I’m surprised you’re not quoting from today’s Herald on Sunday editorial:

“Dame Sian, who had a distinguished legal career behind her before Simon Power left primary school, has every right to express her thoughts on the matter. And we have every right to expect that our lawmakers read and closely consider what she has to say rather than rule her evidence inadmissible.”

I couldn’t have put it better myself. Power has come out of this looking like a clown. Someone should remind him that he has two ears and one mouth: that’s because listening is more important than talking.

Now of course the devil is in the detail, which on closer examination turns out to be the socialist extremist Greens’ agenda of destabilising the traditional family model that has served us so well in the past and reinventing hippyism and every other itch scratcher you can think of (and a good many more you can’t). Think Sue Bradford’s shrill proclamations that the United Nation’s Rights of the Child conventions have precedence over generationally developed parental wisdom and and you are halfway there.

John Tamihere says “we know who these people are in the maternity ward” so why are we consistently advocating ambulance at the bottom of the cliff approaches, everyone knows the predictors of dysfunction and crime are consistently linked with the breakdown of families in society.

My mistake…

Let’s have a look at what you say:

“What about defence lawyers confusing the hell out of an ignorant jury with science or loopy/extraneous “evidence””

Any expert evidence must be given by a witness that the Court accepts, based on the legislated criteria, is an expert in the field they are giving evidence about. They must be impartial, as well. There is no such thing as a ‘defence’ expert or a ‘crown’ expert, like we might see in crime dramas. They are simply experts and might be giving evidence for the defence in one trial and the crown in the next.

To be admissible all evidence must be relevant to the case. There is no chance for any ‘extraneous’ evidence being admitted unless the judge thinks it is in fact relevant to the case. For the most part, most ‘extraneous’ evidence is presented by the Crown and usually opposed by the defence. I don’t know what ‘loopy’ evidence is so I won’t address that.

Anyway, Prosecutors are just as willing to confuse the hell out of an ‘ignorant’ jury. They just get applauded when they do so.

“guaranteed to make the pious brickheaded foreman convinced that the murdered person shot himself and buried his own body in the swamp’

The foreperson (the newly legislated term) is one of 12, of whom 11 must now agree for a verdict. Other than acting as a chairperson for the discussion, they have no other extra legal weight.

“To me. this is a filthy job, but I suppose that someone has to do it. ”

Yes, it is a difficult and much condemned occupation. But is also hugely enjoyable and rewarding in its own way, if not as financially rewarding as we might like. It is also an important occupation, because without it the people have no protection from the coercive power of the state. Just imagine for a moment if you were wrongly accused of a crime, locked up in custody pending trial and you didn’t have a defence lawyer? What would you do? Appeal to the better nature of the police, who charged you and will do what takes to keep you in prison? I assure you, it is very difficult to organise your own defence while you are in custody.

But while you are imagining that, just pretend that you don’t have a lawyer, because defence lawyers no longer exist due to society’s condemnation of them and the understandable unwillingness of the legal profession to continue doing such an unpopular job. The Crown has lawyers, though, because prosecutors of course are always praised and respected. So you have to defend yourself against the full might and unlimited resources of the state all by yourself. But in Court the Judge expects you to know the proper rules and procedures, even though you have never been there before, because ignorance of the law is no excuse…

Might it be then that you started wishing you had a defence lawyer to assist you?

Actually, here is a question: during the Nazi era trials during the 1930s and 1940s, where the judges and the prosecutors were all Nazi party members and were willing to do anything to meet the Party’s expectation as to outcome, were the defence lawyers then also doing a filthy job? Seeing as how many of their clients were actually innocent yet were facing the death penalty?

Or what about David Dougherty’s defence lawyer? After all, he was completely innocent and the police and the prosecution had it completely wrong. Was Dougherty’s defence lawyer also doing a filthy job?

Go read the book Actual Innocence, about the Innocence Project in the States and you will see why defence lawyers are actually vital to a democratic society.

What you see in the news is merely a snapshot, and a murky one at best.

You can hear the discussion at the following link. The only problem is Franks won’t be able to hear you cheering.

http://www.radionz.co.nz/__data/assets/audio_item/0003/2007651/ntn-20090717-0908-Chief_Justice_Dame_Sian_Elias_suggests_early_release_amnesty-m048.asx

The Chief Justice may have pushed the boundaries of propriety slightly by expressing a view, but it was a fair and considered set of observations. She deserves a lot more respect from a newbie Minister who has yet to make a name for himself.

Whether or not Elias crossed a boundary, she is still the Chief Justice. Elias 9, Power 1.

“If the Minister of Justice and government think that judges’ singular role is to apply the law enacted by Parliament and they should not contribute to the debate on appropriate penal policy and the criminal justice system, why then did the government invite 6 judges (Judge Becroft, Judge Bidois, Judge Carruthers, Judge Clark, Judge Johnson, Judge Rota) to participate in the government’s “Drivers of Crime” ministerial summit?”

Yeah, what would the Chief Justice of the High Court of New Zealand know? Why should we defer to her opinons, informed as they have been by years of learning and experience?

I much prefer the uneducated opinion of the truck driver who I talked at my kids soccer match last week. He knew a thing or two about criminal justice.

we do this because too many people commit cirmes.

the reason is for the last 40 years NZ has lacked good governance.

We have had a succession of weak politicans civil servants judicary and police all undermining the good work of good parents trying to raise their children to be good citizens

We have an endless stream of so called liberals like CJ Elias Clark Cullen et al all of them sabotaging good parenting and good family values morals and ethics.

So why are some of us not surprised we are where we are.

Im not. The writings been on the wall for me since I was a young adult 35 years ago

We have a pandering to the lowest common denominator a lack of guts from our leaders to stand up for what is right moral and ethical

the soft cocks like Elias etc are the cause of the problem

Until they are removed and replaced with ethical moral and decent human beings the problems will continue

the thing about Ablett-Kerr and King is that they are obliged to do their best under the Rules of Conduct and Client Care. We defence lawyers are obliged to do our best for the client according to our instructions. But your point re Potter stopping the trial raises a real point: The Crown often chooses to proceed with more serious charges despite having a guilty plea offered. In this case Weatherston has already pleaded to manslaughter and the Crown could have accepted that but they chose to proceed with the trial to try for a murder conviction. I was in a similar case a couple of years ago and we actually won the manslaughter conviction that we offered. The trial became a waste of time but nobody criticised the Crown for being bloody minded about the matter. Don’t forget that in this case the Crown is also in close consultation with the Police.

Good point re dope. In fact, the use of drugs is the other common factor in my clients. I almost jumped in with my experiences on another thread on Kiwiblog that got to talking about drug use, but decided not to. I find there are the two types of drug users that I deal with: the hard out junkies who are responsible for a lot of the property crime in our country, and the dope users who just can’t find it in themselves to turn up to court, or community work, or whatever, and end up going to prison because they just don’t comply with the rules out of sheer drug-induced apathy. Either way, I don’t think that currently illicit drugs should be legalised at all. But that is for another topic.

For your information, below is the primary rule for defence lawyers out of the Rules of Conduct and Client Care (stupid name, but that is what Law Society wanted to call them..). Anyway, note the use of the word ‘must’:

A defence lawyer must protect his or her client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must— (a) put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion of the lawyer as to his or her client’s guilt or innocence; and (b) put before the court any proper defence in accordance with his or her client’s instructions— but must not mislead the court in any way.

Bleeding hearts the lot of you.

But in the workplace; on the sports field and over a beer the great unwashed shake their heads in wonderment of a member of the judiciary so far out of wack with public opinion.

But of course in ‘her’ lexicon she is only doing her duty in telling us how we should think.

Some might dare to think that it a tad arrogant.

Probably a good sign.

So the question is this: How have we come to a state of affairs where every expert involved in criminal justice from the lofty heights of the Chief Justice to lowly Prison Guards, from University Academics to thoughtful Police Officers say the current more and more punitive system isn’t working, costs a fortune and worse seems to contribute crime more than it prevents, and where politicians of all parties in private admit these experts are right, yet everyone is to afraid to do anything about it?

How can it be that what we KNOW to be true is impossible to implement because we too afraid of demagogues and rabble rousers? It is an abject moral, intellectual and political failure of the highest order.

Who makes policy in this country, the wannabe Rush Limbaugh’s of talkback land and the ill-informed lunatics of the Sensible Sentencing Trust, or our elected representatives as guided by the best experts in the field of criminal justice?

I agree with a number of Rex’s ideas, but the idea of reduced sentences for white collar criminal really annoys the hell out of me, if anything I’d increase them, certainly whilst the concept of a minimum wage with the rest to justice is noble, it’s about as practical as thinking Labour can manage an economy for more than 3 years in power, personally I’d rather take a hiding than have someone take my life’s savings & I think criminals who indulge in such behaviour deserve sentences equivalent to manslaughter to reflect the heartache they cause, not to mention they have the intelligence/belligerence to avoid a punitive financial consequence like Rex suggested.

The only single logical reason for really long sentences I have ever heard was the ability to breakup organised crime, as I understand it the NY mafia sang like choir girls when faced with 40-50 years inside. But surely to overload our ( and US ) prisons when the only valid reason is to break up organised crime is taking the easy way out with regards fighting that crime & having a massive social impact.

Last thought, prisons should be renamed criminal educational & recruitment facilities, because they are very effective at that & until the recidivism rates come down keeping a higher proportion of offenders in jail is really just doing an injustice to society & the criminals we are trying to stop reoffending.

P.S. What was Power thinking, my guess is I am a Minister now & how dare someone come up with a more reasoned intelligent/logical arguement than MY department, that person must be put down before any such behaviour continues & I must prove I am boss, no consideration to how much of a chest puffing fool I’ll look.

I am so glad that we agree on something other than animal rights.

It is refreshing that you support the state intervening in dysfunctional families, it is fantastic that you believe that the state should be able to go into the homes of the Kahui’s, Whittakers, Whakaruru’s and remove the children permanently.

I am also heartened that you support the idea of forced sterilisation so the parents of these poor kids do not have the chance to breed any more victims.

http://www.stuff.co.nz/national/politics/2601308/Call-for-chief-justice-to-resign

Elias makes a number of very valid points. She reminds people that the Sentencing Act requires courts to keep offenders in the community “as far as that is practicable and consonant with the safety of the community”. So it seems the Chief Justice is actually saying to the government, we ought to be trying harder to keep offenders in the community. That is consistent with current law, so it’s clear that Elias is doing her job. Indeed, it could be argued that if Simon Power does not want offenders kept in the community, he might wish to amend the Sentencing Act. Far better that he does that than criticise a speech he probably hasn’t read.

Another of Elias’ points is that if you go to prison, you’ve got a greater chance of re-offending than if you’re given a non-custodial sentence. Do we want offenders to re-offend? I wouldn’t have thought so.

But also reflect on this comment of hers:

“In the last 10 years especially, there has been a change to greater prescription by Parliament. That is entirely legitimate. Parliament through legislation sets down the framework.”

But isn’t that what Simon Power said when he criticised Elias? Clearly, Elias knows that Parliament makes laws and policies because she says that such a role is “entirely legitimate”. It makes you wonder just what Power was thinking – or if he was thinking – when he criticised the Chief Justice.

And further to FE Smith’s comments briefly above, if you want to greatly reduce the chances of being involved in crime – especially those weird crime stories that frequent the front pages of daily papers – stay away from alcohol, licensed premises such as bars and clubs, and people that drink enough of it to have their mood changed. It’s that simple, and as F E Smith says, that unpopular. But it’s true.