23rd September 2024
(“…Punish the Wrongdoer” – at the Old Bailey, London – which presumably means implicitly not punishing the innocent: source.)
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I was going to do an article over at Prospect about the Lucy Letby case, with an accompanying more detailed post here. But I have now put it on hold.
There are four reasons for this.
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First, the online context for the article and post was (and is still) too heated and partisan.
The article and post are about what it would mean for such a case to be a miscarriage of justice or not: in effect, a guide to how to think about that and other cases where it is contended there is an unsafe conviction.
As such the article and post would not take a “side” – but it seems there is currently little appetite for anything other than which maintains Letby is either innocent or guilty.
And like Pavlov’s puppies, there are individuals who just need the slightest pretext to describe something as a “conspiracy theory” – even when no conspiracy is posited, and still less is there any theory.
(For an Anglo-Saxon empiricist and pragmatist to be called a “theorist” is perhaps as objectionable as being called a “conspiracist”.)
(And for more on whether miscarriages of justice require a “conspiracy theory” see here.)
On the other “side” there will be those just as irked at a legal blog setting out that the various scientific and statistical points being made by critics of the convictions, even taken at their highest, can only go so far in this particular case
So I am waiting for the online context to calm down.
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Second, there is the beginning of the Thirwall inquiry.
Any half-decent article and post on the Letby case would now need to take account of the additional information that will be available from the inquiry, in addition to the information from the court litigation.
And so I am now also waiting for that inquiry to get to an appropriate stage.
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Third, there is the risk of what can be called the “one sample” fallacy.
And so I wanted to look at other actual and contended miscarriages of justice, so to see the problems that have come up before and how, if at all, those problems were addressed.
I also wanted to see if the folk memory of past notorious miscarriages of justice accorded with the actuality of what was decided by the court.
When I re-looked at the Roy Meadow case reports, for example, they did not quite say what I recollected those cases saying.
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And fourth, I wanted to set out some preliminary points – like the role of juries and how it is for them to weigh evidence (once that evidence is admissible) – in a separate post or posts.
(In first go at the Letby article, I was 2,000 words in and I still was explaining in general terms the role of juries in weighing evidence.)
Sometimes an article and a post can (try to) do too much, and I got a sense that this was the situation here.
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As I have said before, I have no ultimate view on the guilt or innocence of Letby – and that is for a jury or a court of competent jurisdiction to decide, and not a blogger or someone who reads a blog.
But it is a case which may provide a useful basis for helping lay people understand how the justice system works (or may not work) and what a court can and cannot do.
And for the Letby case in particular, what else the legal system could have possibly done when Letby and her lawyers elected (for good reason or bad) not to put expert evidence before the jury themselves.
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Miscarriages of justice do happen – especially when there is reliance on expert and circumstantial evidence; but that does not mean that every case where there is reliance on expert and circumstantial evidence is (or is likely to be) a miscarriage of justice.
That misconception can perhaps be called the prosecution critic’s fallacy.
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And so in the meantime before I publish something more substantial on Letby, let us look at other cases where the has been an actual or alleged miscarriage of justice.
Let us look at the case of Oliver Campbell, which I wrote about here and here.
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Thank you for being a voice of reason in the Lucy Letby debate. As a lay person I am particularly interested in how it is decided whether or not evidence is admissible in court in the first place. In the Lucy Letby case, post mortems were done on six of the seven babies who died and there was no evidence found of foul play. However, the post mortem findings were over-ruled by a post-hoc review of case notes by a retired paediatrician with no experience of pathology or indeed forensic pathology. In the case of Baby A there was even a forensic review of the post mortem by a second pathologist which again found no evidence of foul play and ruled out air embolism, which is the cause of death attributed by the paediatrician. Are there not standard procedures for challenging post mortem findings? It seems extraordinary to me that evidence from a paediatrician can over-rule the findings of two independent pathologists.
I also have questions about the insulin evidence that was accepted in court. The testing was not done in a forensic lab so there was no chain of custody. The instructions on the test performed specifically said it should not be used to detect exogenous insulin. It is therefore hard to understand how this evidence was ever admissible in the first place. There are a number of peer-reviewed papers in the scientific literature on the subject of insulin poisoning and murder which describe the tests which should have been used.
Excellent summary of the situation. Your point about people taking sides rather than thinking about the implications of a case such as this are spot on. Thank you. A very thoughtful piece which I appreciated!