June 2005

Comment

Comment

By Richard Bourke
Illustration by Jeff Fisher.

Illustration by Jeff Fisher.

I am a capital defence lawyer in the deep south of the United States. What that means is I help defend people who have been accused or found guilty of murder and whom the state is trying to execute. The crimes I am dealing with are some of the most heinous, disturbing and devastating there are. My clients are often the most hated figures in their communities, so hated that being identified with them sometimes makes me a target for hatred too. A hate that strong tends to distort things, to make people do things they normally wouldn’t dream of and to behave in ways that don’t really represent who they are or want to be.

In one case I worked on virtually a whole family applauded and cheered as they watched a man killed. They were allowed to witness his execution because the man had killed their loved one. I don’t believe they are bad people. I also don’t believe they are the kind of people who would applaud and cheer while someone is killed, or who would think people should applaud and cheer while someone is killed. I am sure they would not condone the pain caused to a mother whose son was killed in front of her while others applauded and cheered.

But they did applaud and cheer. That is what hate can do to you. Fear does the same thing.

People hated and feared Ryan. When he was 17 he was accused of killing a beloved local shopkeeper who had been gunned down during a botched robbery. People hated and feared Ryan enough for him to be found guilty beyond reasonable doubt of murder and sentenced to death, even though he was actually innocent. He had two lawyers, an investigator, months of pre-trial hearings, a full trial and an alibi. But two eyewitnesses to the killing steeled themselves against any doubt they may have had and swore that it was definitely Ryan who did it.

The eyewitnesses were wrong. They didn’t lie. They were just wrong. After four years on death row, DNA on a ski mask used in the robbery helped prove that Ryan didn’t do it, and now he is free, trying to put back the pieces of a life devastated by the mistake that was made.

Dan is out now as well. Like Ryan he was sentenced to death after he was wrongly identified as the killer. Unlike Ryan it took him twice as long – eight years – to secure his release. Disappointingly, the Federal Bureau of Investigation knew he was probably innocent all along. One of their long-term informants, a reliable source whose testimony had proved truthful many times before, told them Dan didn’t do it and named the man who did. The name he gave was the same man Dan and his lawyers were saying had done it.

So the FBI knew Dan was probably innocent but didn’t tell anyone. Dan was hated or feared enough that they let him get sentenced to death and spend all that time in prison for a crime he didn’t commit. Even when they were forced to hand over their paperwork the FBI tried not to tell what they had known all along. Instead they supplied a document with blackouts for “classified” information:

The source further advised that Daniel Bright, aka ‘Poonie’, is in jail for the murder committed by ——

Finally a judge told them to stop messing about and to hand over the full document. Dan’s conviction was overturned and the prosecution dropped all charges.

The sobering thing about Ryan and Dan’s cases is they were sentenced to death even though they were part of a criminal justice system where there is adversarial testing of evidence, lawyers for both sides, public trials, impartial jurors, unanimous verdicts and a requirement of proof beyond reasonable doubt. People hated and/or feared them enough to want them to die and to make it so that would happen.

In 2002 the US began building Camp X-Ray, stage one of the sprawling interrogation and detention development at downtown Guantanamo Bay. Like a number of other capital defence lawyers, I got involved immediately. I am a very small fish so I got involved in my own very small way but, like the others, I got involved because I knew only too well what could happen to people who were as hated and feared as the prisoners at Guantanamo.

It is now notorious that on Guantanamo Bay US forces and various levels of George W. Bush’s administration have participated in the abuse of detainees with near impunity. They have set up terror tribunals stripped of many of the central planks of our long-established understanding of due process. It is also now notorious that the reason they set the whole thing up on Guantanamo Bay was to avoid the restraint imposed by the US Constitution and, in particular, the Bill of Rights. They have argued throughout that they need not provide their prisoners with the sort of checks and balances that Ryan and Dan received because there is no Bill of Rights on Guantanamo Bay.

In 2004 the Australian government announced its position – that the Guantanamo trials accorded with accepted principles of criminal justice. Not even the US government thought that; that’s why they were occurring on Guantanamo Bay. Six months later the Australian government went on to announce that it had always known the tribunals would accept and rely on evidence obtained through torture. Apparently torture was one of those “accepted principles of criminal justice” they were talking about.

When you hear things like this, you cannot help but reflect on the fact that just like Guantanamo Bay, Australia doesn’t have a Bill of Rights. America has one, Canada has one, New Zealand has one and Britain now has one through the European Charter. But Australia and Guantanamo Bay don’t have one.

People often say we don’t need a Bill of Rights. At one time I said the same thing. I believed our system – built on honour, decency, constitutional convention and the separation of powers – protected the principles we hold dear. There was no need to write them in stone. To do so would only create a tool for mischief – the lawyer’s picnic theory.

Of course, we don’t really have a separation of powers. The Australian parliament, when completely dominated by the ruling party, is almost completely useless as a mechanism for holding the executive accountable, and so compares poorly with the British parliament or US congress. Our separation of powers consists of a supine legislative branch that spends most of the year in semi-retirement and a judicial branch that is largely toothless in the face of a determined executive.

The truth is that with a parliamentary majority and control of the Senate, which is exactly the situation from July 1 onwards, the Australian government can do pretty much anything it wants. The Australian government could legislate to create its own Guantanamo Bay except that, unlike the US, it wouldn’t have to go offshore. (This might, in light of Australia’s present treatment of refugees, seem a blindingly obvious statement.)

Having now worked in the US system, I am hardly America’s greatest fan. But I have seen that a Bill of Rights is not the lawyer’s picnic I had been led to believe. A Bill of Rights is what happens when a community commits itself to some of the bedrock principles that define us. Without it, it is too easy for our country to end up behaving in ways that don’t really represent who we are or want to be.

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