they now know little or nothing.

That is, the origins of the systems demonstrate that adversarial justice is necessarily an oxymoron, and that non-adversarial justice is not.

I have never subscribed to Dr Johnson’s dictum that no man but a blockhead ever wrote, except for money, but I would dread the scorn of his shade if I were to actually pay money to write.

I must therefore regretfully beg leave to withdraw.

With warmest regards and every good wish for the success of the conference …