Lucy Letby: legalese wot did it
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Crime & Punishment
Lucy Letby Edition
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For five and a half years, I’ve presided in that trial court in New York City. ... On the civil calendar, the automobile accident was the bread and butter of it. God knows how many I presided over: hundreds, maybe even a thousand.
Out of all of those cases and all of those lawyers, ladies and gentlemen, so help me, not once did I ever hear a lawyer use the word “car”. It was always “motor vehicle”. Not once did I ever hear a lawyer say to a witness, “how did you drive your car?” It was always, “what did you then do with respect to the operation and control of your motor vehicle?”
As if they were writing a trust indenture and in any event, that’s no way to write a trust indenture.
- —Irving Younger, Ten Commandments of Cross-Examination
Imagine using language so contorted that it baffled a judge. The beak therefore missed the point — a good one, on a crucial issue — and as a result your client has been thrown in prison for the rest of her natural life.
Imagine, for that matter, being thrown in prison, for the rest of your natural life, for nothing more malign than your own lawyer’s windy phrasing.
I can’t be sure, because the transcript is secret, but this may have happened to Lucy Letby.
[linking piece]
But — as her counsel Mr. Myers KC, rightly argued, the strength of this identification evidence depends entirely on how the prosecution put it together. If they looked for wrongdoing only during Ms Letby’s shifts, then Ms Letby’s mere presence is no evidence at all.
In that case there there is no evidence to implicate Ms Letby. She has no case to answer. This is heady stuff.
So it would be a great pity if the reason the Court denied her defence its disclosure application was because the judge didn’t follow Mr. Myers’ circuitous language.
We arrive at another of JC’s hobby horses. Legalese.
Now this is highly speculative, and most likely, in the narrow case, wrong. But I mention it in support of the broader point, neatly made by Irving Younger in the caption at the top.
Lawyers struggle to say things clearly.
Sentence to life imprisonment for legalese?
Lawyers are daily entreated to write clearly, in the non-nonsense plainsong of the, er, man on the Clapham omnibus — that’s the ordinary person, to you and me — but no lawyer seriously believes it.
As are all specialists, we are in love with our coded cabbagewords and vogue phrasery. Even in casual conversation, we speak in the mannered way we learned at our elders’ knees.
We learn to emulate. We are enculturated into a way of doing things. As are all secret societies, we are frightfully memetic.
Usually, this does no real harm to anyone but the general public, and even then only to its pocketbook: our baroque figures fortify the age-old moat about our profession. They keep the ghastly horde of noble amateurs, who might otherwise second-guess us, at bay.
Legal language is sexually selected: it is our peacock’s tail. It is meant to set us apart, and keep you lot in the dark, wondering what on earth it is we do.
Section 8 Application?
Cocklecarrot L.J.: Oh, Sir Jerrold. It’s you.
Sir Jerrold Baxter-Morley, K.C.: (rising and scraping his chair leg flatulently across the parquet) My liege.
If it, doth and, as I stand, continueth
To please M’Lord, he might
See his way fit, with all that saintly charity
His loyal cavalry of attorneys know only o’er well
To cast his learn’d and well-practis’d eye
And while thereabouts, adjust his well-trouser’d hock
Askance your grateful counsel’s meagre salutation?
Might I, as it were, if it —
Cocklecarrot L.J.: O, blust’rous veil that wraps a clot
About this gavel’d hand!
Speak plainly, Sir!
What the devil are you talking about?
And make it quick! I have a tee at three!
The Crown has not disclosed how it assembled the charges or compiled the attendance chart. Ms. Letby’s defence thinks it should, and has, in effect, told the teacher.
Now, plainly, how the Crown has brought the charges could undermine a vital plank in its case: if Mr Myers is right, it blows it out of the water. Hence, his Section 8 request. It should be a cinch.
Lawyers famously do not have a great felicity with statistics, it is true, but this surely should not take much explaining.
And indeed, Mr. Myers explains it: if you sit in a quiet, dark room, wrap a wet towel around your head, and jab yourself with a fork, you can just about make his argument out.
Once you make it through that blust’rous veil, it is compelling. But Mr. Myers has so thoroughly drenched his submission in deference, circumlocution and supplication — this is not a barrister presenting a slam dunk argument to a learned judge as a serf prostrating himself for alms before a despotic king — that you wouldn’t know it and, I fear, the Mr. Justice Goss didn’t know it either.
Mr. Myers is so apologetic about his approach that it all but evaporates in the dank atmosphere of the courtroom:
Before enlarging upon that, having shown your Lordship where it is that we are primarily concerned, I’d just like to explain, so it’s quite clear, why the defence are requesting material relating to how the prosecution have made these decisions.
The Defence are concerned by the extent to which Ms. Letby is a focus of blame by virtue of being Ms. Letby rather than by virtue of evidence outside that fact pointing to the commission of an offence or, more particularly, commission of an offence by her.
Your Lordship may recall the table [exhibit reference] that might be described as the presence table or however it’s put. But your Lordship will be familiar with that and identify as being present, and the only person present, on all of the occasions set out in that table and, one can see from the line at the bottom, present by some great degree compared to anybody else. [...]
Of course, there are two ways in which one can regard that. One may be that, having selected particular events and looked at them, it turns out that Ms. Letby was present on each occasion. An alternative would be that that was in effect the parameter for selection of cases and inevitably, therefore, those cases which have been found to be worthy of further consideration are automatically associated with her.
The Defence have been concerned by, and what lies behind requests in disclosure request for and this item that’s carried through into this section 8 application, is a way of assessing the extent to which the mere fact that Ms. Letby was present has, in effect,[1] become a search term and a parameter for bringing a prosecution (or bringing the allegation, I should say).
[...]
My Lord, the problem with proceeding on the approach it’s a true bill — I understand what my learned friends mean and the sense of that.[2] But the problem is the duties of the investigators certainly, and the prosecution as well, is whilst doing that at the same time to have a mind to alternative lines of inquiry or alternative possibilities, which is why the code is drafted as it is.
We cannot see how, for example, the explanation just given gets away from the fact that if Ms. Letby’s identity was the fact that determines what passes the investigative threshold, as set out in the items disclosed, however there isn’t a powerful element of circularity to that if what has been weighted is the mere fact of her presence.
This is a very roundabout and elliptical way of saying something that is already complicated enough.
Now applying the JC’s patented nutshellometer — and stripping out the deferential tone, and applying some antipodean bluntness — this says:
We ask you to order the prosecution to disclose how it decided which allegations to investigate.
We are concerned it may have chosen events because Ms. Letby was present when they happened, and not because the events suggested criminal offending by anyone, let alone her.
The Prosecution’s “presence table” identifies Ms. Letby as the only person present at every event. No one else comes close.
There are two possible explanations for this:
Either the prosecution has selected the events without considering who was on duty, and it turned out Ms. Letby happened to be on duty for every one.
Or the prosecution filtered the evidence to only look at suspicious events that happened when Ms. Letby was there.
In second case, Ms Letby’s presence would be inevitable. It would not be evidence of anything.
We want to assess whether Ms. Letby’s presence was the “search parameter” for making an allegation.
If Ms. Letby’s presence determined what counts as a suspicious allegation, the attendance chart is circular, and highly prejudicial.