HOW, AND UNDER WHAT CONDITIONS, IS USING MODERN RULES IN OLD CASES "UNFAIR", JUDGE DOHERTY?

The remarks of Justice David Doherty in the Ontario Court of Appeal's review hearing of the Truscott conviction provide an excellent example of the aphenomenal model at work.

According to the description of a session of the review hearing, on Thursday, 1 February 2007, reported in The Globe and Mail, Judge Doherty said:

"If something is done in accordance with the accepted rules of the day, I don't understand how it can turn out to be unfair... Before 1896, an accused couldn't testify at his trial. Does that mean that we declare every trial before 1896 to be unfair?"

Judge Doherty made the remarks after hearing James Lockyer, a lawyer for Mr. Truscott, argue the appeal judge must be prepared to evaluate a vast amount of evidence that wasn't disclosed to Mr. Truscott's defence team at his 1959 trial or at a 1966 review of his case by the Supreme Court of Canada.

What Judge Doherty's remark betrays is the most serious limitation of the entire mindset of Anglo-American criminal justice. According to this mindset, the conduct of the investigation prepared before the summoning of the trial is secondary to the conduct of the trial.The other side of this coin is that the rules of trial procedure and their maintenance by the judge, the prosecution and the defence, are decisive. Any other notion of priority is slighted or dismissed. And why? Because, in practice, the manner in which any particular criminal investigation has been conducted becomes the subject of review only extremely infrequently. This lack of frequency is then itself assumed to prove the lack of a need for such review in general. From this people are expected to infer that full and proper use of trial procedure by all parties -- the prosecution, defence and the judge -- can generally make up for, or even overcome, malice or bias in the investigation. Of course, as lawyers and others in the justice system well know: "absence of evidence is not evidence of absence." Infrequent hauling on the carpet discloses nothing about how necessary it may be to call responsible officials to account.

There is nothing new in the police gathering evidence for a criminal prosecution without the details of the investigation being disclosed, before trial, to an accused and-or his/her defence counsel. For centuries, details of investigative procedure could be withheld even during trial. In the United States, beginning in the 19th century, it was illegal for the prosecution to withhold evidence from the defence before trial. (An exception was maintained for espionage, which has been broadened since 9-11 to include "terrorism" interpreted as a suspicion without the standard of "reasonable and probable grounds" of ordinary criminal jurisprudence.) However, even in ordinary criminal jurisprudence, this was frequently manipulated to mean: "before introduction of the evidence during trial". Thus could surprises still be sprung on an accused after the trial had begun and the defence prepared along definite lines and assumptions about the state of the prosecution's case.

In Anglo-American criminal jurisdictions, the most important feature of criminal investigations is the large discretionary power prosecutors enjoy in their dealings with the investigative arm. Prosecutors could either shut down, or instigate, police pursuit of certain lines of investigation. The use of this power may be reviewable after the success or failure of the appeal of a criminal conviction. The key thing, however, was (and remains to date) that the use of this power could not be examined during or as part of the original trial itself.

This problem of the criminal justice system, and its unique potential to unleash great mischief and supreme injustice in stripping people of their liberty, is discussed far less than the problems of plea-bargaining and plea-bargaining strategies of prosecutors and defence counsels. It remains the key, however, both to why the judge in the Truscott case did so little to protect the accused from prosecutorial misconduct or assist his defence counsel to protect him from it during and at trial, and to why he persisted in obstructing efforts proposed independently and outside of the appeals court to review any aspect of the case including the police investigation.

In Anglo-American systems of criminal jurisprudence, the presumption of innocence of an accused, combined with the strictly-maintained barriers between the prosecution and the defence counsel of an accused, serve to insulate the investigative process from scrutiny. In criminal jurisprudence developed in other jurisdictions, based on the model of France, there is no presumption of the innocence of an accused. As a consequence, no rules have been developed that are based on an adversarial arrangement between the prosecution and the accused. Investigation is the responsibility of an examining magistrate, i.e., a member of the judiciary. Any suspected police misconduct is reviewable by a special administrative body of the judiciary empowered to sanction investigatory misconduct.

In general, on the other hand, as part of the adversarial principle of this system of criminal jurisprudence, the onus is on the prosecution to prove guilt beyond a reasonable doubt. Within this arrangement and on this basis, it was long accepted that the prosecutorial arm had no particular duty of care to exercise in relation to the ability of an accused to conduct an adequate defence. In the adversarial system, the judge in the case carried this responsibility. However, the judge also lacked any power to order, conduct or direct the investigation. Thus, while charged with a duty of care for the rights of an accused under a system that assumes innocence until proven guilty, the judge lacked any access to the institutions or individuals bringing the prosecution's case. Such a duty of care can obviously only be exercised formally, with regard only to details of procedure, not to any of the substance of the intentions informing the Crown's choices as to how to proceed.

The discretionary power of the prosecuting arm of the criminal justice system is defended in our own day from two directions. It is said to be either something flowing naturally from the adversarial principle, or something that aids in the maintenance of the most efficient functioning of judicial services. In fact, however, this discretionary power is part and parcel of the Royal Prerogative of the State, based on the notion of the Divine Right of Kings. This prerogative, which asserts that the Sovereign is always right, stands in stark opposition to securing a just result or uncovering and correcting an earlier unjust result. (For centuries, it was high treason punishable by execution even to think let alone whisper that the Sovereign could be wrong.)

The prerogative character inherent in the exercise of prosecutorial discretion has consequences. For example, apart from the penalties attaching to perjury, there is almost no systematic way to uncover any order by the prosecution to the police to deep-six certain incriminating evidence and-or the methods by which, and sources from whom, it was obtained.

How the prosecution assembled its case against Truscott exposes the great dangers inherent in such discretion. It dribbled out into the public prints over the decades following his conviction that police at the time had collected evidence suggesting possible involvement in the victim's murder of a disturbed individual serving in the Canadian armed forces. This man was potentially implicated in other contemporaneous but still unsolved rape-murders. (He died while Truscott was in jail. This strengthened the later argument that a review of the original investigation was moot, since Truscott's appeals were exhausted and a new trial could not be held to prosecute a dead man.) At the time of this particular murder, a case could be assembled and despatched more quickly against a juvenile acquainted with the victim and known to be one of the last people to see her alive. Accordingly, the Crown proceeded against Stephen Truscott. The discretion exercised by the police and the Crown prosecutor in so proceeding still awaits comprehensive investigation and exposure.

Truscott was convicted in 1959 as a 14-year old and sentenced to the gallows. However, his sentence was commuted after Canada abolished the death penalty. He was released after serving two-thirds of a life sentence. The judgment in the case was controversial almost as soon as it was rendered. In the wake of popular reception of a book about the case by journalist Isabel LeBourdais which questioned the entire conduct of the prosecution, the presiding judge in the Truscott case became incensed enough to write the Prime Minister of Canada demanding she be charged with bringing the administration of justice into contempt. This demonstrates how the concern of the presiding judge to protect the reputation of the conduct of all in his court -- including himself-- could operate to reinforce pressures from elsewhere in the system against any kind of judicial review of the original investigation.

The strong premonition of an unjust result in a particular case arises from two circumstances. First, there is the continued assertion of the innocence of the convicted person. Sometimes this may become combined -- as in the Truscott review -- with a reasonable reconstruction of how an unjust result could have been produced despite, and to some extent because, of the fact that both sides in a particular criminal case, tried under the adversarial norms, followed the rules more-or-less. The key to uncovering possible pathways to an unjust result in the Truscott case was to apply retrospectively certain investigative and procedural standards developed since 1959 to those aspects of the case where such standards did not yet apply.

The resistance to such retrospection brings us back finally to the true and deeper significance of Judge Doherty's outburst. Clearly, wherever this exercise may lead in any particular case has validity for that case and possibly certain other cases whose outcome turned on certain procedures not being available to, let alone insisted upon, by the defence. However, from this it does not follow that the judgment rendered in every every trial completed before certain rules of investigative as well as trial procedure changed must fall under a cloud. It does suggest that, if certain cases were re-examined by applying such a retrospective analysis, much light might be thrown on the actual pathways to the final result.

This is exactly the process we have been proposing as the only way to defeat and undo the noxious consequences of the aphenomenal model everywhere -- throughout the physical, natural and biological sciences and their engineering applications, as well as throughout the social sciences. What was assumed to be true at "Knowledge-state(time=yesterday)" of our knowledge can hardly be assumed still to be true in the same way, if at all, after our knowledge has moved on to "Knowledge-state(time=today)".

What could be the source(s) of the pressure against such retrospection, reflected in Justice Doherty's outburst?

One possibility is that material considerations, tied to the short-term self-interest of various individuals and their institutional bodies, are deeply vested in resisting the updating of the fairness and transparency of rules of procedure or the widening of their application outside already defined boundaries. As we have noted in many other examples, this investment in the status-quo appears to be the guarantor of the Aphenomenal Model. Without such a guarantee, the model would collapse of its own self-evidently top-heavy instability, an instability well illustrated by our graphical representation of it as an inverted triangle.