Pearls and Irritations

Picture a courtroom scenario, the accused and his family members have eyes on the jury foreman who is about to announce the verdict. The accused knows he is guilty, but is hoping for luck to come his way through the jury’s decision. The foreman speaks: “Guilty”.

A word? No, a sentence. Not just for the defendant, but also for his family and friends.

The verdict was somewhat expected, even inevitable, but there was still the hope of a not guilty verdict. For family and friends, now begins the time of adjusting, grieving and refocusing; organising access visits and provisions for the new prisoner. Then comes the waiting out of the sentence, but now with a different hope, this time of early parole. In the meantime, how will the rent get paid? How can visits be managed with two young children and a two-hour trip on public transport? There is anger at the defendant for being so thoughtless, so stupid. There may be despair at the enormity of what lies ahead for those on the outside. This is a sentence for many because of the actions of one.

Picture another, similar courtroom scenario, the accused hardly daring to breathe as he awaits the verdict. This man is innocent. He originally trusted the system, but to his horror, has experienced that an innocent man is not guaranteed a just trial and a correct verdict. He has been judged by the media, which has in turn influenced the public, and perhaps even the jury, with their damning, emotive, public pleasing banners and headlines. He and his family and friends have had to endure misquotes, opinions, and personal harassment from the media, even after the judge addressed the media personnel and ordered them to stop. This man, rather than having to be proven guilty by the prosecution, has been in the fight of his life to prove himself innocent.

The foreman speaks: “Guilty”.

Those who wanted this verdict are celebrating, some quietly with the odd back patting, others openly laughing, applauding.

The innocent defendant, his family and his friends are shrouded in a heavy blanket of absolute horror that this could possibly happen. They are silent, heads bowed, unable to fathom the enormity of what has just happened. Counsel approaches them with words of solace and promises of an appeal. The prisoner is taken away.

If a justified verdict for a guilty person negatively impacts family and friends when it is expected, how much more does this apply when the conviction is wrong? When trust in the criminal justice system is shown to be misplaced, is shattered and has been betrayed, what is the impact on the prisoner’s immediate community, let alone the wrongfully convicted prisoner?

For the family, life has to go on. They return to work after the verdict and face colleagues who, although perhaps sympathetic, have read the headlines and therefore “know the truth”. Some are not sympathetic, and instead deem supportive family to be in denial. Some even become aggressive towards family members who still support their loved one. Family, who have been harassed by photographers throughout the ordeal of the trial, are now recognised when they go shopping, thanks to the front-page photographs and television coverage. The occasional person offers words of kindness; most say nothing, some hurl abuse. Everyone in the public domain has drawn their own conclusion, often informed by the misrepresented “truth” in the media. For the family member, it becomes the norm to keep silent if comment is made and to avoid being in the same room if similar cases are discussed because of the likelihood of hearing sweeping statements about prisoners and their luxurious conditions and cringing at the absolute ignorance of the general public. Family members and friends who work in public positions may experience biased reactions when an association to the prisoner is inadvertently discovered.

Visiting a family member in prison is another trauma to be overcome. Depending on which prison you visit, you could be forgiven for thinking that you were a guilty prisoner. Some prison officers are genuinely helpful and supportive of visitors; however some at reception on visiting day make life very difficult with their sheer bloody mindedness. But don’t protest, argue or make waves of any sort because they have the power to cancel your visit immediately. Indeed, they have the authority to have you banned from visiting altogether. Visiting a prisoner can be stressful, challenging and demoralising and this is the ongoing lot of a person supporting a wrongfully convicted prisoner.

The psychological impact on a wrongfully convicted prisoner has been well documented. Post-traumatic stress disorder of a unique kind is one of many consequences. I suggest that PTSD is not limited to the prisoner, but may extend to family or friends. Every time one is asked to retell the story, to justify one’s belief in the person’s innocence, or to comment on the inevitable intermittent references to the case made by the media, one has to relive that initial feeling of absolute horror at the delivery of the verdict. There are memories too of the courtroom events, amassed police presence at strategic times, misleading evidence, the perception of unethical or even downright illegal tactics by the prosecution and the despair felt at the prosecution’s feast of resources due to unlimited funding making obvious the difficulty of the defence with a limited budget. The stress and trauma of living through a wrongful conviction takes its toll. Anger and alienation, whether self-imposed or consequential, are very real. Marriage and family relationship breakdown, mental health issues and social isolation are common consequences.

The struggle involved in seeking to maintain support for a wrongfully convicted person over years and even decades of imprisonment cannot be over-stated. Not only are all involved experiencing psychological trauma; there is also the energy spent to see justice served. There always remains the urgent, compelling need to do something about this aberration of human rights.

But what is there to be done in the case of a wrongful conviction? The avenue of appeal, if granted, can result in another trial with a repeat of the trauma, anxiety and stress. If that second trial fails, few options remain. In some jurisdictions, a further appeal is possible if fresh and compelling evidence can be produced – a difficult barrier to overcome. As Stephen Cordner and Kerry Breen have outlined in their recent book, Wrongful Convictions in Australia, further steps via the High Court or seeking an inquiry via the government of the day are rarely successful. And Australia is out of step with a number of western counterparts in not having an accessible post-conviction review mechanism such as a Criminal Cases Review Commission.

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