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OSLO, Jan 1 2007 (IPS) - \’The forensic experts neither had nor used methods that could link the accused to the murder.\’ So stated a solid cross-section of leading Norwegian scientists in a recent plea for the reversal of a murder conviction that has troubled the conscience of Norwegian society since 1958, writes Fredrik S. Heffermehl, President of the Norwegian Peace Alliance and Vice President of the International Association of Lawyers Against Nuclear Arms. In this article, the author writes that in response to several spectacular reversals of murder convictions, Norway established a new commission three years ago to review convictions, independent of the courts. Today scientists consider the evidence in the 1958 case absolutely worthless, and they reacted with disbelief and anger when the commission rejected the call for a retrial. The lack of specific, methodological training and disciplined thought in the courts is a problem, and not only in Norway. According to an article in the latest issue of Nature, courts in the Netherlands fail to understand elementary statistics. According to an international seminar on science and evidence organised by the University of Oslo last September, imprecise methods lead to a high risk of wrong sentences. When the courts, even in a rich, advanced, and democratic country like Norway, make so many mistakes, one must shudder at the situation in regimes where the rule of law and independence of the judiciary do not exist. These countries carry out 98 percent of the 5.000 executions that occur in the world every year — an overwhelming reason why the UN General Assembly should approve the universal moratorium on capital punishment now under consideration.
Norway has seen several spectacular reversals of murder convictions. In response, a new commission was established three years ago to review convictions, independent of the courts. In their statement to this new commission in the Torgersen case, the scientists –specialists in medicine, odontology, statistics, chemistry, and biology — admitted with intense regret that serious errors were committed in the name of science in 1958.
In the 1958 trial, experts told the court that a bite mark on the breast of the victim was a perfect match with the teeth of Torgersen, and that two other pieces of technical evidence left no doubt that he was the killer. Today scientists consider the evidence absolutely worthless, and they reacted with disbelief and anger when the commission rejected the call for a retrial.
An internationally-recognised luminary of Norwegian science, Professor Per Brandtzaeg, termed the decision ‘madness’ and said the case had left him in ‘intellectual shock’. Scientists outraged by the low standard of legal reasoning are in for a head-on confrontation with the courts and lawyers. The now 72-year-old Torgersen, though he has given up any hope of justice from the judiciary, feels vindicated both by the scientists and by a newspaper poll that shows 81 percent of the population is in favour of a review of his conviction.
Commenting on a related case, Kaare Willoch, an economist and former Norwegian prime minister, wrote: ‘Ordinary common sense ought to suffice to reject such nonsense. It is hard to understand how even non-lawyers can be fooled, but when lawyers fall prey to such flawed thinking, there is reason to seriously question their education and judgment.’
The Torgersen story may yet do some good. Staale Eskeland, a professor of criminal law, claimed to have found a systemic error in the case that may explain why the courts get it wrong so often: although lawyers are always calculating the likelihood of certain events or outcomes, they lack the tools and training to evaluate probability. Scientists have honed their analytical instruments for thousands of years; lawyers, in contrast, still employ rather blunt tools. ‘Once Norwegian courts were bound by the oaths of two honourable witnesses; today they are free to make an overall evaluation. But they must respect the tools and rules for valid conclusions developed by scientists,’ Eskeland says.
In his view, the final judgment must be reached with the most meticulous respect for the laws of nature, mathematics, and logic. While the courts do need scientists as helpers, lawyers have the greater responsibility of evaluating evidence and mastering scientific methods, not least the theory of probability, which contains so many surprises and loopholes.
What led Willoch to question the competence of lawyers was a group of cases in Britain in which two crib deaths in the same family led to convictions of double child murder in 256 cases! A professor of medicine had assessed the likelihood of crib death at one in 8.500 births and the chance of it happening twice in the same family at 1 in 72 million — i.e., the latter was so unlikely that it had to be double murder, the professor reasoned, entirely overlooking other possibilities, and the fact that genetic or medical factors were more likely explanations than a sudden fad among parents to murder their own babies.
The lack of specific, methodological training and disciplined thought in the courts is a problem, and not only in Norway. According to an article in the latest issue of Nature, a leading scientific journal, courts in the Netherlands fail to understand elementary statistics. According to an international seminar on science and evidence organised by the University of Oslo last September, imprecise methods lead to a high risk of wrong sentences.
In an overall assessment, a cluster of superficial similarities between elements from the crime scene and elements found on the suspect may support each other and together give the impression of a much higher probability of the defendant’s guilt than would result from a systematic appraisal of each element separately. The standard procedure should include two phases: evaluation first of` how distinct and clear each element of evidence is, and second, of how unique it may be. The assessment of other possible explanations is a condition for any opinion on probability.
‘I am very disappointed that the Commission did not put an end to a tradition that has been practised for far too many years,’ Eskeland says. ‘My hope is that in the long run we shall put an end to a tradition that has hurt many more innocent people than Torgersen, in Norway and elsewhere.’
Fortunately for Torgersen, Norway abolished the death penalty over one hundred years ago, and he still has a chance to clear his name. When the courts, even in a rich, advanced, and democratic country like Norway, make so many mistakes, one must shudder at the situation in regimes where the rule of law and independence of the judiciary do not exist. These countries perpetrate 98 percent of the 5.000 executions that occur in the world every year — an unequivocal reason why the UN General Assembly should approve the universal moratorium of capital punishment which is now under consideration. (END/COPYRIGHT IPS)
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