The Old Bailey in Action

by Rich Cassidy on December 8, 2014

2014-10-24 15.33.16 (2)Old Bailey

As lawyers, we are practicing historians. We argue precedent and try to prove what happened in our cases.

I started watching “Rumpole of the Bailey,” — a mid-1970s BBC television series about a fictional  London barrister whose practice focused  on  representing indigent defendants in criminal cases — about  the same time I started law school. So Rumpole’s habitual setting, The Old Bailey, has always loomed large in my image of the courts.

In October, I had the opportunity to watch the denizens of The Old Bailey, the London Central Criminal Court, in action.

I was fortunate to be the guest of Senior Circuit Judge Charles Wide QC. Judge Wide is leading member of the British Judiciary and was a leader in efforts to establish the rules of procedure for British Criminal Practice.

The courthouse dates back to 1674, and is steeped in history and tradition. Some fifteen judges were hearing cases while I was there.

In the morning Judge Wide conduct several management conferences to get cases ready for trial on timely basis. It seemed familiar.

Judge Wide told me to expect to see some excellent lawyering when his docket turned to the continuation of a jury trial in a very interesting case. Apparently the trial was just the latest installment in a series of media scandal cases that have flourished in Great Britain since it was alleged that reporters for the Rupert Murdoch papers hacked celebrity cell phones to publish their secrets.

In the pending case, Crown v. Savage, four defendants were alleged to be engaged in a conspiracy  to corrupt a prison guard. The guard, Scott Chapman and his ex-partner, Lynn Gaffney were accused of selling information about the prison life of notorious inmate, Jon Venables. Venables kidnapped a two-year-old, then tortured and murdered the child. He had been released from prison, given a new identity, but was re-incarcerated after being convicted of child pornography.

The day’s hearing focused on tabloid reporter Tom Savage of the Daily Star. Savage and a News of the World journalist, who could  not “be named for legal reasons,” were charged with conspiracy to commit misconduct in a public office.  The idea that a person can be a defendant in a criminal case without being identified is indeed a foreign one to an American lawyer.

As the trial resumed after the morning’s status conferences, Savage’s barrister, John Ryder QC, was finishing an expert direct exam. Direct examination is an underrated skill. Guided by his barrister, Tom Savage told jurors he never knew Scott Chapman’s true identity or that he worked at the prison. He explained that he authenticated his source based on the source’s knowledge of Venables’ new identity. Savage acknowledged that if he had known that Chapman was a prison guard, it would “not have mattered in the slightest.”

At 1:00 PM we broke for lunch. From the drama of the working courtroom we moved to a meal that can only be described as high ceremony. The diners, guests, sheriff’s and judges alike, gathered in the hallway and processed together in the dining room. The judges are themselves guests in The Bailey of the Sheriffs of London.  I rarely feel under-dressed in my best blue business suit, but this was an exception. The sheriffs wore their robes, and the judges their robes and wigs. Conversation flowed as freely as the sparkling wine, and the judges obviously felt free to kibitz about pending cases with their colleagues.

After lunch, the Prosecutor, Jonathan Rees QC, grilled Savage about Chapman’s earlier testimony that Chapman did not hide the fact he was a prison guard from journalists. He accused Savage of lying under oath when he told a court he was unaware that his anonymous source was a prison officer.

Depositions are the exception, not the rule, in criminal courts in Great Britain. Cross examination is more art than skill when a cross-examiner is operating, like Rees, without  the benefit of prior statements from the witness. Rees worked carefully from one known fact to the unknown, and seemed to be making headway towards undermining Savage’s credibility.

The trial day ended early because of a juror commitment, and with it, my glimpse  in Old Bailey in action. Sadly, Horace Rumpole (always fictional and as embodied by Leo McKern, in fact deceased) was not to be sighted.

After I returned home, I learned that the trial had continued for two more weeks and the Savage was ultimately acquitted. His nameless colleague, the guard and his partner, were all convicted, and await sentencing.

My day at The Bailey was an adventure. Our system is plainly descended from the one in place there, but the differences run far deeper than wigs and robes.

Rich

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Last time I wrote about the inadequacy of the criminal justice system to “protect the children of the poor” from child abuse.2014-10-24 15.33.16 (2)Old Bailey

Whether or not the Psalms are divinely inspired, they often contain real wisdom. According to the Psalms, the wise king (or government) does not try to protect children solely by punishing wrongdoers.

A wise king has broader responsibilities:

“For he rescues the poor when they cry out, the oppressed who have no one to help.”

Psalm 72, Verse 12.

Last weekend the Report of the Vermont Citizen’s Advisory Board, one of the three entities investigating the Sheldon and Geraw cases, was made public.

The Report sheds little light on exactly how these children died. But it does contain a welter of recommendations on how we might as a State do better to avoid such tragedy in the future. Many of them involve improved State policies and procedures.  All most all of those recommendations will require more careful and time consuming work by DCF employees.

But two findings from the report seems to me most damning.

“It is clear that all agencies within the child protection system are carrying caseloads that are too high, which causes workers to triage, to burnout and leave, and to cut corners in an effort to do the best they can.”

F-5.2.D p. 14.

“Due to legislative funding cuts in the past decade, DCF lost central office supervisory and quality assurance staff positions.  As a result the Department does not have the capacity for robust quality control to monitor cases and apply lessons learned to policies, staff training, and resource allocation. DCF reports it is working to develop its quality control capacity.”

F-14.A  p. 8.

There is no free lunch. If our outrage about the failure of our government to adequately “protect children of the poor” is more than passing fad, and if we really intend to rescue the poor and the oppressed, we will have to do more than turn to our version of The Old Bailey, the criminal courts, for “justice.” And as much as I believe in the importance of good laws, we will have to do better than adopt more rules in the form of better policies and procedures.

We will have to put more resources into the system. That means we will have to pay for it.

We live in a democracy. We are — if we accept joint responsibility for the communities we live in — our own kings. If we really want to prevent this kind of tragedy, together we must work hard — and pay more — to support the families of at risk children, properly educate our citizens, and build a more just and secure society.

Rich

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“Defend the Children of the Poor and Punish the Wrongdoer”

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One of the benefits of travel is the opportunity it creates to reflect on the familiar from a fresh perspective. In London recently, an architectural feature stimulated my thinking about a public controversy at home. Over the main entrance at The Old Bailey, London’s Central Criminal Court, these words are inscribed: “Defend the Children of the […]

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The Collateral Consequences Resource Center Goes Live!

November 19, 2014

I am delighted to be a founding Director of the Collateral Consequences Resource Center, Inc.  Here is the announcement of our new website: “The Collateral Consequences Resource Center website is launching on November 19, 2014.  The website is at www.CCResourceCenter.org.  We hope it will fill a growing need for information and advice about the modern phenomenon of […]

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Ched Evans Out of Prison: Should He be Allowed to Return to Football?

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Take a look at this story about Ched Evans, an English footballer who played for Sheffield United, released from prison after serving half of a 5 year term for raping a 19 year-old girl. He was making $4.8 million dollars a year before his conviction. Should he be allowed to play again? What’s the right […]

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After All, It’s Indoor Work And There Is No Heavy Lifting

October 13, 2014

Viewed from a certain perspective, practicing law is a lot of work. But the right question is “compared to what?” The summer after my freshmen year in college, I took a job with a man named Luke. He ran a small business washing grocery-store floors.   We were up many hours before dawn, driving across three states […]

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Clarence Darrow: Archetype of an American Trial Lawyer — Part II

September 29, 2014

Last time,  I focused on Clarence Darrow’s cases and other accomplishments as recounted in John A. Farrell’s biography, Clarence Darrow, Attorney for the Damned (Vintage Books: New York, 2011; 561 pp. $12.92). But Darrow wasn’t just a lawyer. He was a radical and activist. He was a sometime politician. Surely, he was a celebrity, and some […]

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Clarence Darrow: Archetype of an American Trial Lawyer — Part I

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Resilience. That is the characteristic of Clarence Darrow that translates most vividly from the John A. Farrell biography, Clarence Darrow, Attorney for the Damned (Vintage Books: New York, 2011; 561 pp. $12.92). Resilience is, of course, a quality that all lawyers need, to one degree or another. Even lawyers in transactional practice work in an adversarial […]

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A Mediator’s Toolkit: Repetition

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One of the best mediators that I have ever seen in action makes a practice of repetition. No, I don’t mean that he repeats what he says over and over. I mean that he listens carefully to one side of the dispute and before he turns to the other side, he repeats what he heard, almost […]

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The Limits of Judicial Impartiality

September 12, 2014

Some years ago,  I visited the Massachusetts Supreme Judicial Court in Boston. Inscribed on a plaque outside the courtroom is language from the first constitution of the Commonwealth of Massachusetts: “It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of […]

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