This web page contains two articles by Andrew Green, the first published in CONVICTION Newsletter no.16 and reprinted in the newspaper for prisoners, InsideTime.

Following the enormous response to the first article, the second article was published in CONVICTION Newsletter no.18.

When your brief tells you "Leave it to me - you’ve got nothing to worry about", that’s exactly the time to start worrying

LAWYERS WHO LET YOU DOWN by Andrew Green

  You probably know the sort of lawyer we’re talking about - the one who assures you the evidence against you is rubbish, it won’t standup in court - you may well have had just such a brief to handle your case, and now you (or your brother or sister or son or daughter, or your best mate) is doing a long stretch at the taxpayer’s expense - even though you haven’t committed the crime for which you were convicted, and the evidence against you really was rubbish.

  So you didn’t bother to find witnesses who would support your case, and you didn’t try to tell your counsel how to run it in court. And now the lawyers tell you that, because these witnesses were available at the time of your trial, you can’t call them for your appeal.

  We don’t agree with them.

  Another problem is the committed brief who listens to everything you say, who is 101% on your side, puts "you in the driving seat", and then doesn’t come up with the goods - when it comes to cross-examination of witnesses, pulls his or her punches, or when a point has to be made that the judge doesn’t like, then the brief makes it clear that this is just a point on which the client insists, not something counsel agrees with.

  And when it comes to the appeal, somehow points like this and perhaps a lot of other things you thought were going to be included, have been dropped, because your counsel thinks that, although these are really important points, the judges just won’t accept them as grounds of appeal, or they are doomed to fail, and so it would be best not to put them in....

  We don’t agree that counsel should prejudge what the Court of Appeal should or should not hear.

  Lawyers in general are skilled and know what they’re doing. We don’t come across many cases in which the lawyers were "flagrantly incompetent" - that is, their work was so bad that this in itself can form a ground of appeal. What we do find in fit-up cases, time after time, are lawyers who were over confident; who did not follow up every lead, or call alibi or character witnesses, and who did not cross-examine every detail of what prosecution witnesses said - failing to challenge police accounts, and relying on what seemed to be a poor prosecution case on paper, to fall apart of its own accord when it came to court.

  But we know only too well that what looks bad on paper can be made to sound convincing to a jury.

  When in due course the case comes before the Court of Appeal, you, the appellant, may have decided to use different lawyers. Perhaps with help of organisations like ours, you’ve found a radical, committed lawyer. But is it already too late? How can your new brief explain why witnesses available at the time of the trial, weren’t called? How can she or he bring out the evidence that should have been extracted from prosecution witnesses, but wasn’t? How can she or he obtain legal aid for investigations which solicitors could have carried out in preparation for the trial? How can she or he criticise the way the judge conducted the trial (for example, admitting prejudicial evidence), when no protest was made about it at the time?

  The answer to all of these questions is that the trial defence lawyers have to be criticised. But all lawyers are very, very reluctant to criticise other lawyers.

  But it’s not so simple. Lawyers tell us that the Appeal Court won’t treat as "fresh evidence" anything that was available at the time of the trial - yet when this is put to the test, appeal judges seem quite willing to hear such evidence. Take the case of Kevin Callan, who was convicted in Manchester of murdering his four-year-old stepdaughter on the evidence of two pathologists who said she had been shaken her to death. If Kevin could, from inside Wakefield prison, find the expert evidence that proved he could not have killed his stepdaughter, and so should not have been convicted of murder - so, much more easily, could his trial solicitor have found such evidence. Once it was before the Appeal Court, the prosecution had to give in and Kevin walked free on 6 April 1995.

  Kevin’s case was exceptional. But even when the lawyers are persuaded to let the Appeal court hear evidence available at the trial, it has to be supported by criticism of the trial lawyers who failed to introduce it. Look at the case of John Brannan and Bernard Murphy. Bernard was involved in an argument in the crowded Express Club in Manchester with Michael Pollitt, who pulled a gun and threatened him and his friends - or so nine witnesses have said. John drew a knife in order to disarm Pollitt, but was pushed against him, and the knife went in, killing Pollitt with a single blow to the heart. As the trial judge said, if Pollitt had a gun, then Brannan was acting in self defence. The appeal judges agreed to hear the evidence of three witnesses who could have come to the original trial, who said that they saw a gun in Pollitt’s hand, and that he tried to fire it at Brannan. The judges let John himself give evidence, even though he had remained silent throughout his trial and during police questioning. And then they dismissed John and his witnesses as liars.

  Before doing this, the judges carefully checked: did his appeal QC imply any criticism of trial counsel? No. And they even asked John: was he satisfied with how his lawyers conducted his trial? Yes, he said. And so they could draw the conclusion that, if the lawyers were not negligent in seeking out witnesses in preparation for the trial, if they had not given him bad advice when they recommended that he should not give evidence himself or call any witnesses in his own defence - then the only explanation of the fresh evidence before them was that all the trial lawyers had done their work properly, and John and his friends had subsequently conspired to tell lies to the Court of Appeal.

  The problem is not that the Appeal Court will not hear evidence that could have been heard at the trial. The judges probably want to hear it - to know the full story. The problem is that it must be accompanied by criticism of the trial lawyers, to explain why it wasn’t heard at the trial. Otherwise, it’s open to the judges to say it was concocted afterwards.

  The problem doesn’t just concern fresh evidence. Some fitted-up prisoners want to put very challenging cases to the Appeal Court. They want to say that their trial lawyers neglected to call the witnesses they wanted, or to put their case as they wanted it put; they want to say that the police were up to all sorts of tricks to make themselves look bad in the eyes of the judge and jury; they want it to be made clear that it wasn’t their fault that the case wasn’t run as they wanted - how were they to know how a serious criminal case should be conducted? They’d never been charged with murder, or armed robbery, or section 18 wounding, or whatever, before. So when they heard and experienced solicitor or senior counsel say, "leave it to me, you’ve got nothing to worry about," then they thought they were safe. Now they know better, and they want all the neglect and failures and tricks to be publicly exposed.

  Barristers - whoever they are - don’t like this sort of thing. They tell you the appeal judges don’t want to hear it, and won’t grant an appeal on these sorts of grounds. They are probably right.

  But that doesn’t mean we shouldn’t ask them to hear it. If your Grounds of Appeal contains serious allegations about police or lawyers, then it may be that the Court of Appeal will feel it has to grant you a full appeal, whether or not the judges like what the grounds allege. And that at least would get you leave to appeal and a hearing before the full court. Once you’ve got that, you can assemble your fresh evidence complete with all the logical reasons as to why you weren’t able to present it at your trial. You might be in with a chance.

  How do we get our friends the lawyers to present grounds to the Appeal Court that are challenging, radical - even political (if that’s what we want)?

  We have to find a way of making it possible for them to do this. It’s no use just insisting that lawyers do what we ask of them. They will simply refuse, and carry on the game of second-guessing what the appeal judges are willing to hear. We need to be strong enough to command the allegiance of lawyers - so that their first loyalty is not to the courts (to the criminal justice system, to the state that puts up the money to pay them), nor to their mates - the other lawyers, judges, even police officers that they meet day after day - but to their clients.

  We need to work out how to take full advantage of this expensive legal service, provided by the state and paid for by the public, which so often allows innocent people to be sent to prison and fails to get them out again.

 

the second article -

  Lawyers DID let you down
by
Andrew Green

  From CONVICTION newsletter no. 18

  Defence lawyers play a major role in causing wrongful convictions. That’s not just our impression, but the experience of a large number of the prisoners who say they’ve been wrongly convicted. Of course it’s not defence lawyers who fit up people in the first place. The major share of the blame lies with the police. But the very people who are paid - and paid well - to protect you from being fitted up, the people you are forced to rely on as your defenders, often do little to help you and sometimes make the situation worse.

  In our Newsletter 16 we published an article ‘Lawyers Who Let You Down’, and this was reprinted in InsideTime, in December 1996. We said ‘When your brief tells you "Leave it to me - you’ve got nothing to worry about", that’s exactly the time to start worrying.’ We referred to the sort of lawyer ‘who assures you the evidence against you is rubbish, it won’t stand up in court - you may well have had just such a brief to handle your case, and now you are doing a long stretch at the taxpayer’s expense - even though you haven’t committed the crime for which you were convicted, and the evidence against you really was rubbish.’

  We wrote:

  lawyers in general are skilled and know what they’re doing. We don’t come across many cases in which the lawyers were "flagrantly incompetent" - that is, their work was so bad that this in itself can form a ground of appeal. What we do find in fit-up cases, time after time, are lawyers who were over confident; who did not follow up every lead, or call alibi or character witnesses, and who did not cross-examine every detail of what prosecution witnesses said - failing to challenge police accounts, and relying on what seemed to be a poor prosecution case on paper, to fall apart of its own accord when it came to court. But we know only too well that what looks bad on paper can be made to sound convincing to a jury.

  We didn’t ask for any comments, but a lot of prisoners - nearly 200 - felt moved to write to us in response to this article. Nearly all said they were wrongly convicted, and they were hoping we could help them. Many of them made comments like ‘When I first read your article … I thought "How has this man written about my case without knowing me!"’ and ‘Hooray, I say, I’m not alone. I feel that very article was written for me.’

  It was as if many fitted up prisoners could not believe what had happened to them, and were relieved to know that they were not imagining it, because someone outside was prepared to name the problem. Some expressed gratitude: ‘may I thank you for having the guts to stand up and be counted.’ Others stated: ‘You have hit on a taboo subject, a practice that has been going on for years and to my knowledge you are the first person to bring it to light,’ and ‘at last someone has spoken out about what really does take place in court cases … Once you are in the legal system you are systematically fitted up by people you put your trust in.’ An unfortunate Czech national wrote: ‘having had the experience of [my solicitor’s] representation, I not only had no faith in them, I fully expected to become liable for Britain’s national debt.’ He is serving 26 years for allegedly importing drugs.

  Some prisoners sent detailed information about their cases, and we tried to make helpful comments in some of our replies. But for a small organisation it was difficult to cope with this deluge of letters and case papers, and we have only been able to get involved in two or three of these cases. However, from the mass of detail some points stood out.

  (1) Defence lawyers frequently failed to listen to their clients or follow their instructions.

  My QC and barrister totally went ahead and did their own thing in court when I specifically instructed them to the contrary … My legal reps told me I did not need any other defence apart from myself as the prosecution had to prove I did it!! I told them I could prove I did not and by doing so that was a battle won!! They did not want to know and went ahead with the trial… (10 years, attempted murder).

  (2) Defence lawyers failed to call defence witnesses. In one case, the defence QC refused to call an important witness; the prisoner wrote to us:

  When I stated that I wished to give evidence I was told that it would "prejudice my trial" therefore I accepted what my legal representative told me. I was unaware regarding legal matters and I have never before been the subject of a trial (life, murder).

  In other case, a key prosecution witness failed to come to court, so defence counsel assumed his client would be acquitted and did not insist on attendance of other key police witnesses, or call the defendant to give evidence. Afterwards the defendant’s solicitor told him his barrister had ‘sold him out’ (6 years, possession with intent to supply class A drugs).

  Another prisoner wrote:

  The evidence against me was flimsy to say the least, yet my defending counsel Mr X Q.C. took it upon himself to discharge all my defence witness's without giving valuable evidence to the judge and twelve members of the jury, one of them being a paediatrician who could have proven the allegations to be untrue, how can any accused person have a fair trial without any defence witnesses? (12 years, rape).

  The people who wrote to us were complaining not so much about counsel not calling character witnesses or friends who could provide alibis which weren’t likely to be credible, but important independent or police witnesses, and experts who had been commissioned to produce reports in support of the defence. Not only were defendants puzzled: ‘My defence counsel decided without consulting me not to call witnesses … the jury enquired why my witnesses weren’t available’ (9 years, rape).

  (3) Counsel failed to cross examine adequately.

  The QC I had was a waste of space at my trial and I honestly believe I could have done a better job myself. … My QC didn’t even cross examine any prosecution witnesses hardly, only when I told him to. The main witness had made 5 statements over 4 months and kept changing them to incriminate me … The QC didn’t even cross examine him’ (10 years, GBH).

  There was no conference before or during my trial to discuss evidence with the barrister. My barrister let the prosecution change evidence to different times of the year, without even asking questions on the evidence (7 years, indecent assault).

  In other words, prisoners were not complaining that unfounded allegations were not put to prosecution witnesses, but that counsel were not using sound evidence that would have enabled them to discredit both prosecution witnesses and the truth of their evidence.

  As a result of poor preparation in important areas, defence counsel Miss X Q.C. missed obvious points in cross examination … [and] failed to call witnesses whose evidence was extremely important to my case. … Counsel’s attempt to "keep things simple" left me with no defence. There is an array of extremely compelling evidence available, which was not used during trial. … I have clear evidence which irrefutably proves that the complainant has told a tissue of lies. The evidence to which I refer is available, in the main, within the statements (Rape).

  One prisoner’s wife wrote to say that the supposed victim was not cross examined to bring out the simple fact that she had never alleged she was raped - it was only the police who said a rape had taken place. Her husband got 8 years for rape.

  (4) Defence lawyers failed to present cases fully. One prisoner wrote that his counsel

  failed to point things out saying that the jury need to work things out for themselves and that the wasn't going to state things or spell something out, he would merely imply and hoped the jury would pick things up (3 years, ABH).

  In reading these letters, we are acutely aware that they come from people who are deeply disappointed, who feel betrayed not only by their lawyers but by the whole criminal justice system of which their lawyers are a part, whose lives have been destroyed and who may be looking for someone to blame for something they have brought on themselves. And perhaps they make these allegations against their lawyers out of ignorance, because they don’t understand the rules of evidence which may have prevented their lawyers from calling evidence that seemed important to them, and they don’t understand courtroom tactics - they don’t know what might look really bad and turn judge and jury against them. These responses to prisoners’ allegations might in some cases be justified.

  But in other cases, such as those we have quoted, the allegations are based on strong, well supported evidence and argument. If they’re right, then quite possibly all the others could be right. There are good reasons for taking these allegations very seriously.

  (1) It’s well know that lawyers are always working under pressure. Barristers take on cases at the last minute because other cases overrun and counsel who have previously been briefed can’t make it to their next case; the way in which they’re paid means that they don’t benefit from doing thorough preparation of cases (they are paid a lot anyway, but lawyers are notoriously greedy people); it can be difficult to get legal aid for independent investigations and reports. Since lawyers are paid whatever the results they get, there is every incentive to simplify defence cases - even if that means losing them.

  (2) When it comes to tactics, do lawyers really know best? Defendants are told they can rely on the knowledge and experience of lawyers, although the lawyers do not have to rely on it themselves! ‘My barrister told me he would fight my case as I wanted. He would follow my instructions etc. On the other hand he said that if I wanted he would pursue the case in a manner which he felt was the best, in view of his experience. The solicitor also suggested that everything be left in the "expert’s" hands. "However if the verdict goes against you, don’t say I wasn’t doing what you wanted, and instructed me to do,"’ counsel told his client, later convicted of indecent assault.

  But what exactly is this knowledge and experience of courtroom tactics based on? Certainly not on any systematic knowledge or research - there’s no published research on the subject - but on gut feeling and anecdotes, stories passed around in robing rooms. All their experience comes from cases in which the same financial and bureaucratic pressures have applied. In other words, they think cases should be made simple because the lawyers who came before them and passed on their experience made cases simple, and they all left out arguments and didn’t call witnesses because it made life easier for them and they made more money that way.

  (3) Compare this really very poor quality knowledge and experience with what their clients know. Defendants may not know much about the law, but they are usually experts on their own cases. But they’re told to ‘take a back seat’. A man serving 7 years for GBH said his barrister told him that the prosecution had ‘a rubbish case, oh you’ve got nothing to worry about,’ and failed to his follow instructions, doing nothing to ensure the attendance of two doctors who could have given important evidence in support of his case. Another prisoner reported: ‘the brief at trial said to me numerous times … "the jury will believe you, not the [prosecution witnesses], nothing to worry about"’ and so did not call as a witness a highly-regarded expert - whose report for the defence said he did not believe a sexual offence (even attempted) ever took place. At an earlier hearing he was given bail on strength of this report, but it was not used in his trial! (10 years, indecent assault)

  One prisoner wrote that he thought the pre-trial depositions show that the key prosecution witness was responsible for the crime. ‘When this young man gave evidence, my lawyers did not point out all the facts which I felt were very important to my defence. When I asked why, they told me the "rule of thumb" was to never ask a question unless you know the answer. I was not happy with this, and told them we had not done enough with the information at hand.’ Following the application of this ‘rule of thumb’ - typical of the simplistic platitudes of counsel - the client is serving a life sentence for murder.

  In many other cases, lawyers don’t let their clients see evidence or potential evidence in advance of their trials. Eventually files of papers they’ve never seen before are delivered to them in prison. A man convicted of manslaughter found his solicitor had not shown him all the depositions - the sworn statements showing what witnesses are expected to say in court. A man convicted of murder says his solicitor showed him only 10% of the ‘unused material’ (documents produced in the course of police investigations, but which the prosecution does not intend to use).

  So lawyers routinely ignore valuable sources of information and understanding of the case. They regard clients as troublesome, and find ways of excluding them and their friends and families from affecting the way they conduct cases. A letter from a prisoner’s mother describes a common tactic:

  Dean’s solicitor said to me, "Dean will walk away from this." … During the trial we were told we would be called as witnesses so neither my husband, my daughter in law or myself were allowed in the court room. Towards end of trial they were told it wouldn’t do any good to call us as we are his parents and the jury probably wouldn’t believe us.

  Dean was convicted of murder.

  ou don’t have to spend much time in a crown court building to reach the conclusion that there is a vast social gulf - an obvious class difference - which separates lawyers and their clients. Barristers, solicitors, police officers and clients all wear their distinctive uniforms, and it’s the clients who are the odd ones out. The rest have much more in common: for them the court is a workplace, they are familiar with it, and they mix easily with each other. They all generally believe the clients, or defendants, to be guilty. That’s not a conclusion found in the letters we’ve received - there is research on this topic (for example, Mike McConville et al., Standing Accused, Oxford 1994). For the people working in the criminal justice system, what defendants and their families know or think is unimportant, because they are unimportant. Lawyers may sometimes work hard at testing evidence, but at the end of trials they depart to collect their fees while their clients (more often than not) go to prison. No wonder prisoners regard the legal process as a game in which the players have nothing to lose, while defendants’ whole futures are at stake: ‘the legal people play games and my family and I are the losers’ (2 years, kidnapping).

  Or as a conspiracy: ‘the customs, the prosecuting counsel, the judge, my barrister and instructing solicitor all conspired to convict me’ (importation of cannabis). No wonder prisoners become clinically depressed and paranoid: ‘I’m on medication, it’s a nightmare…’ (murder).

  I’m writing to you to beg you to help us live our normal lives once again … I want you to wake us up from what at the moment seems like a horrible endless nightmare. … I get so upset and emotional over all this, that whenever anyone talks to me about it I cannot control myself and I just burst out crying, I can only beg you to help me, and my family please (4 years, indecent assault).

  So our conclusion is, lawyers really do let you down, frequently. All of them.

  What do you do when you find out that the person defending you is not a solicitor but a solicitor’s clerk, and the QC and junior barrister are the same ones [used by] the previous solicitor you sacked because they made a deal with the prosecution counsel to get you to plead to manslaughter and receive 7 years even though you’re innocent. No appeal was put in because the ‘solicitor’ was not at the Crown Court, and he refuses to discuss anything with us. Complicated??? But true. The trial lasted 4 days and the ‘solicitor’ did not attend once. We have never met him and we do not know what he looks like

  wrote the mother of a man doing life for murder.

  P

  What do you do? You try to get your case before the appeal court. But the problem - and this is a major problem for the work that conviction tries to do - is that the failures of defence lawyers have already sabotaged the appeal. One would-be appellant has been trying to find lawyers to mount an appeal, but is always being told: ‘although the CPS [Crown Prosecution Service] concealed fingerprint evidence and used hearsay evidence, the fact that your trial barrister didn’t challenge it at your trial isn’t a reason for an appeal’ (10 years, armed robbery). A barrister advises that ‘opportunities were missed’ in the trial, but there are no grounds of appeal (2 years, attempted kidnapping).

  Both my QC and judge presiding allowed two CPS main witnesses to lie, even though it was proven they lied in court by actual forensic evidence… Nearly two months after my conviction my solicitor came to see me and his appointment was for 1.45p.m. I wasn’t told of the visit until 2.30p.m. I had my folder containing my studies and ideas, all facts. The stress was so acute. I said I didn’t want to see him. But eventually I went in private visit room. But I couldn’t believe it. My solicitor said, "I need new evidence", obviously making it clear that he is saying "Hard luck". That isn’t the way justice is given, is it? I now haven’t got a solicitor… (murder).

   

  During the time I have been in prison I have seen a number of solicitors, 7 in all. All of who have stated that I have been set up for the crime and also that there’s a lot of evidence not been submitted at my trial on my behalf.

  But none of them were able to help this man, serving 9 years for robbery. Even when a case reaches the appeal court, counsel remain more concerned about their own interests than their clients’: ‘counsel promised to challenge PIIs (evidence withheld ‘in the public interest’) at appeal, to show the police were guilty of perjury, and say the judge misdirected jury - but he failed to do so because he feared it would damage his credibility’ (conspiracy to grow cannabis with intent to supply, possession of firearm).

  In order to put evidence to the appeal court which was available for the original trial, but not used by the defence, it’s necessary to give a reason why it was not used. What explanations can appellants give? In all these cases, it’s obviously due to the laziness, incompetence or indifference of trial lawyers. So if this is the only explanation available, you have to find a lawyer brave enough to criticise her or his fellow lawyers. And when you do find one of these rare individuals, they’re likely to be stamped on by the appeal court. Heavily - as in the case of Geoffrey Ashman, whose appeal against his conviction for attempted murder (10 year sentence) was based on claims that his trial counsel did not follow instructions from his client and his client’s solicitor. It provoked the following comment from Lord Leggatt: ‘The vogue for criticism of the performance of counsel at trial by those who were not there is to be deprecated.’ (If only there were such a ‘vogue’!)

  There is, perhaps, a little light at the end of this long dark tunnel. On the front page of this Newsletter [18] we quote the answer obtained by Dorothy Pountley from the CCRC: ‘If the CCRC found the [unused trial] evidence should have been used, and could have been used, then it could be put forward to the Appeal Court as new evidence.’ Let’s hope that the CCRC will succeed where the lawyers have so dismally failed.

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