Proof magazine: Un-Making a Murderer
Sophie Walker explains why you’d be better of being wrongly convicted in New Orleans than New Malden or Newport. This article comes from the latest Proof magazine, issue 2 – you can order it here
I heard my first criminal appeals case file before I saw it: the rattle of the trolley coming down the corridor piled high with boxes. Each box contained a set of bound documents: a full transcript of a three-month trial. It started with the pre-trial hearings and ended with the sentencing remarks.
The transcript included every jury note, every ruling made by the judge and the many, many errors the lawyers identified to the judge during the lengthy summing up. Over the next few weeks, I went page by page, creating a digest of what had happened. When it came to the summing up, I compared the judge’s version of what each witness said alongside the transcript of the witness’s evidence and made notes on everything the judge missed out or misrepresented. From the digest, I then identified possible grounds of appeal.
You might have worked it out by now. But I was not working in the UK at the time, but in Alabama for a small death penalty charity. Throughout the US, where a defendant is convicted of a serious criminal offence, a full transcript of their trial is prepared and made available for free, even in the poorest states.
The situation in the UK is very different.
There was no rattle of a document-laden trolley when I first started working on a criminal appeals case from my desk in Holborn. Instead I made phone call after phone call trying to piece the case file back together.
I started with the client and asked if he had any case papers with him in his prison cell. He didn’t have any but thought his sisters might have a transcript of the summing up. After many calls to my client’s four sisters, the conclusion was they had never seen a copy of the judge’s summing up of his trial. I then called the trial lawyer. The solicitor who handled the trial had left the firm. The paralegal said she would look in storage for the files. She wasn’t sure if they had ordered a transcript of the summing up.
The process of requesting a file from storage would take one to two months. In the meantime, I called the transcription company to see if they would sell me copy of the summing up. The charge was around £4.50 a page if the summing up still needed to be transcribed and around £100 for a copy of a previously transcribed document.
Luckily, I am able to apply to the Legal Aid Agency to cover the cost of the limited summing up transcript, but those ineligible for legal aid or litigants-in-person are left footing a bill that can rise to hundreds – if not thousands of pounds, especially if they need more than the summing up.
When the trial solicitors’ file finally appears from storage, it contains just one box of documents. The rest is missing. Two months on, relieved at having at least some witness statements to read and the summing up, I commence review of the papers.
In the time that it would take me to review and draft grounds of appeal on a US criminal case, I am just getting started on substantive work in the UK.
Policy of destruction
The current practices of the storage and destruction of court documents in the UK poses a major impediment to access to justice. How do you know what went wrong at trial if you are unable to access your court file or legal documents?
Even in the case of defendants convicted of the most serious of offences and sentenced to life sentences with a 30 or 40-year minimum tariff, trial representatives will often only keep the case papers for six years before destroying it. Private transcription companies keep an audio recording of the trial for five years. If transcripts are not ordered within this time, the recording will be destroyed and the chances of a miscarriage of justice being overturned becomes ever more remote.
Take prisoners convicted under the legal doctrine of joint enterprise, which the Supreme Court recently ruled has been misapplied for the last 30 years. Those whose cases happen to be more than six years old will most likely find their key trial records destroyed, hindering their ability to appeal their convictions and sentences in light of the law change.
In our current system, it is private companies who cash in by charging high rates of transcription and saving on storage costs by destroying data after a set period, and its prisoners, litigants in person and the public at large who have everything to lose.
The UK’s failure to keep up with its American cousins when it comes to transparency in its justice system means the riveting Making a Murderer could not have been made here.
The key to the series’ success was the amount of legal information viewers had access to. From videos of police interviews to crime lab reports and examinations of alleged crime scenes and court hearings, this information was preserved and accessible to the filmmakers decades after its creation.
Most powerful, perhaps, were the recordings played of Avery speaking from behind bars, professing his innocence and talking about his experience as a prisoner maintaining innocence. This kind of openness is simply not on the cards for British journalists, who find it difficult to get access to prisons, let alone individual inmates.
British Steven Averys exist. It is just that our criminal justice system doesn’t allow us uncover or tell their stories to anything like the depth reached in Making a Murderer. The result is lower awareness amongst the public that the system can – and often does – get it wrong.
New Orleans – or New Malden?
British justice is often described as the best in the world, and certainly better than what we see in America’s Deep South. We are rightly shocked at the racial bias, intense politicisation and extreme sentence lengths prevailing there. However, when you describe the tools available to those challenging convictions here in England and Wales to those doing appeals work in the Deep South, they are equally shocked.
Richard Bourke, attorney and director of the Louisiana Capital Assistance Center, which conducts both death penalty and non-death penalty appeals cases, showed disbelief that lawyers in England and Wales frequently rely on the judge’s summing up – and not the full trial transcript – to challenge convictions.
‘The idea that you can do an appeal relying on the judge’s summing up is completely absurd,’ Bourke says. ‘I actually find it hard to believe that it is true that it occurs.’
Calvin Duncan, a native of New Orleans who spent 28 and a half years in Louisiana’s notorious Angola prison for a murder he did not commit, was similarly critical, arguing: ‘That just wouldn’t be an appeal at all.’
Duncan, who was a ‘jailhouse lawyer’ for 23 years, highlights the problem with relying on one individual’s interpretation and summary of a trial, even if that person is a British judge, pointing out: ‘You and I could hear the same testimony and come back and reach different conclusions as to what we heard and we’d write it differently.’
In Louisiana, the right of poor defendants seeking an appeal to a free transcript of their trial goes 30 or 40 years, says Bourke, who adds that in the event of a funding crisis this would never be taken away. Why are we still waiting for British law to enshrine the importance of access to court records?
‘You can’t conduct an effective appeal without the transcript, and if the costs of the transcripts are a problem for the justice system, then the justice system needs to fix that,’ Bourke argues. ‘But the solution is not to deprive poor people of the right to a fair appeal and of the basic tools of a review of their conviction.’
When a man who spent nearly three decades falsely imprisoned by the state of Louisiana and a battled-hardened death penalty lawyer find aspects of their legal system preferable to ours, we should be deeply concerned and spurred into action.
At the Centre for Criminal Appeals, we think it is time that any one accused or convicted of a crime has access to the information needed to examine the evidence against them, regardless of whether they have thousands of pounds to afford a transcript. Hence the need for the Open Justice Charter, which outlines the steps we need to take to stop British justice lagging behind even the Deep Southern states, which have provided complete trial transcript since 1956.
This Charter outlines Open Justice measures that we believe are essential for achieving accountability within the system.
Until these are in place, our founder Emily Bolton, who worked on miscarriage of justice cases in the Deep South for many years before setting up the Centre, maintains she would rather be wrongfully convicted in New Orleans than New Malden or Newport. ‘Judge’s decisions are limited by the information placed before them by lawyers. In this country, the lawyers can’t get the information. This means the judges’ hands are tied – they cannot deliver true justice. Its time to do something about this, to empower our courts to hold the system accountable, and the Open Justice Charter is the first step on the road.’
Sophie is a pupil barrister at 1 Pump Court. She was formerly director of the Centre for Criminal Appeals and has worked at Reprieve UK assisting European nationals facing execution in the US