Some Surprising Comments Made by the Former President of the Supreme Court

At the time in question there were around 25 judges at the Supreme Court of Sweden, and 5 of these would be selected by a lottery for each oral case. The rules for deciding written cases are a little more complex, but not essentially different. No president is ever elected or selected. The judge who had served at this court for the longest time will automatically become the president. (And he will retire when he has reached the age decided by the parliament for the general population.)

Judges of all courts seem to have an uncanny incapacity for discovering those internal and external relations between the pieces of the evidence that I have disclosed and explored in the preceding chapter. I feel somewhat uncomfortable when they even boast of this incapacity.

In his short paper on legal evidence evaluation Torkel Gregow (1996) comments upon my analysis of the accounts of the girl with the phenomenal memory. According to Gregow's distortion I had argued that Violet was lying because she presented "the same information" to the district court and to the court of appeal.

Which of the following alternatives would be most frightening (a) President Gregow tries to compromise me by attributing an idiotic argument to me. (b) The president is unable to perceive any non-trivial difference between my argument and his own distortion of it.

There are further perplexing statements in Gregow's paper. In one fell swoop he attacks many defence experts because they often point out contradictions and other flaws in the narratives of the injured party that are presented on different occasions. Gregow states that the verdict should exclusively be based on the evidence presented during the court proceedings.

Surprisingly he states in the very same paper that it constitutes a reason to believe that the injured party had told the truth, if the versions she presented on different occasions agree with each other.

If both statements are combined, they could hardly yield more than one conclusion: It is legitimate to compare different versions, if the purpose is to establish that the defendant is guilty, but it is illegitimate, if the purpose is to establish that he is innocent.

We may now ask whether the other judges of the Supreme Court agree with Gregow's claim that the verdict should exclusively be based on the evidence presented in the court Is there any hard evidence concerning this question

In the masturbation case two boys had masturbated together. Some years later one of them claimed to have been harmed by this activity. Since both were underage at the time of the act, the defendant could not be punished. The prosecutor instead tried to have him sentenced to give damages. He was acquitted by the district court. But then the prosecutor found a psychiatrist who was prepared to commit perjury. The psychiatrist testified that the injured party suffered from post-traumatic stress disorder, and that this is a frequent effect of sexual abuse.

Both boys agree about the 12 places in which they had masturbated. The psychiatrist was completely ignorant about 9 of them, and mixes up the remaining 3. A typical line from his testimony: "Hm, yes, a tunnel, well some kind of a construction or refurbishment site, I have a faint memory of this."

He did not know that the "injured" party had had all his behavioural peculiarities since preschool age. His only evidence in support of the fact that the "injured" boy avoided a certain place because it was associated with painful memories, was that the boy had said so. – In actual fact it would not be difficult to find numerous witnesses who could testify that the boys did not avoid these places at all.

Despite these flaws of the main expert's argumentation, the defendant was convicted with a majority of 4-1.

Then the defendant engaged another counsel. The case was accepted for oral proceedings at the Supreme Court, since the new counsel could prove that the court of appeal had transgressed the rules of The European Union for a fair trial.

But the Supreme Court also decided that the defence would not be permitted to present any evidence that had not already been presented in the court of appeal. In particular, the defence was not permitted to call another expert to prove that the prosecutor's psychiatrist had not made the correct diagnosis and had committed perjury; nor was he allowed to call the school and preschool teachers of the injured party, who knew that his hyper-aggressive temper was manifest already during preschool age.

The defendant was convicted by the Supreme Court, also by a majority of 4-1.

Now comes a vital point. The justificatory reason for the conviction was a petty detail which the judge referee (who has no vote) had found in one of the police interrogations of the defendant. This detail had not at all been mentioned during the proceedings in the Supreme Court, and almost certainly not in either of the lower courts. Another bewildering circumstance is that it is impossible to gather from the written judgement how this detail is supposed to prove the guilt of the defendant.

While former president Gregow had claimed that the verdict and the sentence should exclusively be based on the evidence presented during the oral proceedings, none of the 4 judges who convicted the defendant in the masturbation case saw any obstacle to basing the conviction on a statement in a police interrogation.



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Uppdaterad: 2009-11-19

Yakida