Sentencing the woman to life imprisonment, the presiding judge, according to the Independent, said: “The plain facts of the matter is that you have taken the lives of two vulnerable and defenceless babies.”
For a woman who has lost her two babies in an appalling turn of fate, what could be a more crushing and condemning statement – a final, utterly cruel, twist of the blade?
There’s a troubling subtext to such unequivocal condemnations. A process has concluded in a finding – no more or less. Our processes are inevitably flawed and subject to error; human intellect frail and easily misled. There’s a gratuitous and self-righteous arrogance in the ease with which we seek to tidy away the fraying edges – any reassuring narrative will do.
On this occasion, the plain fact of the matter was, that there were no plain facts offering conclusive proof. In actual fact the only substantive evidence indicating innocence had been overlooked. Rather, and however well informed, there was merely assumption, opinion and dubious inference.
The woman endured three years of imprisonment and emotional abuse before being released on a second appeal. Within four years she had died. The case is well aired in the public domain, and it feels unnecessary and inappropriate to dwell on the individuals and personalities involved. This was a terrible tragedy for all concerned and, with recent experience, I can to an extent share in the sheer disbelief and utter despair which confronts those abandoned to mindless denunciation. There is nowhere else to turn when the institutions of state fall prey to human frailties. A shocking realisation that there are no grown-ups keeping an eye on things and all we have are the games we play.
I wouldn’t presume to comment on the medical discoveries. It’s the journey from these factual observations – some consistent with, even indicative of, maltreatment; but equally, not inconsistent with alternative explanations – to formal and unreserved vilification as a child killer with commitment to life imprisonment, that troubles me. This is a destination reached, as was so well illustrated, by way of a course lined with the pitfalls and traps endemic to human perception; the lure of a destination so strong that even the exalted brightest and best will fall prey.
A good starting point might be the jury. The final decision left to the impartial deliberations of twelve of your peers. An unrealistic expectation of equitable outcome – every juror carries an inevitable burden of bias, is subject to group behaviour dynamics which favour conformity and quite conceivably is as susceptible to logical fallacy as were, on this occasion, so many of the protagonists.
There’s also little expectation that any is equipped to assess the validity of the medical facts and findings. Indeed, there are sound arguments to exclude such extraneous expertise, Consequently any conclusion will primarily rest with the assumptions and deductions as presented and so coloured by delivery. On this occasion an expert witness for the prosecution employed a particularly compelling analogy from the horse racing world to (erroneously) demonstrate the extreme odds against the deaths being attributable to other than culpability. Anecdotally this vivid and accessible device was a persuasive factor in a majority finding of guilt.
Perhaps a jury should have access to detached guidance on logic and reasoning? Surely an essential capability for sensible decision making? A clarity of understanding untainted by the adversarial thrust and parry within the courtroom could only improve the quality of outcome and might well have prompted some more searching consideration here.
Of course, there’s little scope for a jury when evidence isn’t available. It was the discovery of inexplicably withheld bacteriology test results showing a presence indicating natural causes that prompted the second appeal.
But before this, and rejected at the first appeal, there was recognised disquiet from various sources in regard to the statistical reasoning which presented such a damning case for guilt.
These originated with a professor of paediatrics – a highly respected expert witness for the prosecution. His involvement with a study underwrote a contention as to the statistical probability of natural cot death in a particular profile. Although the finding for one instance is open to some question, it was his extrapolation to the extremely unlikely chance of two in one family, illustrated with the colourful analogy, that caused such concern. Without demonstrable independence, the chance of a second event is arguably more probable and certainly not to be calculated by squaring the chance of the first.
This fairly obvious fallacy was compounded by several deficits of reasoning. Most importantly; if a particular ground for innocence is found to be unlikely, the alternative does not automatically default to guilt. The probability of a particular explanation is not the probability of innocence although it might well have appeared that way to the jury. It is also meaningless without a comparative calculation for the probability of guilt. Finally, the incidence for a group is not necessarily a predictor for a particular instance.
These are recognised errors of reasoning and understanding which may well have contributed to the Home Office pathologist changing his finding of natural causes for the first death, to one of murder in the light of the second. A change of mind apparently due to other than purely medical grounds. I gather that it was this individual who failed to disclose the bacteriological findings.
All this might be seen as a failure of the defence to alight on and exploit the errors. But even if identified, the adversarial context would tend to reduce the credibility of any argument as simply partisan parry. It remains the case that the trial judge and three appeal judges allowed this woman to be condemned in circumstances that shared elementary errors with counsel, witnesses, and jury.
So what’s the point of all this? The issues are extensively analysed in numerous articles. But that’s just the point; the failings and errors this time were acknowledged. We’re all human and, for all their distinction, even a whole cohort from the top shelf can jointly succumb to basic failings. So how many other errors pass unseen, concealed beneath a deference to eminence and dogma?
The pressures to conform, preconceptions, insecurity, a need for domination, status; all may conspire to cloud clarity of thought. It’s inevitable, it’s what we are; and it’s something we could more readily recognise. Expertise is not necessarily transferable, eminence no elixir for infallibility – we’re all prone to human error and could temper determinations with more humility.
So the judge condemns and we all feel safer; a monstrous scapegoat has been identified, blame has been apportioned, the danger is locked away. A little comforting schadenfreude for the self righteous. A reassuring distance from the “other”. But guilt or otherwise, we’re all complicit and all have a complacent hand in the tragedy.
As long as we insist on simplistic solutions, human failings will compound the pain. The errors, however undesirable, are understandable, predictable even. The incontrovertible censure is far less easy to accept.
There seems to be a growing deficit of humility; defensive rebuttal of any suggestion of shortcoming or error become de rigueur at every turn. Perhaps it’s not altogether unconnected with our litigious and adversarial approach to “justice”?
These are characteristics clearly evident in those who seek to exploit the prosocial or deferential instincts of many. Individuals who display an implacable need to win and to dominate. They’re not going to acknowledge self-doubt; they’ve no time for curiosity, nuance and alternatives. They know what’s right and they’re busy imposing it on the rest of us.
There’s an associated pathology, and although there may only be some four percent of the population meeting the criteria for clinical diagnosis, they hold a disproportionate influence, apparently now occupying some twenty percent of leadership roles. It’s an influence that seems to be reshaping the world and teasing out the nascent tendencies in others; a new and aggressive normal. It’s a way of existence founded in insecurity and manifest in a defensive dismissal of any perceived challenge, however reasonable.
I like the description from George Will in the Washington Post, where he referred to Trump as “a floundering, inarticulate jumble of gnawing insecurities and not-at-all compensating vanities. .” – all the more powerful since these are the words of a renowned conservative. But when those vanities, those arrogant imperatives are allowed into the driving seats, the mechanisms of authority are imperilled.
Registers of Scotland holds a statutory duty to define the boundaries to every registered title. This is achieved by reference to an Ordnance Survey that regularly updates. The measurements change – often quite significantly especially in more rural areas. In crofting areas the problem is exacerbated when the Crofting Commission produce plans with precise dimensions similarly derived. It’s now over ten years since a letter to Fergus Ewing MSP was published by a Scottish surveyor outlining the damage and distress caused by ensuing problems. Judging from a householder’s letter, published just a couple of years ago in the Law Society Journal, the problems persist.
Although there are conventions employed to ameliorate, there remains an underlying reluctance to acknowledge very real shortcomings. A culture of denial that nurtures an ignorance extending to many practitioners including would-be surveyors and furnishes an opportunity for predatory ambitions.
And the predator employs a litigator to press his uninformed suit. And the litigator employs the tricks of the trade to force an unwarranted submission. And complaints to Complaints Commission achieve little since a lawyer is always entitled to use his “professional judgement”. And you could turn to the politicians but they just distribute platitudes and signposts. For at every turn there lies an agenda prompting a defensive fear of open and rational dialogue and resisting any threat to the reassuring hegemony.
It’s the Kennedy quote again – comfort of opinion without the discomfort of thought – and there’s an invasive malaise. We seem to favour an expedient, easy assurance over a more testing, uncertain reality. A tendency to cling to the convenient and familiar myth. A reluctance to acknowledge doubt and human frailty. An incipient myopia that can only inflict harm. And it infects at every level, right down to the unthinking, incurious bystanders and onlookers reaching for their glib shortcuts.
The woman was pilloried by press and public alike and despite her eventual release the consequences were almost inevitable. The stain never comes out and there’s no coming back from such experience. Although there may well have been no evident malice (on this occasion) it’s the drive for reassuring certainty that underlies the harm. That, and the refusal to recognise and accept inconvenient truths that might upset the scripted response. Just following procedure, isn’t enough; it’s no exoneration for tragic failure.
To be fair some issues were addressed. Several convictions in which the paediatrician had played a part were subsequently overturned. The hitherto influential “law”, to which his name was attached, discredited. Steps were instigated to better manage the impact and validity of “expert” input.
All of which is fine but was too late for this woman. And as one of those other victims of wrongful conviction noted, there is no official recognition or help offered to aid recovery from the trauma.
The status quo should be freely open to scrutiny and challenge. It shouldn’t take gross failure to penetrate the defensive blindsiding that remains so prevalent. A truly just and inclusive society recognises the need to accommodate the uncertainties central to the human condition.
Outing The Pathology 