Real lawyers/judges: Question about on-screen trials.

Dear Vits (Victor?). The power of the judge is different, and sometimes very different, in different countries. But I do not know of any country in which the judge cannot decide when to stop at the present day, and on what day and which hour to continue.
- - In the USA, I think, if the judge's decision is obviously inappropriate, this is a ground for the defence counsel to appeal to the court of appeal. But I know of no such case in USA. For Sweden I know of only one such case, but for making the Swedish case understandable I would have to devote some space to explain many things that may not be interesting to you.
- - Nevertheless, an American judge could manipulate a case in a number of other ways. It may not take more than 15-30 minutes to discuss one particular piece of evidence. But the judge may realise that if we stop now and the defence counsel present that piece tomorrow, then the jury will be well awake, but just now they are thinking much more about coming home as soon as possible, and may be more inclined to forget this evidence.
- - In Sweden it is no secret that when the judge of, say, the district court, has suggested next Tuesday, the prosecutor or the defence counsel may say that they are not free on that day, maybe because they have another case in The Supreme Court. I think that in USA the professionals may go close to the judge and discuss such matter, before the judge makes his "public" decision.
- - In USA you will repeatedly encounter a phrase like "The people/the state against Joe Brown". But never in Sweden. There is never any implication that the people or the state has lost something if the defendent if acquitted, or that acquittals are undesirable. Instead the phrase will be "the prosecutor against Joe Brown". The judge should be neutral, and so should "the people" and "the state".
- - In USA I continually hear judges talking about "my court". You will never hear that phrase in Sweden. No court belongs to any judge.
- - Maybe the greatest flaw of the American legal system is the concept of "impermissible evidence" (also found in Denmark). A person who is tried of murder in a state that is still applying capital punishment cannot take for granted that he can present evidence that will free him. He must have the judge's permission for every piece of evidence.
- - The fundamental idea in Sweden that only the prosecutor will decide what evidence the prosecution will present, and only the defence counsel will decide what evidence the defence will present. I shall admit that forbidden evidence has occasionally occurred during all period, but very seldom. However, since 1993 the concept of impermissible evidence has successfully began to creep in through the backdoor.
- - In the McMartin pre-school case the children had accused a total of 358 teachers of exactly the same acts of sexual abuse. For instead, one teacher had brough a lion to the pre-school, and the lion performed anal sex on one of the young children.
- - The two prosecutors understood perfectly well that if they tried 358 defendants, then the trial could only end with 358 acquittals. So the prosecutor charged only two, and made 356 persons disappear in silence. The judge forbade the defence to inform the jury about the 356 other persons, because he thought that this knowledge would be misleading to the jury.
- - The same time judge permitted the same prosecutors to call a lot of child witnesses, who testified that the two defendants had sexually abused them at the McMartin pre-school, despite the fact that these children were not even born until after the pre-school had been closed and the two "culprits" had been arrested. The judge did not think that these testimonies would be misleading to the jury.
- - In USA it is a normal occurrence that judges are former prosecutors. In Sweden it is a rare occurrence that a prosecutor will become a judge.
- - In Sweden the judge handling a case cannot fine or jail or punish in other way anyone in the case for improper behaviour during the proceedings. In USA it is considered natural that the judge can immediately convict anyone of a fine or a jail sentence. By contrast, if a Swedish judge thinks that the defendant or the defence counsel have behaved in a criminal way during the proceedings, he will have to report it to the police, and a quite different judge will handle that case.
- - I doubt that any such case has emerged during the last one hundred years. Also, such a rule is not necessary, because there is rarely (or never?) anything to be gained by improper behaviour.
- - The American TV program about the case of another pre-school "Little Rascals" was shown in Swedish TV in January 1994. It was immediately followed by a debate in which I participated. Never have so many students filled the auditory as at my first lecture after this debate. Never has the Swedish people been so familiar with Recovered Memory Therapy (RMT)and False Memory Syndrome (FMS). Some psychotherapists deliberately implant false memories of sexual abuse, and usually the father is indicated as the perpetrator. Many men was sent in prison for protracted periods. In USA the maximum punishment is 12 life sentences. The second highest is 365 years.
- - Exactly at that time the Södertälje case was handled by the court of appeal in Stockholm. The chairman of the court, Bengt G. Nilsson, understood quite well that Elvira (the pseudonym I use) suffered from FMS. Therefore he forbade anyone to mention FMS.

- - -

Legal proceedings can be found in many movies, e.g.,

"Twelve Angry Men" (USA)
"Anatomy of a Murder" (USA)
"Justice is Done" France)
"The Judge" (Sweden)
"Witness for the Prosecution" (UK)
"Keiho" (Japan, 1999, I think the Japanese title was retained in all countries)
"The Two Truths" (France, Italy; it is not a matter of dubbing. I think that the director himself made both the Italian and the French version)
"The Witches of Salem" (France)
"A Place in the Sun" (USA)
"Boumerang" (USA)
"Stammheim" (Germany)
"Anything For Her" (France)
"Paradise Lost: The Child Murders" (USA) [There are three documentaries about this case. It was indisputable that the three young men were innocent. But in many countries, not least USA, jurors vote according to mass media and not according to the facts of the case. One of the boys spent some 15 years in a death row, but is now acquitted.]
etc.

Dear V. I have several times tried to start a debate about jurisprudence. In general I have obtained few replies. But what is much more significant, is the character of the replies. Almost all users agreed that whoever is convicted, is guilty.

LATER ADDITION: There is a miswriting. The Supreme Court cannot have rejected the appeal BEFORE the court of appeal had made its judgement. The same miswriting is found in my book. I shall find the original documents, but not in the next future.

Here is a legal case described in one of my recent books. It can be downloaded for free at
http://www.yakida.se/max/start.html
http://www.yakida.se/max/maxbok.pdf


You can see that expert witnesses who are supporting the prosecutor are not afraid of committing perjury. And any expert knows that there is much more money to earn from the prosecutor, than from the defence.
- - - I was never involved in this case when the father was tried. But later the father turned to another lawyer who engaged me, and we worked with a new trial motion.
- - - At that time there were 25 judges of the Supreme Court. If a new trial motion had any substance it, it would be assessed by 5 judges. I USA it is a normal occurrence that the president would give the task of formulate the decision to the judge who were least convinced of the decision desired by the president. This is not possible in Sweden. Before any judge has seen any document it is decided by lottery which judges will handle a certain case, inter alia, who will write the decision, in case a majority will not accept the writing suggested by the judge-referee, who has no vote.


Chapter 33
The Case of the Lost Spermatozoa

Vanessa, injured party, b. 1987, biological daughter.
The distric court, 1989-10-27, convicted, unanimous.
The court of appeal, 1988-12-22, convicted, unanimous.
The Supreme Court, 1989-10-12, rejection of appeal.

Harry and Ilona are fugitives from a dictatorship in the third world. In his home country Harry has been a political prisoner. Their daughter Vanessa suffers from heditary hypothyroidism. It is a medical fact that this disease will often be accompagnied by constipation, which may be severe despite the daily dose of the missing hormon. The mother has recurrently cut ordinary soap into rods of the format ½ x 1½ x 5 cm. She would press these rods into Vanessa’s anus, and keep them from coming out by pressing her thumb against the opening. After some 15 minutes bowel emptying would start.
- - - Because of her problems with constipation both parents suspected that Vanessa was sexually abused at her pre-school. Both parents demanded a gynaecological examination under anaesthesia. Two such examinations were performed when the child was 22 months old and again at 28 months. It was performed by three doctors. Two of them (WW and KK) testified in court. The doctors discovered “positive evidence” of abuse. Then the father was sentenced to three years in prison. The only way for him to be released before he had served the full sentence, was to divorce his wife. The parents did divorce, and afterwards they could not live at the same address. Previously one parent had brought the child to the preschool, and the other had fetched her in the afternoon. Now the mother had to do both, and also had to perform double labour in many other respects.
- - - There were at least ten categories of evidence of the crime. I must be excused for not listing and refuting every single one. The most important ones were: (a) Vanessa suffered from constipation; (b) around her anus there were fissures, scars after healed fissures, reduced subcutaneous fat, and a ring of pressure marks and visible underlying veins; (c) an enlarged vaginal opening; (d) vaginal discharge; (e) a fresh rupture on the hymen; (f) a drop of male semen. – This drop was analysed in the laboratory. It turned out to contain a few hundred spermatozoa.
- - - What more could one wish for? I shall start with scrutinising the strongest evidence.
- - - If Harry was guilty, he did his best to provide foolproof evidence against himself. Against some resistance from the police and the prosecutor he had a decision made to perform a DNA analysis of the spermatozoa. At that time such an analysis could not be performed in Sweden. A specimen was sent to a laboratory in the United States.
- - - The Swedish authorities have presented three different versions of what happened to this specimen. The first explanation: The director of the laboratory has written a letter in which he states that the specimen never reached the laboratory. [This letter exists. I have read it myself.] Second explanation: the specimen was by a mistake opened by the custom. As a result is was defect when it arrived at the laboratory, and therefore no investigation could be made. Third explanation: The specimen reached the laboratory in perfect condition. But American legislation forbids laboratories to perform such investigation on specimens from other countries.- - - During a period of six years, the authorities concealed which version is the true one. And not even The Medical Responsibility Board requested any information, when the Board later handled the case.
- - - According to a letter from the director of the laboratory, the specimen never arrived. The second version is that the specimen arrived in a satisfactory condition, but that American legislation forbade such a test to be performed on foreign specimens. The third version is that the specimen was opened by a mistake by the customs. As a result it arrived in such a condition that the test could not be performed.
- - - I claim that it is highly unethical of the prosecutor to bring a case to the court with such apparent flaws. We cannot know how many other flaws the evidence may contain. It is also unethical for the judges to accept it for trial until these flaws are remedied.
- - - After this failure, the remaining part of the secretion was sent to a British laboratory. But the latter could find no trace of spermatozoa. In its report this laboratory speculated that the semen could have been handled in a faulty way in Sweden.
- - - I myself have written a letter to the laboratory and asked a simple question that could easily be answered: Are the observations compatible with the hypothesis that there were no spermatozoa in the specimen. I received an altogether uninformative note, which I can only interpret to mean that the laboratory did not want to compromise the customer who had paid for the investigation.
- - - And then there was no more secretion; all of it had been used up.
- - - Immediately after the fluid had been obtained from Vanessa, it was sent to a nearby fertility laboratory, which had never before handled criminal cases. Three doctors examined the secretion under a microscope. None of them detected any spermatozoa. This is a crucial fact, because spermatozoa are very easy to detect. We can justly conclude that at that time there were no spermatozoa in the specimen.
- - - Later the doctors coloured the secretion with a brush, which had previously been used for colouring genuine specimens of male semen. In a fertility clinic it is not important if a brush is totally cleaned. However, when the three doctors took another look in the microscope after the secretion had been coloured, there were really some spermatozoa present – albeit a perplexingly small number.
- - - Why was it so perplexingly small? The father's semen has been tested, and one ejaculation contained 295 million spermatozoa. If the latest assault had occurred some time ago, only a few spermatozoa might have survived in Vanessa's vagina. However, KK testified that during the gynaecological examination she could from her place behind WW and with her naked eye see a large drop in the child's vagina, which was transparent and looked like male semen. This is the drop that was secured and eventually sent to laboratories abroad.
- - - Such a concentrated drop of semen could only be found, if the sexual act had been performed during the very last few hours before the examination. But Vanessa had been at the hospital for at least 17 hours, and had during this period been completely separated from her parents. During a period of 8 additional hours, Harry could only have had the opportunity to assault the child when he fetched her from the day nursery and brought her home. At that time he knew that she would be going to hospital two hours later. If the police had shown even a minimum interest in performing an objective investigation, and had asked the mother immediately, she might have known and perhaps been able to certify exactly how many minutes Harry and Vanessa had been underway from the day nursery to the home.
- - - Suppose that the sap was rising and Harry could not resist, even though he knew full well that a gynaecological examination was impending. Why did he not use a condom? Why did he not try to clean the child's vagina with his handkerchief? Why did he not take the daughter on a trip for a few days, until the most flagrant evidence had vanished?
- - - Summing up: If Harry had produced the semen, it would not have remained in the same place 19 hours later. If a large drop consisted of semen, it would not have contained a few hundreds, but tens of millions of spermatozoa. If there had been any spermatozoa in the secretion when it was observed under the microscope the first time, they would have been visible. Additional support, that is not fully as conclusive, is provided by the fact that the British laboratory was unable to find any trace of spermatozoa.
- - - Vanessa suffered from vaginal discharge. But there is no information in the case-notes about how watery it was.
- - - The district court appointed a medico-legal doctor as the impartial expert to the court. It is evident that he knew nothing of the problems in question, and that he simply believed the words of the three examining doctors and the head of the fertility laboratory. He even believed that the constipation – a highly frequent symptom in hypothyroidea – was caused by anal sex.
- - - Since no other male than Harry could be suspected, a total of six medical doctors would be severely compromised, if it turned out that “the semen” consisted of ordinary vaginal discharge.
- - - When KK testified in court, she assured that Harry had definitely carried out a full intromission. However, when she afterwards was informed of WW’s view that Harry had masturbated on the outside and merely squirted the semen into the vagina, KK immediately retracted her former version and joined WW's idea.
- - - The judges did not detect this U-turn.
- - - According to the testimony of WW and KK, Vanessa had a vaginal opening of 15 mm; and all the literature the doctors had collected throughout the years agrees that this is a sign of sexual abuse.
- - - None of the judges detected the great discrepancy between KK’s and WW’s figures about the maximal size of the vaginal opening in non-abused children. And this was so despite their common claim that both their testimonies were based on the same literature. KK said 4 mm while WW said 10 mm.
- - - But a much more serious lie is involved here, viz. the confusion of the stretched and the unstretched measure. 15 mm is the stretched measure under anaesthesia, while 4 mm is the unstretched measure without anaesthesia. Comparing stretched and unstretched measures is a very foul trick.
- - - Vanessa’s unstretched measure under anaesthesia was 10 mm. In court WW supplied a physiological explanation as to why anaesthesia could not have enlarged the measure. Nevertheless, she herself had written in the case-notes that it is impossible to decide whether 10 mm exceeds the normal range BECAUSE of the anaesthesia. – She obviously took the chance that the defence counsel would neither obtain the case-notes, nor ask an expert of her own, nor check the literature that had been invoked.
- - - One week later Vanessa’s unstretched measure without anaesthesia was found to be 5-8 mm. (The amplitude might derive from the child's movements).
- - - At a much later time, two independent and outstanding gynaecologists studied the case-notes and examined Vanessa's sex organ. Both of them agreed that there no unusual feature was present.
- - - KK repeatedly claimed that she had before the trial prepared herself well by reading again the comprehensive literature which she and WW had collected over the years.
- - - This is a typical example of what Scharnberg (1996, 1994) calls “a twin lie”: a combined lie in which one part of the message contains the central and mendacious information which the receiver is intended to believe, while the other part of the message contains specific persuasive devices aimed at giving authority to this mendacious information.
- - - The important feature of twin lies is their enormous persuasive power. For some reason numerous people (not least numerous judges) are disinclined to imagine that anyone could produce two lies in one go.
- - - The “large” amount of literature allegedly collected over the years by KK and WW, turned out to consist of two brief papers: Berkowitz (1987) and Cantwell (1983). Berkowitz merely states that “some investigators, however, maintain that a 10-mm hymenal orifice in a prepubertal child is abnormal and conclusive of vaginal penetration” (p.284, italics added). She claims that there are great individual differences, and that an enlarged opening should never per se be taken as an indication of sexual abuse.
- - - In contrast to WW’s and KK’s false account, Berkowitz does not claim that vaginal discharge is a sign of sexual abuse. She merely states that when a child is examined because of a sexual suspicion, it should be ascertained whether the child has vaginal discharge.
- - - Most astonishingly, Cantwell claims to have carefully studied the literature, but to have found no information on the measure of the vaginal opening. But Cantwell’s paper is the source of KK’s postulated measure of 4 mm. Cantwell claimed to have found that 74 % of the girls up to and including the age of 12, and whose measure exceeded 4 mm, had been sexually abused.
- - - This postulation is impossible. In The Gynecology of Childhood and Adolescence by Huffman et al. (1981) the following figures are indicated: 0-2 years = 5 mm, 7-9 years = 7 mm, 11 years = 10 mm. Note carefully that these figures are mean values, and no information is provided as to how much greater a normal measure might be.
- - - At the time of this trial little was known about the topic, and a wealth of contradictory measures were stated in the literature.
- - - The family did not have modern North-European hygienic standards. The child would sometimes wear the same nappy from early morning until night. She would sometimes defecate; her faeces would dry up; she would urinate and the faeces would become soaked and soft; and then she would scratch herself. The mother had repeatedly had to clean her vagina from faeces with cotton buds. She swears she never used her fingers. But we need not believe her, because of the limited effectiveness of cotton buds and her fear of criticism from the authorities.
- - - Such treatment might well enlarge the vaginal opening. There would also be a risk of causing minor ruptures on the hymen (which would soon heal up). In fact, WW admitted in court that ruptures may be produced by gynaecological instruments.
- - - Berkowitz (1987:278) also writes: “A girl who is inserting tampons may induce hymenal changes indistinguishable from those associated with sexual abuse.”
- - - At the beginning of her testimony, WW said it was “absurd” to try and explain Vanessa's anal symptoms as the result of constipation; they could only derive from anal sex. But a few minutes later, she spontaneously produced an alternative hypothesis: anal sex had caused the constipation, and the constipation had caused the anal symptoms.
- - - But since there were no other indication of anal sex than the anal symptoms, and since the anal symptom were under the new explanation no indication of anal sex, it follows that there was no indication of anal sex at all.
- - - None of the judges detected WW’s U-turn and the implications of her new theory.
- - - KK had completely overlooked the possibility that the soap method applied by the mother could have any relation to Vanessa’s anal symptoms. She postulated that anal sex was the only possible explanation. However, when she in court heard about the soap method, she made another U-turn and claimed to be an expert on what kinds of anal symptoms could derive from the soap roads and from anal sex, respectively. None of the judges detected this U-turn. KK even said that soap rods cannot produce such signs because soap “is a matter of small pieces [...], why, it cannot change the surrounding skin”.
- - - The adult anus is approximately twice the size of that of a two-year-old. An adult would therefore have to insert two rods of 1 ´ 4 ´ 10 cm, say, twice a week over a period of more than six months. Who among my readers is prepared to agree that such rods are “small pieces”? Who would be surprised if this treatment resulted in signs that their anuses had been “very much stretched”?
- - - The only common denominator of this heterogeneous body of contradictory claims, U-turns and other pseudo-arguments, was the aim of having Harry convicted.
- - - The prison psychiatrist wrote in the case-notes that Harry was innocent. By contrast, the prison psychotherapist (Elisabeth Kwarnmark, not a pseudonym) treated him as a very contemptuous individual, because he had not confessed to the crime. After a year Harry refused to go on with the treatment. Kwarnmark took out her revenge by writing to the National Parole Board that they should not release him prematurely, because he would repeat the crime.
- - - For years, and against Swedish legislation, the hospital refused to release a copy of Vanessa’s case-notes to her own mother. She did not obtain them until she threatened to report the hospital to the police.
- - - She is often crying: “They have ruined my life, and they have ruined my daughter’s life”.
- - - The Medical Responsibility Board (HSAN) has passed a remarkable decision concerning the behaviour of the doctors. According to this decision, HSAN is exclusively concerned with the activities of doctors (and of clinical psychologists) when they are (a) making diagnoses and (b) giving treatment to (c) patients. Producing false convictions and severe sentences by fabricating false evidence for the prosecutor or by committing perjury, do not constitute any break of the code of professional medical ethics. And Harry is not entitled to complain, because he was not a patient of the medical doctors that testified against him.
- - - Presumably, 2-year-old Vanessa was a patient. But the time limit for complaining will expire when she reaches the age of four. And if her mother had found a lawyer that could protect Vanessa’s interests, the social services would have deprived the mother of the custody, and Harry would have had to serve the entire sentence.
- - - Harry believes that the Swedish police collaborates with the police of the country from which he had escaped: false evidence was fabricated in order to punish him for his previous political struggle against the dictatorship.

Interesting. But my main question is whether it would be possible (no matter the situation) for a judge to say "We'll stay in this courtroom until the trial ends, even if it takes 24 hours or more".
Dear Vits (Victor?).
Vicente, actually.

Dear Vicente. My knowledge about the American system is limited, so I can give you some certain and some less certain answers. – It is absolutely impossible that a judge could extend a trial or the proceedings in a civil suit to 24 hours. I am almost sure that he could not extend it to 12 hours, unless both parts would agree. I do not think there is any clear rule about the maximum duration against the request of one of the parts. But I think that 8 hours would in general practice be the maximum, and I think that the maximum would seldom occur. I have never heard of an American case where one or both parts requested cessation of the session and the request was overruled. – If anyone else knows about such cases I ask them to post their information.









"If you win any cases it is just
because the judges cannot stand
to listen to you any longer."
- - - - My 11-year-old granddaughter Sandra