Politics in the Courtroom: Political Ideology and Jury Decision Making

by Shamena Anwar, Patrick Bayer, Randi Hjalmarsson. Publication is available here.

This paper uses data from the Gothenburg District Court in Sweden and a research design that exploits the random assignment of politically appointed jurors (termed naemndemaen) to make three contributions to the literature on jury decision-making: (i) an assessment of whether systematic biases exist in the Swedish naemndemaen system, (ii) causal evidence on the impact of juror political party on verdicts, and (iii) an empirical examination of the role of peer effects in jury decision-making. The results reveal a number of systematic biases: convictions for young defendants and those with distinctly Arabic sounding names increase substantially when they are randomly assigned jurors from the far-right (nationalist) Swedish Democrat party, while convictions in cases with a female victim increase markedly when they are assigned jurors from the far-left (feminist) Vaenster party. The results also indicate the presence of peer effects, with jurors from both the far-left and far-right parties drawing the votes of their more centrist peers towards their positions. Peer effects take the form of both sway effects, where jurors influence the opinions of their closest peers in a way that can impact trial outcomes, and dissent aversion, where jurors switch non-pivotal votes so that the decision is unanimous.

Showdown at the Supreme Court corral

Queensland’s judicial system looks to be in quite a bit of strife at present. The former Newman LNP government’s ill-advised appointment of an utterly unsuitable Supreme Court Chief Justice in Tim Carmody is continuing to cause serious problems.

Mercifully, at least Carmody CJ has been belatedly bludgeoned by his judicial colleagues into recusing himself from further hearing an appeal against conviction by Brett Cowan, who was convicted last year of the murder of Daniel Morcombe.  Carmody CJ  grudgingly admitted when pressed that he had held a private meeting with Hetty Johnson, outspoken founder of child sexual abuse lobby group Bravehearts, while considering the Morcombe appeal.  Simultaneously the DPP is appealing Cowan’s sentence as manifestly inadequate.  Daniel Morcombe’s parents apparently don’t agree, but Carmody’s colleagues may have actually done them a favour.  Had he not recused himself, there is a significant probability that an appeal to the High Court on grounds of reasonable apprehension of bias would have succeeded. The Morcombe family would have been faced with a least a couple more years of litigation pressure and lack of “closure”.

Holding private meetings with parties and their associates during court proceedings is one of the classic bases for disqualification on bias grounds. Bias decisions on this ground almost always cite McInerney J in R v. Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; (1973) VR 122:

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Elferink ups the ante, Delia folds

Delia Lawrie’s announcement today that she was resigning as NT Labor Opposition Leader isn’t really surprising in light of yesterday’s news that Attorney-General John Elferink had referred her conduct over the Stella Maris controversy to both NT Police and the Director of Public Prosecutions for investigation:

At her office in her electorate of Karama, Ms Lawrie said she would be focusing on her upcoming legal problems. …

“The news that the CLP were referring the Stella Maris [inquiry] to the Director of Public Prosecution and the police makes me want to focus my mind with my legal team.”

In two previous articles I discussed aspects of the current controversy surrounding NT Labor Opposition Leader Delia Lawrie in the wake of adverse findings made against her in the Supreme Court after she unwisely pursued judicial review proceedings challenging on natural justice grounds earlier adverse findings against her by a Commission of Inquiry (effectively a royal commission) headed by former Australian Crime Commission boss John Lawler. The judicial review proceedings failed after Lawrie was forced to disclose confidential lawyer/client communications.  Southwood J found that the emails revealed that, far from being denied a fair opportunity to be heard before Commissioner Lawler, Lawrie and her lawyers had made a calculated decision to “disengage … ignore … and discredit” the Commission from a fairly early point in its hearings.

My previous articles mainly focused on deficiencies in the Commission proceedings and report, as well as reasonably arguable appeal points Lawrie might pursue against aspects of Southwood J’s decision.  However, the Attorney-General’s referral of Lawrie’s conduct for investigation of possible criminal conduct raises further questions that need to be examined.

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Perverting the course of justice?

(NB See my previous post on this important NT Supreme Court decision). News that CLP Attorney-General John Elferink has referred the Delia Lawrie matter to the Director of Public Prosecutions is hardly a surprise, given adverse comments about her behaviour in a Supreme Court judgment last week. In a realpolitik sense it’s the governing party’s job to put the heat on the Opposition whenever possible, and vice versa:

Northern Territory Opposition Leader Delia Lawrie has been referred to the Director of Public Prosecutions (DPP) by her political rivals after a Supreme Court judge said she knowingly made false allegations. …

“The fact that you have the Leader of the Opposition colluding to put information in front of a Supreme Court, ultimately to encourage it to make the wrong decision, is a very serious matter indeed,” he said.

“I’m asking the question as to whether or not an affidavit that potentially contains false information may become a breach of the Oath Act or ultimately a breach of the criminal code.”

Another news story suggested that Elferink was asserting that Lawrie and her lawyers may have engaged in a conspiracy to pervert the course of justice.

But what are the prospects that the DPP would decide to lay charges, or that they might succeed? I am not a criminal law expert nor do I have a complete knowledge of the facts in Lawrie v Lawler nor access to the relevant court documents. However, as an administrative law expert and very experienced general civil litigation lawyer I can make a few tentative observations. (warning – may be a bit dry and legalistic for some tastes)

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Snatching defeat from the jaws of victory?

The old, heritage-listed Stella Maris Seamen's Mission in Darwin's CBD

The old, heritage-listed Stella Maris Seamen’s Mission in Darwin’s CBD

Northern Territory Labor Opposition Leader Delia Lawrie is a fearsome political warrior, a divisive figure who seldom compromises or takes a backward step. In many circumstances those are great qualities for a politician, but not always.  For my money the wise politician’s central credo was best summarised by the great Kenny Rogers:

You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run …

Every gambler knows
That the secret to survivin’
Is knowin’ what to throw away
And knowin’ what to keep
‘Cause every hand’s a winner
And every hand’s a loser
And the best that you can hope for is to die
in your sleep

Kenny’s words of wisdom were never so important for Delia Lawrie as now, when she’s contemplating whether to hang in as Labor leader in the face of an adverse Supreme Court decision, and whether to appeal that decision.

Many observers find it quite puzzling as to why Ms Lawrie decided to embark on those Supreme Court judicial review proceedings in the first place. After all, few if any Territorians even registered the fact that the Lawler Commission of Inquiry had even taken place let alone made somewhat adverse findings against Delia Lawrie. Certainly the general media and political view was that the Lawler Report was something of a damp squib that had sunk almost without trace, doing little or no damage either to Ms Lawrie or Labor in general.

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More metadata musing

In answer to my post earlier today about the data retention bill, frequent commenter Patrick Fitzgerald made a rather important point about the data retention zeitgeist:

Embrace the panopticon Ken, buy yourself a webcam, attach it to your head and stream live 24×7. Plus for good measure get a fitbit with GPS and stream that live 24×7 too – that way at least your friends will know as much about you as your enemies, and you may kill at least one enemy through boredom ;)

As it was, I had already made pretty much the same point earlier in the day on Twitter in answer to a tweet from FOI guru Peter Timmins linking an article about the US situation regarding metadata retention.


 

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Ahead of the zeitgeist on metadata

Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.

I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:

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Lost the party leadership? Consider yourself lucky …

Amidst all the depressing events of last week’s failed leadership coup in the Northern Territory, there was at least one redeeming feature, at least for constitutional lawyers. Adam Giles’ refusal to resign as Chief Minister, despite losing the confidence of the majority of his party room (albeit in a dodgy unofficial meeting), gave rise momentarily to an occasion for exercise of the Administrator’s reserve powers.

Chief Minister “elect” Willem Westra van Holthe asserted to the assembled media at Government House that Giles’ refusal to sign a resignation letter was just a momentary glitch in his plans to be sworn in as the new Chief Minister by Administrator John Hardie.  They would simply need to prepare an “instrument of termination” for the Administrator to sign.

Unfortunately for van Holthe and his majority coup plotters, the Administrator didn’t agree. He indicated (no doubt after consulting the Solicitor-General) that it was a matter for the Legislative Assembly. In the circumstances that existed last week, that was clearly the case. The conventions of responsible government indicate that an Administrator/Governor should only exercise his reserve powers by dismissing a Chief Minister/Premier/Prime Minister contrary to the incumbent’s advice and appointing a successor in his or her place if it is completely clear that the incumbent has lost the confidence of Parliament and that the claimed successor now enjoys that confidence. Usually that will require the contenders’ numbers to be tested on the floor of Parliament. However, what happens if the claimed successor is able to produce clear written evidence that he/she now enjoys the support of a majority of members of Parliament? Wouldn’t that be sufficient justification for exercise of the reserve powers?

Of course that wasn’t the situation in the Northern Territory last week. Van Holthe had the support of only nine out of the 25 members of the Legislative Assembly i.e. a clear majority of the governing party but not of the Parliament itself. Accordingly, there is no doubt that the Administrator was correct in his interpretation of reserve powers. The only way to resolve the situation was for the contenders to test their support on the floor of the Assembly.  The Administrator no doubt would have exercised his reserve power to recall the Legislative Assembly urgently had the CLP Parliamentary Wing not resolved its leadership dispute (in however bizarre manner) a few hours later.

But what if the situation had been that Giles was refusing to resign but it was clear that the other 13 government MLAs supported the claimed successor van Holthe?  Could the Administrator properly have terminated Giles’ commission and appointed van Holthe without a Parliamentary motion of no confidence? It appears that the question has arisen in several Commonwealth nations with a Westminster system, including Malaysia, India and Fiji. However, the most entertaining example of such a situation is one that occurred in Nigeria. It suggests that the Queen and her advisers do not necessarily regard a no-confidence motion as being an essential requirement for dismissal. The story is recounted by prominent constitutional law academic Anne Twomey:

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