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Beyond a Reasonable Doubt?

Judicial Decay™ in the Country of Sweden®.


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DUCKPOND (Rixstep) — Former Chancellor for Justice Göran Lambertz has been a controversial figure. He's too often made a splash in the Duckpond. The other ducks don't like that.

A special commission appointed by Lambertz produced a report in 2006 on wrongful convictions.

The report looked into eleven cases, eight of which involved sex crimes, and identified the systemic failures in each. The report identified shortcomings in police investigations, conduct of the prosecutors, and conduct of the court magistrates.

The report further suggested the eleven cases were representative of jurisprudence in Sweden.

Day of the Ducks

The Swedish establishment reacted sharply. Even erudite critics of the system, such as feminist jurist Madeleine Leijonhufvud and professor Christian Diesen who'd already shown how terrible the system with lay judges really was, suddenly went on the counterattack, attempting to vilify Lambertz for releasing the report and calling for his resignation.

The most embarrassing reaction was by then Minister of Justice Thomas Bodström (law partner of Claes Borgström) who through intermediaries brought considerable pressure on Lambertz to 'STFU' - something that's expressly forbidden in Sweden.

Lambertz at the Supreme Court

Göran Lambertz stayed on and fought the other ducks three more years, then became a justice of the Supreme Court, and he's used his position to try to reform the Swedish judicial system and rid it of its decay.

One of the more important decisions from December 2010 concerns the evaluation of evidence in sex crime cases.

VERDICT OF THE SUPREME COURT
Stockholm 28 December 2010 Case B 2937-10

VERDICT

The verdict of the High Court is overturned and the indictment and damages claim are dismissed.

Background

1. SP was married to YJ 1988-1999. They had four children, whereof TP is the second oldest, born 1990. After the separation the four children lived first a short time with SP and thereafter with YJ. TP moved in with SP in the autumn of 2002 and lived there until 19 January 2006 when he moved back to YJ and his siblings.

2. SP was charged in July 2009 for rape of a minor and aggravated sexual exploitation of a minor (count 1) as well as aggravated violation of integrity (count 2). The crimes were according to the indictment carried out against TP from 1 January 2003 to 19 January 2006 in their common home in Y's community. Count 1 stated that SP 'on repeated occasions had forced sexual relations and sexual acts in the form of oral intercourse [...] which with consideration for the type of violation and other circumstances is considered comparable to intercourse'. TP claimed for damages.

3. The lower court dismissed the charges and the claim for damages. The High Court convicted SP for rape of a minor and aggravated sexual exploitation of a minor and sentenced him to four years in prison. SP was further bound to pay TP SEK 180,000 and interest in damages. The charge of aggravated violation of integrity was again dismissed by the High Court.

Investigation at the Supreme Court

4. The Supreme Court has held a hearing where the same evidence was presented as in the trials in the lower court and the High Court. In addition professor Pär Anders Granhag has testified as an expert witness at the request of SP.

The Supreme Court Decision

5. According to what TP has said, he was the victim of sexual assaults by SP from the autumn 2003 until the autumn 2005. He has in addition reported the following. The first assault occurred after they'd watched a movie SP had rented. SP pulled down his underwear and pushed TP's head towards his penis. A few days later SP wanted TP to suck off his penis, and TP did. After that there was a huge number of assaults which essentially followed the same pattern. The final assault occurred at the time SP's partner moved to their house in the autumn of 2005.

6. SP has denied any assaults taking place.

7. For a conviction in a sex crime case, as in all criminal cases, the court must find, through the investigation that's been conducted that the defendant is guilty of the accusations beyond a reasonable doubt. A believable narrative by the accuser, together with other evidence produced in the case, be sufficient for a guilty verdict (cf NJA 2009 p 447 I and II with references).

8. In judging an affidavit, there is often reason to pay particular attention to factors concerning the narrative itself, such as to what extent it is lucid, long, vibrant, logical, rich in detail, ostensibly in accordance with the truth in important aspects, as well as being lacking in inaccuracies, contradictions, exaggerations, parts that are difficult to explain, lack of consistency, poor context or doubt in decisive moments. On the other hand it is very often difficult to judge an affidavit through the general impression the accuser makes or through other non-verbal factors.

9. When as in this case an indictment comprises an unknown number of acts which have not been handled individually in the description of the alleged crimes, the question of guilt must be carried out with observance of the fact that the defendant may in practice have had limited opportunities to present any counter-evidence other than what concerns the accuser's general believability. Not breaking down the crimes into individual incidents does not exclude a guilty verdict (cf NJA 1991 p 83, 1992 p 446 and 1993 p 616) but it means that strict demands must be met concerning the evidence provided. In such cases it's especially important that the prosecutor clearly account for what is to be proved with each item of evidence and in which way the given evidence theme is connected to the accusations.

10. TP has given us some details about two introductory assaults which were to have occurred approximately one year after he moved in with his father and about a final assault which was to have occurred at the time AP moved into the house in the autumn of 2005. TP submitted this information 16 February 2009. He had before this on several occasions in investigations denied there'd been any assaults. He's explained now that he was ashamed and didn't think he'd be taken seriously. His narrative of the assaults manifests itself as obviously lacking in detail in comparison with his narratives about other situations. Generally his narrative is sparse and wobbly.

11. Witness KH has reported that in the autumn of 2006 TP suggested he may have been sexually assaulted and witness SO has reported that in 2008 TP corroborated the sexual assaults. They've both claimed they're convinced TP was sexually assaulted. Their statements have however been short and imprecise. Their testimony does not give any clear support for the information TP submitted to the court.

12. The remaining evidence the prosecutor cited lacks any real connection to the alleged acts and mainly concerns the person of SP and his behaviour prior to the time of the alleged acts. The information that's been submitted in that matter can possibly be of significance as general background when evaluating evidence but itself lacks tangible value as evidence in connection with the accusations in the case.

13. The evidence cited for the indictment is not sufficient as the basis of a conviction. Given this situation, there is no reason to further discuss the evidence SP cited for dismissal. The charges are dismissed, as is TP's claim for damages.

Other Issues

14. SP has requested compensation for PH's work in the Supreme Court before being appointed public defender with SEK 259,686 for 229 hours work. At that point, the case was primarily about permission to submit to the court. Considering the nature and extent of the case, it is deemed motivated that PH performed considerable work in this regard. SP however is regarded to have been reasonably compensated for 50 hours work.

15. SP has further requested compensation for the expert testimony of Bo Edvardsson in the High Court with SEK 124,000 for 124 hours. The testimony is motivated because SP must be able to defend himself. The testimony was only partially about conditions an expert could justifiably investigate. A reasonable compensation is regarded as being up to SEK 50,000.

16. Considering the written investigation presented in the case, there is no longer any cause for continued secrecy regarding any of the interrogations.

The following participated in the decision: justices Dag Victor, Gudmund Toijer, Göran Lambertz (rapporteur, supplement to decision), Agneta Bäcklund, and Ingemar Persson. Auditing officer: Ralf Järtelius.

Lambertz Adds

Court rapporteur Göran Lambertz wrote the supplement to the decision that got all those duck feathers in a flutter.

Supplement to Decision
Case B 2937-10

Rapporteur, Supreme Court Justice Göran Lambertz adds:

1. In this case, as so often in sex crime cases, the credibility of the accuser and the accuser's testimony are central to the issue of culpability. The assessment of this credibility must be carried out cautiously and with observation of the difficulties that exist in drawing secure conclusions. Research in behavioural science shows that incorrect assumptions are often made about what circumstances are relevant when assessing credibility (cf Lena Schelin, Evaluation of Evidence in Affidavits in Criminal Trials, 2006, p 397). Particularly difficult is assessing credibility from, for example, the general impression the accuser makes or from non-verbal factors such as degree of nervousness or self-confidence, tendency to fix one's glance or avoid others' eyes, tone of voice, emotional reactions, gestures, movement patterns. Above all caution is demanded in the matter of conclusions from a performance which can ostensibly support credibility, such as 'has the appearance of something that really happened'. As stated in the verdict, one normally has cause to put more emphasis on factors which concern the contents of the narrative as such. A further important consideration is often how the narrative evolved, for example the use of or lack of leading questions during the investigation. If the narrative appears to be coached and static rather than spontaneous, it's further consideration which generally reduces credibility. The importance of factors which otherwise would reduce credibility can be reduced if the accuser has an acceptable explanation, but such an explanation will not normally increase credibility. Caution advised when confronted with possible alternative explanations for the behaviour of the accuser prior to and during the trial. That the accuser is more credible than the accused is of course not sufficient for a conviction.

2. That an individual or an individual's narrative should be regarded as credible does not mean that the information is reliable. This can be connected to the individual for some reason being convinced to tell the truth but the details are partially based in delusion, confusion, suggestions, or other external factors that influence or subconsciously shift memory.

3. As stated in the verdict, a credible affidavit from the accuser, together with what otherwise is produced in the case, is sufficient for a conviction. When assessing the matter of guilt, consideration must of course be taken for the other evidence and relevant matters in the case. Thus even the credibility of the defendant should be assessed, as well as the probability in each of the statements of the accuser and the accused. One should further observe, without drawing conclusions, amongst other things, the reactions of the accuser immediately after the incident and general behaviour otherwise, forensic evidence and the conformance of the narratives of the accuser and the accused to this evidence, any relevant witness testimony, as well as investigative opportunities to check the accuser's narrative which can have been skipped by the police (cf NJA 2009 p 447 I and II). The court should observe particularly carefully circumstances which can speak for the accuser's information being less credible, for example that there are personal differences between the accuser and the accused, that the accuser is in need of an explanation in relation to the family or that the accuser would otherwise have reason to direct untruthful accusations at the accused. The temptation for some accusers to be after damages should be observed.

4. A conviction can still be possible without a thoroughly convincing affidavit by the accuser. This presumes however that the affidavit is supported by strong evidence of another type. For a conviction in this situation as otherwise it must be shown beyond a reasonable doubt that the accused is guilty as charged. 'Reasonable doubt' can be said to connote in practical terms that an interpretation other than as put forward by the prosecutor is out of the question (cf Gregow, SvJT 1996 p 509 ff). To ascertain that the burden of proof has been met, the court must carefully assess the accused's objections to the charges. This is true even if evidence in the case otherwise seems strong. This assessment should generally be included in the verdict.

5. Consulting experts in behavioural science in sex crime trials can in some cases be a valuable help for the courts. Amongst other things, they can contribute useful background information and focus the attention of the court on possibly incorrect sources. The courts should however in each individual case whether there is a need for such expertise. When it's a question of judging the credibility of someone who's been interrogated or will be interrogate before the court, there is almost never a justification for consulting experts (Jfr NJA 1991 p 446).

Day of the Ducks II

Despite the somewhat wishy-washy and inconsequential supplement by Lambertz, the ducks went on the attack again. Madeleine Leijonhufvud in particular was aghast that a sudden need for actual proof and establishing verdicts 'beyond a reasonable doubt' was going to be disastrous for the Country of Sweden®. But this time Lambertz found supporters: Eva Hedberg, editor of the website Infotorg Juridik, wrote a rebuttal already the same day.

Criminal trial lawyer Charlie Tvärenvigg published his own rebuttal five days later.

Too Easy to Convict in Sex Trials
Published 2011-01-19 13:43. By criminal trial lawyer Charlie Tvärenvigg.

I wish to claim that it still is and long has been incredibly easy for prosecutors to convict defendants in sex crime cases. The reason for this: the Swedish courts base their verdicts almost exclusively on narratives provided either directly or indirectly by the accusers. This is something most people aren't aware of. Proof in an actual or forensic context is almost never present.

This is about men in general being sentenced to many years in prison in pure 'he said/she said' situations. Madeleine Leijonhufvud is fully aware of this. But the issue for her seems to be that not all - who aren't men of course - are not taken 100% on their word when they claim they've been sexually assaulted.

The italicised portions of Madeleine Leijonhufvud's post that were directed at Göran Lambertz are presented as some sort of 'news' that refines jurisprudence and almost makes it risk-free to commit sexual crimes. Of course that's utter nonsense.

Already in 1996 our former Supreme Court Chief Justice Torkel Gregow wrote in the Swedish Jurist Magazine (#7 p 510) that the concept 'beyond a reasonable doubt' should be regarded as in practice regarding the innocence of the accused as out of the question. What Göran Lambertz added in his special opinion was almost the same thing, word for word. So it's not news at all.

On the contrary: the recurring problem in sex cases - as in many other types of criminal cases - is that the cited rules for evaluation of evidence are of a more 'theoretical' nature. For in practice many people are convicted without it being out of the question that they're innocent. They're convicted on pure and otherwise uncorroborated statements from an accuser, and very often to long prison sentences. The result is that most of these people have their futures ruined, they lose their families, their careers, their homes, and have to live the rest of their lives under spittle and ridicule.

What the Swedish judicial system is in need of instead is that our Supreme Court take even more responsibility and show the lower courts even more clearly that verdicts must be made on an objective basis - in contrast to a whimsical and emotionally skewed basis as is the case today. Hopefully the recent decisions are small steps in the road to a more sound judicial process.

Charlie Tvärenvigg, criminal trial lawyer

Swedish Roulette

People take their lives in their hands when walking into a Swedish court. All the good intentions of the few jurists who seem to care and appear to have a faint hint of a clue still haven't come close to changing the overall picture.

The judges are political appointees with no merits whatsoever in jurisprudence. Some admit they never listen to testimony but try to guess culpability based on courtroom behaviour.

Christian Diesen's earlier surveys show these lay judges get their answers wrong 63% of the time when asked about the most fundamental principles.

Most of them feel it's alright to convict on no evidence - just mete out a lighter sentence.

Many of them admit they've considered introducing politics into their rulings and many admit they've already done so.

And most importantly: three lay judges sit on the bench in Sweden's lower courts. Only one real (trained) judge is there. The real judge's own decision can break a tie, but the three lay judges can overrule the real judge 3-1 at any time.

Small steps indeed.

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