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PELL WALKS FREE

By Pete Moore On April 7th, 2020

Cardinal George Pell has said he “holds no ill will” towards his accuser after Australia’s highest court overturned his conviction for child sexual abuse.

The former Vatican treasurer, 78, was the most senior Catholic figure ever jailed for such crimes.

In 2018, a jury found he abused two boys in Melbourne in the 1990s […]

The court’s seven judges ruled unanimously in Cardinal Pell’s favour, and said in their verdict that other testimonies had introduced “a reasonable possibility that the offending had not taken place”.

Cardinal Pell has since been released from jail – 400 days into his initial six-year sentence – and cannot be retried on the charges.

Ok.

But if a panel of judges can overturn a jury verdict simply because they think that the jury got it wrong, why bother with trial by jury?

36 Responses to “PELL WALKS FREE”

  1. This isn’t a case of the court overturning a verdict because they feel the jury got it wrong. This is a court overturning a verdict from a jury that, for whatever reasons, refused to do their duty in the case. They wanted to convict Pell and so they did, whether or not he merited conviction.

  2. So why bother with trial by jury?

    Going the other way, nullification by jury – citizens refusing to convict the accused, even if they think he’s guilty, because they view the law as unjust – is a great and glorious thing. The argument then is that a panel of judges should overturn that which would be horrible.

  3. Seamus

    How do you know the motivation of the jury and whether or not they took their duty seriously ?

  4. It appears from my brief reading that the appellate court found a jury erroras a matter of law. In the US a jury verdict can actually be overturned by a trial judge if it is against the weight of the evidence. The charges against Pell that I recall seemed very weak.

  5. “So why bother with trial by jury?”

    Because ordinarily a jury will carry out their duty properly. However, given the hysteria surrounding this case, the jury were unable to carry out their duty properly.

    “Going the other way, nullification by jury – citizens refusing to convict the accused, even if they think he’s guilty, because they view the law as unjust – is a great and glorious thing. The argument then is that a panel of judges should overturn that which would be horrible.”

    All systems in criminal law should be set up to the benefit of the accused – they are the ones with the liberty at risk. So, in my opinion, it would be wrong for a court to allow a flawed jury conviction to go ahead. It would not be wrong, in my opinion, for them to allow a flawed acquittal to go ahead.

    “How do you know the motivation of the jury and whether or not they took their duty seriously ?”

    The court have been clear in that – unanimously I might add. If the jury had considered the entire evidence presented to them, especially those defence witnesses that the prosecution didn’t even try to contradict, then they could not rationally conclude that there was no reasonable doubt.

  6. I was of the opinion he was guilty when the conviction happened. But it appears that the evidence was insufficient. It is a reminder to myself that the terrible crime of child abuse often colors our view of the accused, and that I’m not exempt from it.

  7. This shows the importance of due process in the era of #metoo and imbeciles on twitter declaring they “know” people are guilty based on their own prejudices.

  8. I am not a fan of any jury of ordinary citizens system.

    Or of any other system.

    Which is why you can never be in favor of the death penalty.

    Juries get it wrong, cops get it wrong, humans are not infallible.

  9. I’ve found juries tend to get it right, but no system is infallible. Imagine if those who called for execution or castration in these situations had gotten their way.

  10. Yes

    The more you think of the death penalty, the less defensible it is.

    Not because murderers or child abusers shouldn’t be hanged either.

    But because there are so many examples of juries and cops etc getting it wrong

  11. Agreed.

  12. it doesn’t mean he didn’t do it , just insufficient evidence beyond reasonable doubt
    but that does mean legally he’s innocent, as if we respect that law
    he’s been found not guilty and in the laws eyes we can’t say he did it
    but he might still have done it

    is that a correct thing to write or have i mispoke ?

  13. Kurt – you are right.

  14. Pete can’t be in favor of the death penalty.

    On this very thread, he praises juries who intentionally give bad verdicts out of personal opinion.

    Similar prejudiced or emotion driven juries could wrongly condemn the innocent. Unless we can say that has never happened, right?

  15. // he’s been found not guilty and in the laws eyes we can’t say he did it//

    Can we not say OJ did it?

    //– they are the ones with the liberty at risk. So, in my opinion, it would be wrong for a court to allow a flawed jury conviction to go ahead. It would not be wrong, in my opinion, for them to allow a flawed acquittal to go ahead.//

    But he isn’t the only one at risk of losing liberty. If he’s wrongfully acquitted, members of the public are at risk of losing their liberty to live.

    Courts from Alaska to Australia continually provide additional evidence that jury trials are a farce – too many uneducated and prejudiced people leading to too many innocent found guilty and too many guilty acquitted.

  16. Trials by Judges alone have no stellar infallible record. A jury of one’s peers is a significant legal right that has evolved over centuries.

  17. //Trials by Judges alone have no stellar infallible record//

    Nobody ever said they have, but I’d wager – going on the stories you hear from the US and UK – that their record is much better than systems where decisions are made by “one’s peers”, who are all too often stupid, prejudiced and excitable.

    If I were innocent of the charge, I’d far rather face a panel of informed and objective experts. On the other hand, if I were guilty I’d rather face a jury.

  18. Having read up on this, it looks decidedly dodgy to me.
    For starters I would put my trust in a jury, more than a single judge or judges. Logically, one person is more likely to make the wrong decision, and be prone to bias than 12. Also, the evidence against the cardinal does not seem trivial or sketchy. It was however, the evidence of one man against another, (if you exclude the father of one of the other boys who died.) However, I do accept the a healthy functioning legal system, any doubt must result in a not guilty verdict.
    It seems the father of one of the boys is trying to take this matter to civil court.

    https://www.theguardian.com/australia-news/2020/apr/08/civil-claims-expected-against-cardinal-george-pell-and-catholic-church-despite-acquittal

  19. “Having read up on this, it looks decidedly dodgy to me”

    I agree that the evidence against the cardinal was not trivial or sketchy. It was however only complainant testimony. Now that testimony was persuasive. However the prosecution in no way shape or form challenged the defence’s also persuasive testimony, around the lack of an available timeframe for the abuse (that Cardinal Pell was not present, alone, in the sacristy, to be able to molest the boys). And as you say Dave the doubt should result in a not guilty verdict. The jury didn’t do that. There was reasonable doubt in this case, though as Kurt notes that does not mean that he didn’t do it – just that it wasn’t proven beyond any reasonable doubts. The most likely scenario is that the jury ignored any reasonable doubts because they wanted to convict Cardinal Pell because of his appalling track record on covering up abuse.

    A civil trial would be quite interesting, as the standard of proof is lower. The old adage goes that in a criminal trial if you are 99% certain that someone committed the crime then find in favour of the defendant. In a civil trial if you are 51% certain that someone committed the crime then you find against the defendant.

    I think the complainant’s compelling testimony about what happened is persuasive, but that Pell’s evidence of a lack of timeframe for the crime is also persuasive. In a criminal trial that should always result in an acquittal. It isn’t a question of who is more persuasive. If both are persuasive then the benefit of the doubt should lie with the defendant.

    In a civil trial it is a case of who is more persuasive.

    “But he isn’t the only one at risk of losing liberty”

    Metaphorically sure. But in actual terms he is. If a person abuses another person and that victim suffers lifelong consequences then that is a criminal offence. It is also stated by society to be illegal. And if that is proven, beyond any reasonable doubt, then the perpetrator of that will be convicted. However, that doesn’t apply in convictions of innocent people. The jury don’t go to prison. The judge doesn’t go to prison. The prosecutor doesn’t go to prison. The state doesn’t go to prison. They can destroy a man with no consequence in law. So before they do let’s make sure that the person being destroyed deserved it.

  20. Seamus, you’re talking of people being wrongfully convicted.
    I was talking of people being wrongfully acquitted.

  21. Seamus.

    Good post.

  22. // Logically, one person is more likely to make the wrong decision, and be prone to bias than 12. //

    Dave, it isn’t a question of numbers. It’s a question of trained professionals on the one hand and the average Daily Mail reader on the other.

    If what you say – that a jury is less prone to bias – were true, then systems using panels of judges would obviously have a worse record in making wrong judgements than jury systems.

    But they don’t.

  23. Dave, it isn’t a question of numbers. It’s a question of trained professionals on the one hand and the average Daily Mail reader on the other.

    You’re committing to fallacies here Noel, argument from authority, and an ad hominem attack.

    If what you say – that a jury is less prone to bias – were true, then systems using panels of judges would obviously have a worse record in making wrong judgements than jury systems.

    But they don’t.

    I’m not saying you’re wrong Noel, but I’d need to see evidence that judges have a similar record on things like wrongful convictions to jurys.
    And if that’s true, then why do we bother with having a jury?

  24. what do others here think about the idea of having professional juries. Not legal experts just ordinary citizens who sit on juries as an occupation. Would that minimise the naivete inexperience and prejudices of random single case juries ?

  25. an “expert” jury on permanent payroll….. no way

    It would actually accentuate bias and prejudices. After hearing 10 of the same type of cases permanent biases would be formed by them and the person being judged would not only have to present their argument for their own individual circumstances, but also a defense or prosecution against of or in favor of how the “expert” jury has previously ruled.

  26. I guess we have to accept there is no flawless system of assuring the fairest and most accurate method deciding criminal cases but on balance I do think the traditional jury method is the safest.

  27. Judges verdicts result in more aquittals than jury verdicts. And judges are way more aligned with the State. I’m not aware of any definitive study that judges err less than juries. In fact most appeals are based on judicial error.

  28. Colm,

    what do others here think about the idea of having professional juries. Not legal experts just ordinary citizens who sit on juries as an occupation. Would that minimise the naivete inexperience and prejudices of random single case juries

    Personally I think this would be a bad idea. Wouldn’t having people hearing the similar cases over and over again strengthen their prejudices and biases?
    That’s why I believe that juries are better than judges. Experience is not an advantage in this situation. You have to come to these trials with an open mind.

  29. In the US, it is very common for anyone with any sort of career to try to avoid jury service.

    Many jurors take their responsibilities seriously, but some don’t, some are not nearly intelligent enough to understand the issues at all.

    Some inflamed juries convict innocent people ( child murder case that I mentioned ) , some idiot juries acquit the guilty ( hi Pete )

    I have the most difficult time imagining that the US system is the best. It would take study of world systems to begin to offer a qualified opinion, and I haven’t done that.

  30. I sat on a jury once and I was fairly shocked at the different levels of biases and indifferences amongst my fellow jury members. I admit I even went along with the bias. We ended up acquitting the accused (who was almost certainly guilty of stealing some cash from the till in the bar where he worked) largely because we sympathised with him , and the ‘victim’ his boss was an absolutely arrogant and unlikeable witness. We didnt strictly do our legal duty, we were dominated by our human emotions.

  31. Believe me some people from all walks of life try to avoid jury duty.

  32. France has professional jurors.

    It is an interesting concept, but I don’t know how it works in practice.

    Ideally, they would not be aligned with the state / prosecutors and would be immune from defense attorney hijinks and shenanigans

  33. I enjoyed doing Jury duty even if we did fall short of legalistic purity. I would happily do it again. Its a break from the normal routine at least !

  34. //You’re committing to fallacies here Noel, argument from authority, and an ad hominem attack. //

    I don’t understand, Dave. How am I arguing from authority? I didn’t cite any opinion.

    Also, where’s the ad hominem? (unless you’re a secret Daily Mail reader 🙂 )

    But I’ve just realised you may have misunderstood my comment. I meant, facetiously perhaps, that it’s a question of having a panel of trained professionals (the judges) versus a group of 12 Daily Mail readers (the jury).

    The only person I can thinking of was my own dear mother, who served on a jury and – you can take my word for it – was completely unfit for the task both mentally and emotionally. As it happened, the feeling in the jury at the end was that the accused was innocent; sure wasn’t he a ringer for Daniel O’Donnell. But when the judge noticed this he addressed the lot of them and told them in no uncertain terms that the man was clearly guilty as sin. Sort of defeats the whole purpose of the exercise.

    // We ended up acquitting the accused (who was almost certainly guilty of stealing//

    Like I said.

    Here, in the Rhineland, verdicts in criminal cases are made by panels of judges after an inspection of the evidence that takes place at various levels, each of which is subject to appeal. The position of judge is a profession; lawyers with years of experience in defence and prosecution and extra qualifications etc. They are then appointed by the Higher Regional Court. Sometimes a lay “judge” is also present.

    The media are just as vigillant here as anywhere else. It’s possible of course that some cases are not reported, but I have never heard of cases of wrong judgements in NL, D, DK of the kind you hear about practically daily from jury courts. Trials are also generally humdrum affairs, none of the theatrics you see in recordings of American courts.

  35. France has professional jurors.

    F the French…..

  36. Some of the most common judicial horror stories, not so much of major miscarriages of justice where people go to prison for decades for a crime they didn’t commit, but more routine, railroading of people through the system, happen not in jury-led crown courts but in juryless judge-led (if we are calling these people judges) magistrate courts. Now a certain amount of that is that magistrates do not have to be legally qualified (in fact the government almost celebrate it as a benefit of the system). But putting all your eggs in one flawed basket is a recipe for disaster.

    Ultimately the key to any system is checks and balances. No one system, or part of the system, should be the sole arbiter of outcome. Ideally the jury should be trusted. The judge should be trusted. The prosecution and the defence barristers should be trusted. But recognise that they are not infallible and have systems of checks on them so that people can appeal incorrect decisions.