Brain graze



Blogville's esteemed, middle-of-the-road expert in matters legalistic, KEN PARISH, has gone to considerable lengths to explain via email why defence lawyers -- such as a bewigged woebegone acting in the case against ATSIC chief Geoff Clark and others -- can pass on unchecked their clients' untruths to the court. Ken's always worth a read.

I agree. The attenuated ethics of criminal defence lawyers allow them to put submissions to the court as instructed by the client, unless they actually know that what they're saying is false. They're not under any obligation to enquire into the truth or otherwise of what their client tells them either.

Moreover, lawyers often go to great lengths not to be told things by their client that would make it impossible for them to assert that their client is an innocent man. Even Rumpole episodes highlight these sorts of manoeuvres: you find ways to make sure your client doesn't tell you he's guilty (unless you've concluded that he's better off pleading guilty, because he just doesn't have even an arguable defence), because it constrains what you can say as a defence lawyer. You can't expressly claim your client is an innocent man if he's told you he isn't. There are lots of dodges of that sort. For example, one of the first things you're taught as a young lawyer going up to do your first guilty plea in mitigation is that you never simply regurgitate the prior convictions your client has told you about, especially where they were incurred interstate. There's at least a chance that your client's 5 previous DUI convictions from Victoria won't have been passed through the system, and the local police won't have a record of them. So you approach the prosecutor before court starts and ask him whether he has records of any priors by your client or, if you arrive too late for that, just look puzzled and make sure the magistrate asks the prosecutor first. If he says nothing is known, you're entitled to make submissions which build on the prosecutor's advice without correcting it. You don't actually say your client does have a clean record (because you know that's a lie), you just let the prosecutor's advice to that effect stand.

Lawyers have a duty to the court not to knowingly mislead it, but it's a duty that's fairly loosely construed. As long as you don't knowingly tell an outright lie, you're pretty safe. I'm not sure what I think of these practices. They have their obviously dodgy aspects. On the other hand, if criminal clients were unable to communicate reasonably frankly with their lawyers for fear that they would be compelled to disclose it to the court, their defence would be drastically handicapped. In part, it's an aspect of the fundamental (and important) presumption of innocence and associated right to remain silent. It's up to the Crown to prove you guilty, you're under no obligation to dob yourself in. The fact that lawyers are entitled to put facts to the court as part of a guilty plea that their client has told them are true, without necessarily being required to make independent enquiries, is also important from a practical viewpoint. In the ordinary run of the mill case, it just won't be practical, and there won't be time, to check out claims of the sort you're talking about. It would price legal representation out of most people's reach if lawyers were at peril of being subject to disciplinary action for unknowingly misleading the court because they told the magistrate something their client had told them which turned out to be false. If that were the rule, a prudent lawyer would be forced to insist that all clients' instructions be independently verified by a private detective (or whoever) before being put to the court. maybe one way to improve the situation would be for defence lawyers to be required to disclose their case in advance to the prosecution, including all factual assertions they intended to make that might conceivably be contested. That way, if an assertion sounded dodgy, the prosecutor would be able to check it out before the case started.

Finally, note that assertions of the sort you're talking about should normally be given little no weight by the magistrate. If the prosecutor disputes the truth of something the defence says (or vice versa), they should object. Even during a guilty plea, lawyers can't "give evidence from the bar table" if the other side objects. Evidence is meant to be given on oath from the witness box, by someone qualified to give it. The prosecutor could and should have objected to the defence improperly giving evidence from the bar table of the sort you outline. Lawyers will often try to get away with giving evidence from the bar table unless and until it gets objected to. the prosecutor in ths case should certainly have objected. That's even more true in the course of a trial where the defendant has pleaded no guilty (as I gather Clark did). The defence should not have been permitted by the prosecutor to make a statement of fact like that from the bar table.


THE AGE branded Olympic skier cum Labor politician Kirstie Marshall a ''celebrity MP'' and just like a girl from the glossies, Marshall pulled off a stunt that had the hallmark of a publicity mill grinding overtime.
A day after saying she would have no trouble looking after her 12-day-old baby while the Victorian Parliament sat -- her Mum would be on hand and there was a room where she could breastfeed the little darling -- Marshall got front page coverage for defying the rules of the House by breastfeeding the kid in the Chamber.
The Speaker, a woman, had no option but to kick her out: only elected Members are permitted on the floor, something Marshall should have known if she was serious about her situation.
Marshall explained: "I was running late, I couldn't get a hold of mum. And if anybody had have seen me, I walked, you know, from my car straight in as the bells were ringing."
So her mother let her down.
What is it about dumb, blonde jocks blaming their mums everytime something goes wrong?
And what sort of representative have the voters of Forest Hill elected when she can't get to the office on time on her first day at that workplace?



Should any lesser mortals get hauled before the beak, the least expected is the truth. So why doesn't the same onus lie with the forces of litigation?
In the court case against Aboriginal and Torres Strait Islanders Commission chief Geoff Clark, barrister Neil Clelland alleged ongoing, historic racial discrimination.
As THE AGE reports, Clark, 50, who was recently re-elected chairman of the Aboriginal and Torres Strait Islander Commission by just one vote, faced Warrnambool Magistrates Court yesterday to fight five charges arising out of pub brawls in Warrnambool last May.
Robert Richter, QC, defending, told the court Clark went to the Warrnambool races, where a race was staged in honour of his mother, Aboriginal elder Alice Clark, on May 2, 2002.
Then, Clelland told the court this was the first time local Aborigines had been permitted into the members' area and not confined to a nearby shed known as the "blacks' bar".
This is utter crap. Regulars at the Warrnambool May racing carnival know that Clark and sidekicks have been watching the nags from the members for years. In 1996, I saw him escorted by an official into the committee reserve, out-of-bounds to ordinary members.
Back in the late 1980s I enjoyed a couple of beers in the members with a great Australian from that neck of the woods, the late Reg Saunders, the first Aboriginal officer in the Australian Army.
In an earlier life as a court reporter, I was often astonished at the bullshit lawyers would serve to the bench, based on what their clients told them. Often unsubstantiated claims would be injurious to innocent parties, such as in the perennial plea: "My client was abused as a child''.
Surely if it's the responsibility of witnesses, the Crown and the press to be honest and accurate in dealings with the court, the same obligation should apply to the defence.


Anyone who has spent any time around the magistrates court knows there is a criminal countenance. A form of shifty-eyed belligerance that tells you straight away why it was so easy for the wallopers to nab the miscreant. Well, the cops in Texas didn't have to make any value judgement based on this baddie's looks. His name was enough.
The convicted burglar, arsonist and rapist headed to the Texas death chamber Tuesday night for fatally slashing and stabbing a wheelchair-bound woman in Houston six years ago less than a month after he got out of prison.
Richard Head Williams, 33, would be the ninth Texas inmate executed this year and third this month. Yep, that's Dick Head Williams.



PPPHHHHHZZZZZZZZZ!!! That's the sound of a Cooper's Pale Ale decapping. MUUNNCH!! CRRUUNNCH!! And that's a brutal assault on a doorstop of light rye packed to the gunnels with champagne ham, swiss cheese, rocket lettuce, neighbour Dorothy's tomatoes and cucumber, all swimming in a morass of my sister's homemade green pickles.
These are the most suitable accompaniments I can think of for investing half an hour absorbing BILL WHITTLE'S stunning essay on what it means to be a contemporary American and how it's all about confidence.
He's the best blog writer this side of Lileks. He also recalls the sharpest pick-up line ever delivered. Thanks to TEX for the link. Excerpt:

There are many principled, patriotic Americans who are opposed to the Battle of Iraq. At least, I assume there are, for they are hard to pick out among some of the craven lunatics we have seen in the streets of the world these past few weeks and months.
I really shouldn’t be so hard on these people, because many of them clearly mean well. Unable – or perhaps unwilling -- to face the fact that history has passed them by, they protest war because they feel the same sympathy for the Iraqi people what they felt for the Vietnamese. The idea that a quick and decisive war would be actually GOOD for the Iraqi people is not something they can or chose to wrap their minds around. Many of these protestors were right thirty years ago. Today they are on the side of tyrants, rapists, torturers and mass murderers. Apparently, they’d rather be there than change their minds.
But there is a different class of protestor that we have seen recently, and these are not well-meaning people who only seek to avoid bloodshed. They are people like International ANSWER, supported by the Workers World Party, backed by North Korea, and these people are, to use a somewhat overused, even nostalgic phrase, nothing but lousy, stinking Commies.
You'd think I would be ashamed to use such a jingoistic, hackneyed cliché as “lousy, stinking Commies.” I am not. Here is a philosophy that has killed no less than sixty million people outright, through executions, forced starvation, Gulags and Great Leaps Forward. They have drawn us into the most filthy fights in Asia, Africa and South America, led us to sully and permanently stain our national honor fighting nasty, brutal wars in God knows how many places, and driven us to back local thugs and dictators whose only redeeming value was their promise to stop this disease from spreading.
Like Islamic Fundamentalists, they are deeply deluded people in love with a fantasy ideology that promises them revenge and the spoils of revolution, rewards that they are unwilling to work for and incapable of generating. Claiming the moral cloak of Robin Hood, these people want to rob from the rich – and keep it.


Grandfather of rock Mick Jagger didn't give no satisfaction to a Melbourne photographer who wanted shots of lubberly lips and his clan at St Kilda eatery the Stoke House yesterday.
According to the HERALD SUN, when approached for a photo as he left the restaurant, Jagger made his feelings perfectly clear to photographer Joe Sabljak.
"What are you doing? I don't care what you're doing, I don't want any photos taken," said Jagger, who was shielded by security guards.
When told by the photographer he was just doing his job, Jagger said: "Well, bugger off."
The security guard grabbed the camera and held Sabljak's hands tightly around the camera, pushing it into his chest.
In a split second the drama was over and Jagger was whisked into a waiting van.
"Don't try to follow us or else," the security guard warned Sabljak.
Fortunately, the snapper got off one shot before Jagger ordered him offa his cloud.



The criminal mind continues to amaze.
At newsoftheweird we learn of Tyrone Jermain Hogan, 20, who has pleaded guilty in Los Angeles to attempted carjacking, six months after trying to steal a van that unbeknownst to him at the time was carrying a martial arts team visiting from Florida International University. The students, said their instructor, held Hogan "like a pretzel on the ground" until police arrived.
And Edgar A. Brown, 27, was arrested in Worthington, Ohio, in January and charged with robbing the First Merit Bank; police were tipped off after Brown paid his electric bill at a Columbus store using red-stained $50 bills. [, 2-7-03] [Columbus Dispatch, 1-30-03]
Then there was the burglar who apparently broke in to the A Little Bit of Country western emporium in Mineral Wells, Texas, on Feb. 8 and was arrested shortly after the store opened at 9 a.m., in one of the state's easiest collars: He had fallen asleep on a bed in a furniture showroom. It was an interesting caper: A few coins (the only money on the premises) were scattered on the floor; he had left his gun in the store's restroom; and anyway, of all the places in town, he had picked a store owned by the wife of the Palo Pinto County district attorney. [Fort Worth Star-Telegram, 2-9-03]



A wee profit at the neddies yesterday. As mentioned earlier, we missed the start for Magic's first tip and saved our spondoola as it ran fifth. His second tip, Lethal Leigh, in Race 5, was a late scratching and his each way recommendation in the Blue Diamond, Kusi, ran second, returning $28 for our $10 each way. We live to fight another day.


Normally we eschew gags that rely on ethnic peculiarities for a punch line. You tend to to that when great grand-daddy came from the bogs of Tipperary. But then we've never settled over the wound in the old man's leg from a bullet fired by a French collaborator in Palestine in 1941 before he bolted, terror-stricken, from the spectre of 500 pissed-off Aussies with loaded 303s and Tommy guns.
So cop this, amphibian eaters:
Q: Why does France graciously plant trees on both sides of every street, road and highway in the nation?
A: So that invading armies can march in the shade.

Wait, there's more . . .

The Real Way to Spell 'Chirac' , according to NEWSMAX.
"It's not Chirac ... It's Shhh-Iraq."