Three False Convictions, Many Lessons

The Psychopathology of Unjust Prosecutions

Anderson, David C, Scott, Nigel P

• Publisher: Waterside Press
• Year: 2016
• ISBN:
  9781910979143
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

A new perspective on the roles of psychopathology, confirmation bias, false confessions, the media and internet (amongst other causes) of unjust accusations. Putting lack of empathy at the fore in terms of police, prosecutors and others, it considers a wide range of other psychopathological aspects of miscarriages of justice. By looking at three high profile cases, those of Amanda Knox and Raffaele Sollecito (Italy), Stefan Kiszko (UK) and Darlie Routier (USA)—the authors show that motive forces are a mind-set in which psychopathy (what they term 'constitutional negative empathy') may be present and the need to reinforce existing supposition or lose face plays a large part.Darlie Routier is still on Death Row in Texas despite overwhelming evidence that her conviction for killing her own child is false, whilst Knox, Sollecito and Kiszko have been vindicated by the highest judicial authorities and telling evidence. The authors show how and why unfounded rumours still persist in the Knox/Sollecito case and advance a new theory that the Routier killings were the work of a notorious serial killer.

Introduction

This book is for anyone who cares about justice. It is principally about the workings of the criminal law, and specifically false allegations and charges that were compounded by defects in justice systems. It is meant to stir-up thought and action by politicians, pressure groups and individuals of conscience who may suspect that the law, being riddled with complex rules, has for far too long been left entirely in the hands of lawyers. All too often it appears to be obsessed with process, procedure and legalities, and to have ignored its primary purpose of delivering justice.

In the book we look at man as a social mammal, albeit a quite unusual one with a complex brain and unusual psychology. This view lies uneasily with the origins of our legal systems that came about when science was in its infancy, superstition prevailed and juries, as they emerged, were seen as the infallible instruments of God. It is written by two non-lawyers, and examines unjust prosecutions both generally and through the prism of three high profile cases from separate countries — Italy, the UK and the USA — in which one or more arms of ‘The Law’ seems to have broken the law, and where the powers that be failed to intervene.

Amanda Knox and Raffaele Sollecito

In November 2007, Amanda and Raffaele had been lovers for less than a week when they were accused of the murder of Amanda’s flat-mate, Meredith Kercher. There can have been few modern-day trials in which public opinion became so visible or polarised, as the case played out in the courts of Perugia, Italy and the international press. As we note in Chapter 10 it became a modern-day ‘witch-trial’ played out in slow motion. More than 20 books have been written on the case, from all angles, including three by the former defendants and one by the victim’s father. So far, however, we believe that none has explored the deep undercurrents of this injustice. We believe that like the other cases featured in the book it derives from forms of individual or collective psychopathology that extend to all police and judicial systems, and the communities they supposedly serve. To use a medical analogy, other books have looked with varying degrees of impartiality at the symptoms, rather than the fundamental causes. This book seeks to correct that and draw lessons for reform (see particularly the closing chapter).

In the course of becoming involved in the Kercher case it became clear to both of us that something had gone seriously wrong, but what exactly was it? Was it unique to Perugia or something more profound in Italy’s justice system, and what were its characteristics?

In early-2013, after a trial and a successful appeal, the highest court in Italy closed legal ranks, and sent this case back for re-trial in Florence with instructions to find an innocent couple guilty, instructions that were faithfully obeyed. This verdict was then again appealed to the Supreme Court. With tortuous logic (arguably peculiarly Italian logic), the review of a review of a review has now been re-reviewed by a section of the same Supreme Court that sent the first review for review! The final result, arrived at in late-March 2015, is that Knox and Sollecito were found definitively innocent. But you might not know that. We hope to demonstrate in the book that any lingering view that they were ‘really guilty’ and somehow ‘got away with it’ has no substance whatsoever, though such a view continues to blight the lives of those involved.

The Kercher case (in Italy Caso Meredith) raises questions about just how deep-seated some faults lie. It also shows that common sense and truth may finally prevail, but at enormous cost and intolerable suffering. In clinical medicine it is well-accepted that individual case histories are highly instructive. So we also look at two further examples. Arguably, these resulted in even greater officially-dispensed injustice than was visited on Amanda and Raffaele.

Stefan Kiszko

Stefan Kiszko was a 23-year-old tax clerk of Ukrainian/Slovenian parentage who served 16 years in prison after being wrongly convicted of the sexual assault and murder of a young girl, eleven-year-old Lesley Molseed, in West Yorkshire. He was released in 1992 after forensic evidence showed conclusively that he could not have been the perpetrator. He died a year later. Ronald Castree was found guilty of Lesley’s murder in 2007. One of us (David Anderson) was Stefan’s endocrinologist and so well-placed to write about this case. We argue that Kiszko should never have even been a suspect. Ultimately he was totally vindicated by hard scientific evidence, and decades later by the conviction of the real perpetrator who had been inexplicably ignored.

Darlie Routier

Darlie Routier is an American from Rowlett, Texas, USA who was convicted of murdering her five-year-old son, Damon. Two of her sons, both Damon and six-year-old Devon, were killed in the attack, but she was only tried for the murder of Damon. Twenty years later she remains on Death Row, and we will argue that she is the victim of an obvious and extreme miscarriage of justice, the origins of which are still unfolding.

The Kiszko and Routier cases further demonstrate the tendency of justice systems towards a form of psychopathology — or ‘lock down’ — in which questions concerning the correctness of prosecutions, convictions or punishment are avoided on the basis that the system or its practitioners could not have got things so wrong. There are many other such examples from history in which supposed infallibility prevailed over plain common sense, getting at the truth and putting wrongs right.

A reluctance to acknowledge mistakes

Once someone stands convicted at law there is generally a strong and sometimes immovable de facto presumption (and official momentum), backed by the court’s legally binding decision, against innocence being allowed to emerge, even though there may have been a complete mistake. It can be difficult to dislodge the idea that the police would not have made an arrest unless the individual was guilty, especially given elements of psychopathy or sociopathy which exist in all societies including or maybe especially within the kind of professions to which certain personality types may be drawn (Chapter 1). We explore how all three injustices came about, and try to draw some general lessons by exploring differences as well as similarities between them.

Human psychology, superstition and belief

As human beings we are all different, each with our unique genetics (identical twins aside), upbringing, intellect, personalities, prejudices and failings, which together have formed our adult psyche. We are each flawed to some degree by our own special character and psychology. Most of us are reasonably caring, but amongst us are those whose mentality lies on a different scale. Of these, at least one person in 100 has a permanent defect in the brain’s empathy system, and is termed a ‘psychopath’ or ‘sociopath’. In this book, because early nurture doubtless modifies the impact of such a genetic defect on an individual’s later behaviour, we mainly use the less loaded term ‘constitutional negative empath/empathy’ (CNE).

We examine what modern research has defined as the characteristics of such people, who lie hidden among us, concealed behind a mask of normality. One of the most important lessons of history is that such people can be expert at exploring and exploiting the weaknesses of others. They can therefore easily create and exploit systems, recasting them in their own image to achieve control.

Legal systems in mainland Europe have their origins in medieval times, and take many of their traditions from the Catholic Church and its Holy Inquisition. At that time guilt was divined by a process of trial by stress, and not based on evidence, let alone on a presumption of innocence. Modern-day processes hold that an individual is innocent until found guilty, but in the hands of many law professionals you might not know it. In the book we describe why we think the Kercher case in particular is a clear, indeed flagrant, one in which ‘The Law’ broke the law, not once but repeatedly. It seems that in a country where face and La bella figura take pride of place, and superstition is still prevalent, that medieval beliefs may yet provide a screen behind which people and systems can conveniently hide.

We also look at defects in other supposedly civilised countries. Their systems too have their origins in medieval times, when the philosophy of the law derived from Christian beliefs in God and justice on the one hand and the workings of the Devil or anti-Christ on the other. Arguably, this was and is compounded by teachings of original sin, heresy and confession, which can have the effect of putting normal people with normal urges (especially universal ones of sexuality) under the control of those in power. Scandals relating to paedophile priests amply illustrate the risks of dogma in the name of religion, while the laws of evidence and forensic science are relative newcomers to the justice scene. So we try to explore which defects are shared amongst Western countries.

The internet age and mass media

The Perugia murder case and its drawn-out legal processes have taken place at a time of rapid change in press and communication systems, and these have had a major effect on judicial processes. From the start, Amanda Knox communicated with friends on MySpace and by email, probably thinking her thoughts were in the private domain. However, it was open to the police to cherry-pick statements to use against her whilst unjustly neglecting any that didn’t fit their theories.

Another twist to unravel is the extent to which such communications have been abused, for example in the Kercher case by pro-guilt bloggers or internet trolls hiding behind anonymity to try and influence public opinion and the outcome of judicial processes (Chapter 5). And how, in all three cases (Kiszko’s case pre-dates the internet age proper) and to an extent, the emotions of the victims’ families seem to have been toyed with and even we would like to suggest exploited.

Facebook, Twitter, Wikipedia and other social media are theoretically commendable innovations. We explore how they have become susceptible to manipulation in the context of justice and especially injustice. We argue that because of this some form of national and international regulation is needed to stop abuse. Without such controls it is inevitable that, to suit their own ends, individuals, some of whom may be lacking in normal empathy, will exploit weaknesses in the system.

Avoiding mistakes

Finally, the book asks how the mistakes illustrated by such cases might be avoided, and urges evolution towards a process of real fairness and reason in the pursuit of justice. The law is too important to be left to lawyers, judges, prosecutors and police if we are not ultimately to sink to the levels described by Franz Kafka in The Trial. There the victim, Josef K, discovers at first-hand just what can happen when lawyers decide that their role is to earn a living at the expense of the accused, and where things cannot be questioned. In Kafka’s Prague, a surreal underground psychopathological judicial system exists solely to support the interests of those in legal power. They in turn select and mould other individuals who further distort the system to suit their own image. In discovering this as a victim trying to fight the system alone, Josef K is himself destroyed.

We believe it is incumbent upon men and women of goodwill to act, for in the words of Edmund Burke, ‘[A]ll that is necessary for the triumph of evil is that good men do nothing.’ We argue that psychopathy (with its constituent lack of empathy), and other attendant forms of psychopathology, are what lies behind this famous adage.

Human beings are highly variable thinking and social animals with extraordinarily complex brains, so in this quest against injustice we start by looking at this aspect (Chapter 1). We explore first the role of empathy in normal socialisation and the nature of the absent empathy that makes the primary psychopath or sociopath so dangerous to others. The book then raises questions that go to the core of what so often turn out to be injustice systems.

At first glance it may seem presumptuous that such a book should be written by two lay people — one a retired doctor and medical academic scientist, the other a writer, local politician and head of a healthcare pressure group. What business do lay people have trespassing onto the hallowed ground of trial by one’s peers and robed lawyers and judges? But then, how did the small child in the fairy tale fail to see the emperor’s new clothes? Maybe it is time for some straightforward questions to be asked of those who make their living from what has been described as a ‘justice industry’, questions may be so obvious that those who have pupated and now fly within the existing system are likely not to ask them.

David Anderson and Nigel Scott

September 2016

Chapter One

The Law, The Human Brain and Psychopathy

The law is notionally there to protect the innocent against the transgressor and is therefore everyone’s business. In terms of personnel it comprises individuals working within a structured group of professions and organizations — police, lawyers, prosecutors, judges — with interconnected and sometimes overlapping responsibilities. Their combined function is to protect law-abiding citizens and their communities from ‘nasty’ people (that is, those who abuse the rights of individuals or threaten society with violence or in other criminally-defined ways) and their actions. However these are human structures and it is a truism that things left to themselves generally go from bad to worse.

Most people have an innate understanding of right and wrong...