Advice for the innocent

Andrew L. Urban.

Do NOT be cool, calm, stoic and collected. From the moment you are interviewed by police, innocents even suspected of a serious crime should be indignant and emotional, otherwise you may not be believed. And if you are charged and facing trial, be sure to emote when declaring your innocence. That’s the lesson of lived experience.

Those who remember the Lindy Chamberlain case will remember how much was made of her stoic, calm demeanour in the face of her baby’s disappearance, presumed murdered … by her. At trial she didn’t break down and emotionally protest her innocence, her grief …  big mistake. She was convicted.

Here is just one media report, well after the events (Malcolm Brown, The Guardian, 13 June, 2012):

In the aftermath of the case brought introspection among Australians. There always was objective evidence of a dingo attack: a growl heard by other campers at Uluru shortly before Lindy Chamberlain raised the alarm; paw prints at the doorway of the tent; drag marks in the sand; canine hairs in the tent; and, of course, Lindy’s own evidence that she had seen a dingo leave the tent.

Yet immediately there was scepticism and scorn. It seemed an unlikely story and the Chamberlains displayed an outwardly calm demeanour. That set the atmosphere for the vicious rumours that began to circulate, including the false claim that the name Azaria meant “Sacrifice in the Wilderness”.

Coincidentally, I recently came across an observation that perhaps explains this:

Romantic culture places emphasis on passionate beliefs. It invites us to display passionate convictions. By this measure, truth is a quality that is rooted in self-certainty. If I am absolutely convinced that “this happened to me”, and I express this self-certainty in a forceful manner, then my belief is “true”. This theory has had a big effect on modern societies. Our contemporaries, including juries, are more disposed to believe accounts that are expressed with emotional power. Persons who express things stoically, in a matter-of-fact manner, are less likely to be believed.

In other words we tend to be overwhelmed by emotional displays and emotional stories tend to be inherently “believed”. However, belief (that is, being inwardly certain of something) is not the same as truth. We can be firmly convinced of something without it being true. – Peter Murphy, Quadrant, Dec 28, 2018  Peter Murphy is the author of Civic Justice: From Greek Antiquity to the Modern World (Big Sky Publishing)

Murphy was writing about the Kavanaugh hearings as part of his confirmation as a justice on the Supreme Court, in the US Senate, about an accusation against him of historic sexual abuse. (Those who followed the hearings will recall how emotional he got defending himself, drawing criticism from his political enemies that his behaviour was not judicial. No, but he was not there as a judge sitting on the bench. He probably doesn’t behave like a judge at home or on the golf course, either.)

A more recent example is that of Sue Neill-Fraser, whose calm demeanour was interpreted – certainly by some in the media and some in court – as a sinister signal. For example, when the DPP Tim Ellis SC confronted her in the witness box about how she killed Bob Chappell, her answers were cool, composed:

CT 1297 DPP ELLIS
It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him.
NEILL-FRASER: Mr Ellis I have never struck anybody, let alone somebody I loved dearly.

DPP Ellis pursues and embellishes his speculation about the method of the murder and admitting not knowing what the murder weapon in his speculative scenario might have been – but keen to convince the jury there was one.
 
CT 1381 DPP ELLIS: You picked up something and struck him intending to kill him and killing him?
NEILL-FRASER: this is just not true.

Contrary to how her family and friends see her, Sue Neill-Fraser inadvertently misled the court by her cool demeanour, as the judge’s sentencing demonstrates:

Justice Blow:
I have had the opportunity to observe Ms Neill-Fraser during two very long police interviews. DVD recordings of both interviews were played during the trial.

Ms Neill-Fraser also gave evidence at the trial over several days. She seems to me to be clever, very cool-headed, and well able to control her emotions. In my view Ms Neill-Fraser would not have attacked Mr Chappell unless she intended to kill him, had a substantial reason for killing him, was confident that she would succeed in killing him, and had a strategy to avoid punishment. This was not a killing that occurred because of a loss of self-control. It was not a crime of passion. It was an intentional and purposeful killing.

If Peter Murphy is right that Persons who express things stoically, in a matter-of-fact manner, are less likely to be believed, Sue Neill-Fraser should have been indignant and emotionally robust from the very beginning, when interviewed by police (to which Blow J refers). In the interview on 4 March, 2009, she stated calmly:

I mean, I know that I must be a suspect; I mean I did not murder him and throw him overboard attached to the fire extinguisher.

In Undercurrent (7 Network, 6 x 1 hour), we see her police interview on camera and wonder why she is so calm when accused of murder. “I had nothing to do with Bob’s disappearance,” she says at one point, without raised emotion.  But that’s how she was, according to family and friends; emotionally reserved.

Cardinal Pell did slightly better at his police interview, with an indignant initial response to the allegations of his sexual abuse of two 13 year olds in the sacristy, ridiculing the allegations. But it’s in front of the jury that it really matters, and in court Pell was the picture of decorum and calm. While respecting the court and the jury, an accused who is innocent cannot afford to allow polite, respectful and calm behaviour to suppress a robust, self defensive manner, forceful, even, to deflect the prosecution’s false allegations. The jury must FEEL the wrongness of the accusations.

It’s too late to be angry and indignant after the judge and the jury have misinterpreted cool & calm behaviour as coldblooded guilt.

 

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3 Responses to Advice for the innocent

  1. MM says:

    Lindy Chamberlain’s trial by public opinion is being played out all over again in the Madeleine McCann case. Everything from the parents didn’t act sad enough to the implausibility of child trafficking is being hotly debated around the world.

    Pretty disturbing when you think about it. The number one priority for police, prosecutors and the courts is making the public feel safe again, the guilt or innocence of a suspect comes last. This presents us with a conundrum, I’ll give two cases as examples to reflect upon….

    I was recently a witness to a trespass and brutal assault. Had I not looked out my front door when I did, it would have been the victim’s word against the perpetrator. When it went to court my identification of the perp was thrown out, the best we could hope for was a fine. Things turned around at the final hearing when nearly the entire community came to watch because the perp was a well-known neighbourhood terrorist that everyone was afraid of. The judge was more or less forced to make a determination that made the community feel safe again and the perp went to jail.

    There was another case I was involved with over a decade ago where a day-care center was previously lobbying the local council for 40km speed signs. When a car accident resulted in damage to the building they had a story published in the newspaper the next day claiming it was teenage hoons and THAT’s why they needed the signage. The charges finally laid were not a traffic offense but a criminal offense (up to 5 years jail), obviously designed to appease the public. The defendant was lucky enough to have a court in another jurisdiction consider the hand-up committal. Without the ad-hominem newspaper story and an outraged community to influence the judge, the criminal charges were reduced to negligent driving.

    In both cases, I do believe the judges got it right, both outcomes were just. In the first case however, justice would not have been well served had the community not been a major consideration. And in the second case, the only way justice could have been well served is without community influence.

    That’s the conundrum I believe we, as a community, are presented with. There’s a fine line between trial by public opinion and playing an active role in keeping our neighbourhoods safe.

  2. Williambtm says:

    This comment touches upon a very important aspect of an innocent accused’s response to a barrel of accusative questions, albeit these questions can only elicit an uncertainty of response.
    No longer is the spoken word acceptable (see the above) perhaps now the written word can also fail to convince a prejudiced prosecutor to bear any countenance toward a person’s innocence?
    The interesting point put forward is that one’s emotional self-discipline counts against one’s self in a courtroom setting.
    An action of “Assumed Psychological Analysis” by an expectant judge and speculative prosecutor, having slithered its assumptive unwelcome self into the legal arena, is nothing other than the allowance to an unwarranted and imprecise nebula of calculable mischief.

  3. Brian Johnston says:

    Justice Blow:
    I have had the opportunity to observe Ms Neill-Fraser during two very long police interviews. DVD recordings of both interviews were played during the trial.
    Ms Neill-Fraser also gave evidence at the trial over several days. She seems to me to be clever, very cool-headed, and well able to control her emotions. In my view Ms Neill-Fraser would not have attacked Mr Chappell unless she intended to kill him, had a substantial reason for killing him, was confident that she would succeed in killing him, and had a strategy to avoid punishment. This was not a killing that occurred because of a loss of self-control. It was not a crime of passion. It was an intentional and purposeful killing.

    Please note:
    “She ‘seems’ to me”..showing doubt.
    “In my view”. Opinion, no evidence.
    Then the big one.
    Ms Neill-Fraser would not have attacked Mr Chappell unless she intended to kill him…This comment is not factual, is without basis and is a nonsense.
    Blow then without any evidence called it a crime of passion, an intentional and purposeful killing.
    I believe Blow assisted the prosecution,(EDITED).

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