Lucy Letby: the ineffable truth
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Crime & Punishment
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Spotted routinely in the trenches, culverts, comments and mentions of the keyboard war that yet rages — though I sense it is blowing itself out, with only a couple of Burmese Junglers yet resisting — over Ms. Letby’s conviction, you often variations on this rhetorical:
You were not at the trial. Unless you sat through ten months of evidence — unless you saw everything the jury saw, and looked into the whites of the defendant’s eyes — you cannot know the facts and cannot have a viable opinion on her innocence.
Of all the dwindling commonplaces advanced to prop up these sagging convictions, this is surely the weakest.
Run as it routinely is by prosecution supporters who also were not at the trial — who by their own logic have no better idea of how compelling a spectacle it was — it really amounts to this declaration:
“The outcome of this trial is agreeable to me. I wish to entertain no further debate about it.”
Impermeability
It is as if, res ipsa loquitur the process is presumed so immaculate and so infallible as to be impervious to later inspection. The trial was conducted according to the arcane rules of criminal procedure, laws of evidence, and oft-derided principles governing expert evidence. Its midwife was the fork-tongued swordplay of duelling barristers. These institutions have been set up to vouchsafe justice, but they are prime numbers: no later factorisation is possible.
From that tremendous melée, we are asked to suppose that 12 random citizens, with no particular powers of critical analysis between them, carried off a special feat: from months of fact, parry, thrust and counterthrust they extracted a simple impression free enough from reasonable doubt to form a verdict, but yet at the same time so mystical, magical and ineffable that it cannot thereafter be replayed, explained or rationalised to an increasingly sceptical public.
“What happened during the trial” is, apparently, immune to synopsis. Its salient points may not be drawn out, distilled or decanted, in broad strokes or fine, for those who were not there. Like the peace of God, it passeth all understanding. It is immune to mortal analysis. The holy spirit was upon these jurors, they spoke in tongues, their word was made flesh, a guilty soul was condemned and the spirit is gone. We who remain must silently abide.
The verdict is a brute ontological fact. Justice has visited, done its thing and gone again, leaving no trace. None can now make sense of it.
Even senior members of the bar will say this. This is meant to be okay. If it were true, it would not be okay. But it is not true. Not remotely.
What the eye don’t see
Acurious feature of this kind of argument is its dependence on what we cannot see. The truth is comprised of darkness. It stays in the shadows. What we cannot apprehend, we cannot challenge.
This quality of impermeability it shares with two other kinds of intellectual constructs: conspiracy theories and sacred faiths. To hold these beliefs we must subordinate the causes of movement across the landscape’s surface to something unseen, inferred machinations beneath it. These are deep impressions, not readily rendered in argument, matters of deep, unmentionable faith; allegiance to certain people whom we place upon a pedestal, and dark imputations of base instinct — primordial corruptions of the human spirit from villainous others, whom we assuredly don’t.
But explicitly, the criminal law does not work like this. It is — to a fault — rational. It is unfailingly evidence-based. Evidence is the be-all and end-all. Admissibility rules are strict. All that is allowed to matter is what lies on the surface. Innuendos and prejudicial suspicions are sponged from the record, unless they can be raised to the surface and put in full view of everyone for inspection and test. Everything is open to audit. A concluded case cannot defy comprehension.
It is also marked in contrast to the defence case, whether made by Ms. Letby’s actual defence team and their experts or those the unaffiliated journalists, statisticians, doctors, scientists, lawyers and (ahem) windbags who have chosen to speak on her behalf. The defence case is by nature public, detailed, specific articulated, and welcoming of good faith challenge. It has not had much. The credible challenges that have come back have been either formal in nature— the rules have been followed, she had her chance, ilea iacta est — or somehow mystical — there are things about this process that resist intellectual inquiry and must not be disturbed.
This is especially perplexing since it is generally the prosecution who must makes the intellectual running. The burden of proof is such that it is the crown, not the defence, that should be best at spelling out the ingredients of its case. That the burden reverses on conviction should not alter this fact
For if the evidence was so compelling, and the crown’s case so immaculate, you would think someone would be able to articulate it. There are any number of erudite criticisms of the law, the application of evidence, the use of statistics, of the crown witnesses’ speculative diagnoses, available in the public domain. Bar one cantankerous lobbyist for the alcohol and tobacco industries — whose professional calling is to champion dubious causes —— no one has managed to mount any explanation of the merits of the crown’s case.
If you weren’t at the trial you can’t know: “context is everything”, and guilt with events through a combination of interlocking facts. This is a kind of “emergence” argument. It is routinely run, ironically enough, by people who also were not at the trial.
If this is right then the outcome of no trial can ever be gainsaid, appeals should also be forbidden, and the curial process should be sanctified as some ineffable, inexplicable conveyance of mystical verities by means of holy procedure, to be hereafter obeyed.
That is not how things work. Trials are reported, there are sequences, there are critical phases, points of sharp drama and afternoons of procedural guff.
, they are appealed in segmented