HOWZAT

The three power players — judge, prosecution and defence — almost seem to be part of a soap opera, to the extent that all the players have their parts off pat. These are professionals. Next, the am-dram types, some of the expert witnesses, come across as pure theatre. It has been suggested that expert witnesses do it to impress their peers. By now I wonder if these expert witnesses do it not so much to impress their peers but to bamboozle their inferiors — us, the jury — and, if they can get away with it, the lawyers.

I wake at the end of a prosecution pundit’s exposition to catch him saying that one example of cause-and-effect is simple common sense. I am nervous of “common sense” — that facile facility that allows us to give false meaning to common phenomena. This nonsense rouses me to rip off the question: does he mean common assumption? The answer is, of course, yes. But I’m worried; judge, counsels and jury have all missed that easy, persuasive trope.

At one stage we hear of “the triad”, a three-part syndrome, highly indicative of proof and described impressively as “almost diagnostic”, that is almost certain. Fine, except that years ago I’d asked a psychiatrist about the efficacy of certain drugs. He answered: “Well, let’s say half work on half the people half the time.” About half, wouldn’t you say? Not according to probability theory. “That’s just over 10 per cent,” I observed. He agreed.

Here’s what I’ve gleaned from the case so far, the state of medical knowledge is far from complete. I want the same question and answer, in different words. Writing carefully, I rip it off. The judge takes a few minutes then says something like: “Here is another question from the jury; it begins: ‘As regards the triad, what is the probability that the first part exists? Given that, what is the probability that the second part exists concurrently? Given that’ . . .” He stops at this point. “This sounds like statistical probability.” He’s looking at the others. They nod. I nod; that’s exactly what it is He says: “This is a court of law. The law does not recognise probabilities, only facts. I don’t pretend that this is verbatim but it was the gist of it. It’s catch-22. Here’s a case, not without facts, but which is predicated on probabilities — yet it does not accept probabilities.

We are now a few days from the end. I begin to hope that the accused is innocent, as I despise what seem like cheap tricks of interrogation. During the defendant’s live evidence, the shaking, the horror of realisation, the sudden panic, the little girl’s imminent death, the point to which the case has so far led, the prosecution asks something very like: “And in all this time, did you not once consider the possibility of febrile convulsions?” The defendant, her defensive adrenalin pumping in confusion, replies that she had not. She looks silly. Counsel elaborates the question, repeating it twice. The defendant’s reply is unchanged. By now it’s clear that she’s incompetent in her job.

I rip off a note. The judge gives it to the defence. “Does Mrs Henderson know what ‘febrile’ means?” Mrs Henderson replies: “I’ve never even heard of it.” She couldn’t have done better; it is exactly the answer I want.

We return after a break to find one of the prosecution’s younger experts, who earlier told us how much he admired his old tutor, sitting at their bench as his old tutor is wheeled in for the defence. A professor, an histologist, he is the one I’ve been waiting for - the maverick, the Outsider, the odd knife of the Twelve Angry Men. Their lone medical forensic expert, of whom it seems very few exist, he is the cavalry, come to counter the prosecution’s argument. He begins well, but is outgunned almost eleven to one and when the prosecution has finished the floor positively gleams.

His former apprentice has twitched, waved his hands and shaken his head disapprovingly through most of the Old Man’s careful but ultimately wasted expert advice. I’m surprised that the judge has allowed such dissimulation. The poor defence, up against little more than probability, yet unable or unwilling to discuss probability, is on a hiding to nothing.

It remains for us to hear the summing up then retire to consider our verdict. I ask the judge, who has just brilliantly summarised six week’s hard work, whether we may have copies of his valuable transcript. We may not. For weeks we’ve been bombarded with novel and complex information, facts and opinions but no hard evidence. We’ve gleaned knowledge but little understanding. We’ve dealt with a High Court judge and at least two QCs, then a battery of medical experts whose letters of qualification exceed the number in their names. Now we, the jury, culled from the streets and with scarcely a PhD among us must judge this case.

Back in the jury room I ask their verdict. They tell me. They’ve learnt nothing from the trial: they’ve judged her by themselves; they’ve listened to expert opinion and thought it evidence; they’ve used their common sense. And thus, they vote. And wild with regret, a woman goes to prison — and all that goes with it.

It’s a sad day; I had to announce our decision, whether I liked it or not. If you could hear, as we did, the sound of that woman’s grief, you too might think her honest. If we’d had that transcript we’d — probably — have produced a better verdict. I’m sorry to have had to be a part of this farce, this forensic shambles. So I do what I can. Meanwhile, Keran Henderson, and all those like you, I wish you luck.

The above is an edited extracted from a forthcoming book by Mr Seckerson about the trial. © M.A.Seckerson 2008

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