FALSE GODS: CAN ONE HAVE FAITH IN JUDICIAL INSTITUTIONS TARNISHED BY FRAUDULENT EXPERT WITNESSES? JOSHUA ROZENBURG; LAW SOCIETY GAZETTE;

"In Britain, there may be an unjustifiably high level of confidence in the experts who give evidence in criminal trials. Bruce Houlder QC, the UK’s senior military prosecutor, told the Law Commission that there were still some charlatans around who held themselves out as experts in the fields of science or forensic accountancy — as well as others who were merely biased or incompetent.

And the government’s law reform advisers drew attention to notorious examples of fraudulent expert witnesses who had been found guilty by the courts.

They include Godwin Onubogu, a bogus medical doctor convicted in 1998; Barian Baluchi, a bogus psychiatrist convicted in 2005; and Gene Morrison, a bogus psychologist, convicted in 2007.

In a report published this week, the commission recommended a new admissibility test under which expert witnesses would not be allowed to give their opinions in court unless those opinions were warranted and ‘soundly based’.........

The commission offers examples of people who would not have been wrongly convicted if its recommendations had been in force.

They include Mark Dallagher, who was found guilty of murder in 1998 after an ‘expert’ had identified his ear-print on a window at the scene of the crime.

A retrial was ordered by the Court of Appeal because of doubts about the expert’s reliability and the case was dropped after DNA evidence had effectively established Dallagher’s innocence.

Other examples are Sally Clark and Angela Cannings, two mothers wrongly convicted of murdering their baby sons on the strength of questionable expert evidence."

JOSHUA ROZENBURG; THE LAW SOCIETY GAZETTE; (Wikipedia informs us that, "The Law Society Gazette (also known as the Gazette or the Law Gazette) is a British weekly trade magazine for solicitors in England and Wales published by the Law Society of England and Wales."

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"Why do we have such faith in judicial institutions that sometimes get things wrong?," Joshua Rozenburg's commentary published on March 24, 2011 in the Law Society Gazette begins," under the heading, "Having faith in judicial institutions."

"The question was posed last week by Stephen Breyer, a justice of the US Supreme Court, speaking in London at an event arranged by the Bingham Centre for the Rule of Law," the commentary continues.

"Breyer and three other judges dissented when Bush v Gore was decided a decade ago.

Although the question for the court was whether Florida had violated the federal constitution by ordering a state-wide recount following disputed ballots, the case effectively decided the 2000 presidential election in favour of Bush.

The majority had all been nominated by Republican presidents. What if one had voted the other way? That must be one of the great ‘what ifs’ of history: the Iraq war might never have happened and Tony Blair might still be prime minister with Lord Goldsmith as his attorney general.

But whether the court’s decision was right or wrong is not the issue that interests Breyer.

In his latest book, America’s Supreme Court: Making Democracy Work (OUP, £19.99), he writes: ‘Gore, the losing candidate, told his followers not to attack the legitimacy of the court’s decision.

And despite the great importance of the decision, the strong disagreement about its merits and the strong feelings about the court’s intervention, the public... followed the decision.’

It was not ever thus. In 1957, President Eisenhower needed to send federal troops to Little Rock, Arkansas, to enforce a Supreme Court order allowing black students to attend a school that had been reserved for whites under the city’s segregated education system.

Breyer is shrewd enough to realise that the public’s trust cannot be taken for granted.

The high level of popular confidence in the US Supreme Court is all the more remarkable when you consider the court’s sweeping powers of judicial review – which, in US terms, means the ability of its unelected judges to strike down legislation that the court finds unconstitutional.

The UK Supreme Court does not have similar powers, whatever David Cameron may think.

On the other hand, one of his ministers does have the power to block appointments to the court. The delay in announcing the names of those selected to fill current vacancies has prompted observers to conclude that Ken Clarke, the lord chancellor, has asked the Supreme Court’s selection commission to reconsider its choice – either because he has not seen enough evidence that one of those selected is suitable or because there is evidence that the chosen candidate is not the best person ‘on merit’.

In Britain, there may be an unjustifiably high level of confidence in the experts who give evidence in criminal trials. Bruce Houlder QC, the UK’s senior military prosecutor, told the Law Commission that there were still some charlatans around who held themselves out as experts in the fields of science or forensic accountancy — as well as others who were merely biased or incompetent.

And the government’s law reform advisers drew attention to notorious examples of fraudulent expert witnesses who had been found guilty by the courts.

They include Godwin Onubogu, a bogus medical doctor convicted in 1998; Barian Baluchi, a bogus psychiatrist convicted in 2005; and Gene Morrison, a bogus psychologist, convicted in 2007.

In a report published this week, the commission recommended a new admissibility test under which expert witnesses would not be allowed to give their opinions in court unless those opinions were warranted and ‘soundly based’.

Expert opinion evidence could be excluded if it was based on a hypothesis that had failed to stand up to scrutiny; if it was based on an unjustifiable assumption; if it was based on flawed data; if it relied on tests that were not properly carried out or were inappropriate; or if it relied on an inference that had not been properly reached.

Although these tests are contained in a draft bill, there seems no reason why courts should not apply them on a discretionary basis without waiting to see whether the law is changed.

Legislation would, however, be needed for the most interesting of the Law Commission’s recommendations – that a court should be allowed to appoint its own expert if it has to decide whether the evidence of another expert is sufficiently reliable to be admitted.

This would apply only to the Crown Court, and elaborate procedures are envisaged to ensure that the court appoints a person who has at least as much expertise as the expert whose know-how is to be examined.

The commission offers examples of people who would not have been wrongly convicted if its recommendations had been in force.

They include Mark Dallagher, who was found guilty of murder in 1998 after an ‘expert’ had identified his ear-print on a window at the scene of the crime.

A retrial was ordered by the Court of Appeal because of doubts about the expert’s reliability and the case was dropped after DNA evidence had effectively established Dallagher’s innocence.

Other examples are Sally Clark and Angela Cannings, two mothers wrongly convicted of murdering their baby sons on the strength of questionable expert evidence.

To return to my original question: why do we still have faith in judicial institutions? It is because the alternative is too dreadful.

Americans don’t want to believe that their system put the ‘wrong’ president in the White House just as British juries don’t want to see trials collapsing for lack of evidence.

We shall certainly see fewer convictions if the Law Commission’s recommendations are accepted. But at least we can hope that fewer of those convicted will be innocent."

The article can be found at:

http://www.lawgazette.co.uk/opinion/joshua-rozenberg/havinf-faith-judicial-institutions

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;