Disturbing questions in the Pell case

From the evidence in the public domain before the trial of Cardinal George Pell, his conviction seemed very unlikely. A historic case, a single uncorroborated witness who was also the alleged victim. An implausible allegation of sexual attack in a most unlikely context. A number of credible defence witnesses, present at the time of one of the alleged attacks, to strongly support the implausibility argument.

“Beyond reasonable doubt” seemed a low enough bar for the defence to scale. But testimony and evidence played out in a courtroom take on a different colour when personalities stamp them. The victim’s “compelling” credibility swept aside the problem presented by implausible circumstances. For both jury and panel of appellate judges the testimony of the victim, “a witness of truth” tipped the scales against all other considerations.

Subjective weighing up is a major element in delivering a verdict. Vocal inflexion, body posture, pitch and speed of responses, impressions of sincerity or the opposite all combine to convey the jury their verdict. Usually however there is harder evidence to inform and underpin those impressions. But in cases, like Pell, where there is not, there are questions that need to be raised.

To what extent can bias, conscious or unconscious, play a part in jury deliberations? Academic disciplines have developed many controls to ensure objectivity in research and continue to refine those controls because it recognises, amongst other things, how subjectivity can distort vision and perception. We all have habitual ways of observing and judging. We all absorb prejudices from lived experience and the culture around us.

Are there sufficient controls inherent in the twelve person jury system? Has the test of time led societies to conclude that a group of twelve random but vetted peers of the accused contains the checks needed to correct bias? Are these checks deemed sufficient to withstand the impact of public opinion and expectation on a jury’s deliberations especially when it involves high profile individuals? More especially when a jury is struggling to reach consensus?

These questions matter. They matter when a jury arrives in full public sight at a verdict based on supported evidence, forensics, and alibis. It matters vastly more when everything hangs on the unsupported testimony of a single witness. It matters in a very significant way when, on grounds of compassion for the alleged victim, there is an almost complete media black out of the alleged victim’s testimony.  A more fundamental question implicit here is whether a “one size” system can reasonably be expected to deliver justice whatever the circumstances of the case.

Such questions need to be pressed because there is nothing remotely scientific about the choice of twelve rather than another number. It was chosen back in 725 A.D. by a Welsh king, Morgan of Glamorgan because Jesus chose twelve apostles. It has become largely an unquestioned norm ever since. The Ancient Greeks who developed the system had several hundred strong juries. Today, juries of as little as six are used in some US states for less serious crimes. Judicial systems also vary requirements for majorities, usually demanding unanimity for serious crimes. However, the twelve strong jury is considered the largely unexamined gold standard.

Research by eighteenth century French philosopher, Nicholas de Condorcet, concluded that a jury with six members was more likely to reach a guilty verdict where the evidence was less conclusive than a jury of twelve. This suggests that the larger the jury and the more diverse the views, the more difficult it will be to reach consensus. The harder it will be to eliminate “reasonable doubt”.

In more recent times, statistical modelling has been used to establish the accuracy of verdicts. Conclusions have proven elusive for many reasons. Firstly, actual juries work in camera so the dynamics of their deliberations can’t be monitored. The appeal process offers one measure of their accuracy. But that too is problematic because a higher court of appeal, where such is available, doesn’t always agree with a lower.

In the Pell case, it took two juries to reach a verdict. A majority of ten to two voted for acquittal at the first trial. The second trial reached the required unanimous verdict but rather extraordinarily that verdict was a guilty one.. On appeal, the most experienced and arguably the best qualified of the panel of three appellate judges dissented with his colleagues. In the light of the earlier trials, it is reasonable to ask if a different panel of judges might have reversed the decision? 

The workings of the law do not always deliver justice. Cardinal Pell has had due process under Australian law but it is indeed questionable if he has had justice. Justice is blind to partiality but the system that delivers justice must be visible and held to question and account. That justice must be done and seen to be done is a foundational principle of jurisprudence. Cardinal Pell’s trial did not deliver on that essential point.

Subjective assessment alone is inherently unreliable. Corporations as well as individuals can be captured by convincing liars. There is no need to cite examples. There are the inherent biases we all bring to listening and perceiving, whether we are hearing truth or lies. When these factors are compounded by a social climate that predisposes a jury in a particular direction, then the absence of hard, verifiable evidence should surely require a strengthening of safeguards within the system. Unanimity from a jury of twelve secured the conviction of Cardinal Pell. If unanimity from the appellate bench was required rather than a majority vote, he would now be a free man.

Cases like this throw up questions that put the judicial system on trial in the minds of fair-minded people. The jury of public opinion will always be out on the question of Cardinal Pell’s guilt or innocence not because there were strong arguments and evidence on both sides but because there simply weren’t enough of either.