Dealing with injustice in the justice system

By Dr Michele Ruyters
Lady Justice

The Bridge of Hope Innocence Initiative at RMIT (Innocence Initiative) is one of many organisations in Australia and overseas that have been set up to investigate claims of wrongful conviction in criminal cases.  Some organisations are independent public bodies such as the Criminal Cases Review Commission in the United Kingdom (or the now defunct DNA Review Panel in New South Wales) but the majority are pro-bono groups in the innocence movement.

The Innocence Initiative opened in July 2014 as a collaboration between RMIT University and the not-for profit Bridge of Hope Foundation. The Innocence Initiative is multi-disciplinary and involves student interns from RMIT University and other institutions working with academics, volunteers and lawyers on cases involving factual innocence. The primary aims of the initiative are to assist unrecognised cases of wrongful conviction and work to reform issues that lead to injustice. The initiative also addresses a legal needs gap in providing assistance to people who lack the resources to defend their cases.

In October 2015, the Innocence Initiative hosted a Miscarriages of Justice forum which discussed causal factors of miscarriages of justice and possibilities for reform. Former Justice Frank Vincent and solicitor Kimani Boden were among the panel speakers. In 2009, Kimani Boden had represented Farah Jama, a young man who had been wrongly convicted of a rape fifteen months earlier. His conviction was based on a single sample of DNA evidence. Fifteen months later, prosecutors admitted that the sample may have been contaminated and his conviction was set aside at appeal. Frank Vincent later conducted an inquiry into the events that led to Jama’s conviction

Jama’s prosecution and conviction epitomised system failure. As in Jama’s case, criminal justice system failure often occurs because someone has made a mistake during the investigative, prosecutorial and judicial processes. Evidence can be overlooked or misinterpreted. Witnesses’ perceptions of events can be distorted through time, distance and the conditions in which the observation took place. Investigators and forensic experts make mistakes in the collection, storage and analysis of forensic evidence. We may never know in any particular case whether witnesses, prosecutors, judicial officers and jurors see particular facts through gendered, ethnic or racial lenses. System failure also happens when people feel pressured into pleading guilty because of sentencing discounts and plea bargaining negotiations. System failure happens when people believe they have no other choice, when they do not understand what is being said or where to go for help, if help is even possible.

Many defendants lack the skills and capacity to negotiate the complexities of the criminal justice system.

The rates of wrongful conviction in Australia are unknown but conservative estimates in the United States, which shares similar causes of wrongful conviction with Australia, show the rate of wrongful convictions in capital cases at 4.1 per cent. It is likely that any number of innocent people remain undetected in prison until release because they did not think they had any option but to accept their conviction, or they were unaware that they ever had any options to challenge their arrest, prosecution and trial.

There are other issues around the “by-products” of maintaining innocence when the system has declared guilt. Michael McNaughton who chairs the Innocence Network UK has argued that people see convicted defendants through different lenses. These lenses shift according to a person’s particular role, ideological position or situation in life.  A parole board, for example, will work from the position that prisoners acknowledge responsibility for their crimes, which can cause dilemmas for prisoners who maintain their innocence, particularly in climates of “no body – no parole”. Moreover, post-release services will work on assumptions that guilty means exactly that.

Proof of innocence also usually has a deadline. Time runs out pre-trial when the defendant simply does not know any better than to plead guilty, or is unaware as to how to obtain the right legal advice, or even that their rights can be exercised in the first place. Many defendants lack the skills and capacity to negotiate the complexities of the criminal justice system, which has the capacity to generate social and racial incognizance through its specialised language and lexicon. Some people need to negotiate several levels of language complexity. Time can run out during trial because not all relevant information pointing towards innocence is available or known at that time. Time can run out after trial because a defendant does not have the funds to appeal but is “insufficiently impoverished’” to qualify for legal aid, or because appeal rights in a particular jurisdiction are limited to one appeal.

Like so many people over the Christmas period, I subscribed to Netflix and watched the documentary series Making a Murderer It would be comforting to assume that the failures of the criminal justice system, as they are portrayed in the series, are extraordinary, that they are rare, and that they happen in places that are not Australia. However, that assumption is naïve. At the very least, the series has highlighted several flaws that should be identified and addressed in any reflexive criminal justice system. Cases such as Farah Jama, Josephine Greensill and Lindy Chamberlain bring these concerns to public consciousness every so often but while the system self-flagellates and institutes some change in response, it does seem that little has been done to address underlying conditions for system failure.

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