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Graham Vincent's avatar

I thought this was a very thoughtful and relevant piece - thank you. I agree with huge portions of it.

Regarding detention pending trial (they call it remand in England & Wales): I was very impressed by the fictional story told in a mini-series a few years back with John Turturro, called “The Night Of”. The story concerns a man who has no recollection of whether he killed a woman or not - with that fact we as audience are deprived of prejudgment on the rest of the story, over the course of which the accused is remanded to Riker’s Island Prison in New York. There, his prime task is to still be alive when his trial date comes. Not only his demeanour, but his appearance slowly but surely take on that of a hardened convict. He shaves his head, smokes meth, befriends a protector, works the commissary system, learns not to wear orange for court appearances, all after his bed has gone up in flames. In summing up at the trial, Turturro gives a stirring and very well constructed piece of monologue, part of which addresses this fact: that the accused, having been held on remand for so many months, has had to change, to assimilate to Riker’s Island and its population, in order to survive the prison system, and now he stands before the jury to be judged - looking every bit the hardened criminal that the prosecution would have them believe he is, and innocence of which it is now his formidable task to persuade them.

I expressly mention the scriptwriter’s technique of the accused’s lack of recollection. We believe him, even if, at least initially, like his counsel, we can barely credit it. Ethically, counsel may not plead the innocence of an accused whom they know is guilty as charged. But they may validly challenge the state’s case as brought in support of the charges. They may question the evidence and they can profess theoretical innocence, provided they have not been informed of the accused’s position on the matter. The English case of Lucy Letby, a nurse convicted of the murders of a series of newborn babies, may yet prove to be food for thought: the most incriminating evidence against her was that she was on duty when each of the babies died. As were many other people, on an understaffed postnatal ward. However, she is in for life, whole life. The Texas case of Robert Roberson III is likewise interesting. He has been granted remission of 30 days as from 17 October - on which day he had been scheduled for execution. Letby supposedly incriminated herself by writing a frantic note to herself asking why she had done “it”, and recriminating against herself for her “evil" acts. I’m not sure that her acts, as impelling these notes, were acts of murder in the first degree, but I’m not directly involved. Roberson has served 21 years in prison, not for a crime he didn’t do, but for a crime that was never done, at least so all the current comments would seem to indicate. Yet his lawyer acquiesced in the charge of murder at first instance, and effectively pled only mitigation. He never questioned the fact of his client’s guilt, and that set the die for the next two decades.

If only we could handle the accused truly on the basis of “innocent until proved guilty” prior to incarceration, and could absolve the guilty of their debts, once their day of release is come. Give them their voting rights, embed them in the society within which we now want them to reintegrate. The problem with the correctional system is that those who benefit most from it, at least theoretically (being the general public), on the whole don’t give a hoot how it operates, as long as it operates; and those who operate it on our behalf really don’t know what it is they want out of it, because, essentially, nor do we.

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