By Fredrik S. Heffermehl
OSLO, Jun 24 2015 (IPS)

When he died at the age of 80 on Jun. 18 in Oslo, Fredrik Fasting Torgersen had divided Norway for 56 years and the “Torgersen case” had attracted international interest in forensic science circles, among them the U.S.-based Innocence Project.

The case has a lot to tell us about evaluation of evidence, and how to avoid wrongful convictions.

At 24, Torgersen was convicted as the murderer of a 16-year-old woman found brutally killed in a basement in the house where she lived. He served 16 years in jail, but always insisted on his innocence and enjoyed a wealth of support.

Fredrik S. Heffermehl

Norway’s chief prosecutor (Riksadvokaten) and the judiciary have time and again turned down appeals for a reversal, but they are increasingly alone in their view; criticism from scientists, authors and the general public has grown steadily.

Torgersen had a prior record with the police when, just after midnight on Dec. 6, 1957, he was arrested in the centre of Oslo, suspected of having stolen a bicycle. During interrogation, the police station received a report of a young woman found dead in the same area. The police immediately suspected Torgersen and, in the coming weeks and months, collected everything that could appear to prove their theory.

The police were so convinced of his guilt that obvious exculpatory evidence, such as the lack of blood splatter on Torgersen´s clothing, was ignored.

Today, it is generally recognised that police must not focus on one suspect too early, and that material deemed “uninteresting” by the police must be made available to defence attorneys and the court.

Yet, the aspect of the case that seems to call for a revolution, in no way limited to Norway, has to do with evaluation of evidence. Courts lack training essential for assessing probabilities correctly.“Judges (and defence attorneys) must be trained in basic scientific methodology, logics and elementary statistical principles. Only then will they be able to unmask apparently impressive expert testimony not underpinned by empirical research on the real world and its variations”

At the original trial of Torgersen in 1958, the prosecutor presented three forms of technical evidence and a series of experts who told the court that unique aspects of this evidence (a bite mark, traces of faeces, and some spruce needles) amounted to total probability, indisputable proof, that Torgersen had been at the crime scene and left a bite mark on the breast of the murdered woman. The court relied on “likenesses” as conclusive evidence against him.

It applies all over the world – courts fail to see the difference between similarities and probabilities.

A bite mark tells that the killer had teeth, meaning it could be anyone. Unique traits are needed. When a dentist testifying against Torgersen told the court that the teeth had met “edge-to-edge” and that this clearly pointed to Torgersen, the defence attorney asked: “How unusual, one in two, in ten, in fifty, or one in a thousand?” The dentist could not tell, but the court did not understand what was at issue.

If the court had understood, this type of question would have been asked not only once, but again and again in the case, in all other cases in all courts, everywhere. Likeness in itself tells nothing. To draw conclusions about probability and uniqueness, one always needs to know normal frequencies.

This was the key discovery made in 2001 by the Oslo professor of criminal law, Ståle Eskeland, who, after 20 years on the case, leads a very broad effort for reversal of the Torgersen conviction.

Eskeland has explained this elementary rule of conclusions theory to the courts repeatedly, but they seem unable to grasp it. Courts have continually upheld the Torgersen conviction without even the smallest comment on the probability argument.

In a recent debate, a leading defender of Torgersen, Professor Per Brandtzæg, Norway´s most internationally quoted scientist, supported Eskeland. In a rebuttal, the former director of the Norwegian Courts Administration, Tor Langbach, insisted that the courts are critical, they ask questions.

He seems to miss the point. Not only must the courts ask the experts questions, says a professor of law in Oslo, Leif Petter Olaussen, they must ask the right questions.

To do so, judges (and defence attorneys) must be trained in basic scientific methodology, logics and elementary statistical principles. Only then will they be able to unmask apparently impressive expert testimony not underpinned by empirical research on the real world and its variations. 

Olaussen refers to an example of the horrific consequence of not asking the right question. Ten years ago a court found an employee in a kindergarten guilty of sexual abuse. Some rumours had circulated (children are fanciful) and, based on testimony from two doctors about unusual red marks around the vaginas of the small girls, the court concluded that improper conduct had occurred. Someone must have done it, and the most likely was Mr. NN (!), who was then whisked off to jail.

The court should have inquired about the research basis for calling red marks unusual. There was no such research at the time, only ten years later. Red marks are normal. The judgment was reversed.

Torgersen died in peace, he felt acquitted by both public and experts and knew that a solid group would continue to take his case forward. Just one week before he died, a new request for reversal was submitted by two heavyweight attorneys, Cato Schiøtz and Pål W. Lorentzen.

After 64 years, the file is enormous, but the case is still very simple – the lawyers found no valid evidence against Torgersen, but a whole lot that exculpates him.

One day, Norway and the world will thank Torgersen for a lifelong effort in the service of justice. (END/COLUMNIST SERVICE)

Edited by Phil Harris   

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service. 

Excerpt:

By Guillermo Medina
MADRID, Dec 22 2014 (IPS)

Political and institutional corruption has become the main concern of Spanish citizens after unemployment and the dramatic social consequences of the economic crisis, according to opinion polls.

The systemic nature of corruption – recognised by most analysts but denied by Prime Minister Mariano Rajoy of the right-wing People’s Party (PP) – is coinciding exasperatingly with the impoverishment of most of society and the enrichment of a few of its members, leading to a rejection of current politics and institutions that verges on social rebellion.

In the 2011 municipal elections, 39 percent of candidates under investigation for corruption throughout Spain were re-elected, according to a report by the Politico analytical group. Some notoriously corrupt officials even claimed that the “favourable judgment of the electorate” was a kind of absolution.“The systemic nature of corruption is coinciding exasperatingly with the impoverishment of most of society and the enrichment of a few of its members, leading to a rejection of current politics and institutions that verges on social rebellion”

But indifference towards corruption was transformed into intolerance when the crisis arrived and scandals began to emerge.

In October 2004, a poll by the Centre for Sociological Research (CIS) found that only 0.6 percent of respondents mentioned corruption among their main concerns; by October 2014, according to the same source, 42.3 percent were naming it as their second-highest concern.

Citizens have now made a direct connection between corruption and the crisis, profligacy, unemployment, impoverishment, inequality and a political style. Irritated and provoked by their observation of the obscene ostentation and impunity of the corrupt, many have reached the conclusion that it will not be possible to eradicate corruption without profound change.

In the view of many Spanish citizens, corruption has its origins in a model of party politics that reduces democracy to a mere mechanism for deciding – every four years – which party will occupy the seats of power, with no substantial change for the people.

The meteoric rise of Podemos (“We Can”), the movement and political party proposing radical change, is therefore not surprising. Founded in January this year, Podemos secured 25 percent of voter intentions in a survey published on Dec. 7 by the newspaper ‘El País’.

Due to deficiencies in the electoral law and certain flaws in their original make-up, the other parties have thwarted the wishes of the electorate and have created a crisis of representation.

Frequently, lax laws, long criminal proceedings, short statutes of limitations and the most varied tricks of judicial ingenuity conspire to grant impunity to conduct that is harmful to the common interest and causes public scandals.

No wonder Carlos Lesmes, president of the General Council of the Judiciary, said recently: “We have a criminal system devised to penalise the petty thief, but not the large fraudster; it does not work in cases such as we are seeing now, in which there is so much corruption.”

People today are aware of the relationship between politics and corruption. One of the most pernicious effects of this omnipresent phenomenon is that it monopolises and conditions political debate, weakening institutions like Congress and the government itself, which should be focusing their attention on solving the country’s crucial problems.

Politics are deadlocked. Accords have become unviable because the country is divided by two contrary and reactive forces, between those who are enraged at the “caste” and are seeking a radical alternative, and those who are frightened by what they rightly consider to be a threat to their interests and prioritise attacking their rivals, while trying to convince us that they are fighting corruption.

At this point, the corruption and disrepute of the political class has resulted not only in the growth of Podemos, but is perceived as a curse even by the business community, which sees it as a hindrance to economic recovery.

A survey among the 500 participants at the recent National Congress of Family Business awarded only 1.08 out of 9 points to the political situation. Last year the result was 1.66 out of 9.

Democracy does not create corrupt people, but corrupt people end up corrupting democracy, and then corruption becomes a structural, systemic problem. Multiple abscesses turn into gangrene and after that, ending corruption means cleansing the entire system.

Fighting corruption is only possible in the broader context of political and institutional regeneration. So it seems to those who demand regeneration, and because they feel that the established parties are lacking in political will, they state their intention to vote for Podemos.

The anti-corruption measures proposed so far by the government are uninspiring and lack depth because they do not make the necessary connection between corruption and political regeneration. The opposition Spanish Socialist Workers’ Party (PSOE) goes further than the PP although its proposals are also inadequate and somewhat vague.

It is impossible to fight corruption effectively without reforming the bipartisan model, introducing internal democracy and carrying out a thorough reform of the system of justice to guarantee the independence of the judiciary, as judges and magistrates are demanding.

Political corruption goes hand-in-hand with the exercise of power, whether in Andalusia (PSOE), Catalonia (Convergence and Union), Valencia (PP) or Spain as a whole (PP). Therefore the existence of regulatory institutions, a real separation of powers, and free and independent media are essential for combating it.

Even if it is accepted that ending poverty and unemployment is more important than regeneration, I do not see how the former can be achieved without the latter.

The idea that the economic crisis has generated a political crisis is widespread, but the reverse is equally true, so we are up against the question of which came first, the chicken or the egg.

For a time, the Spanish government has tried to face the economic crisis, leaving aside the political crisis, with dire consequences. Unfortunately the Prime Minister does not take this view and believes instead that the long-heralded economic recovery will be the panacea for all ills. The results are clear for all to see. (END/IPS COLUMNIST SERVICE)

(Edited by Phil Harris)

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service. 

Excerpt:

Comprehensive judicial reforms pushed by the government of Argentina on the argument that they will democratise the justice system are moving ahead in Congress in the midst of staunch resistance by the opposition, heated debate, and threats of future lawsuits challenging them as unconstitutional.

The package of laws presented Apr. 9 by centre-left President Cristina Fernández includes six changes aimed, as she said, at “making the country’s most important branch of power – because it is the last place where the life, freedom and patrimony of Argentina’s 40 million people are decided on – more modern and transparent.”

On Wednesday and Thursday, the Senate approved two changes that will now become law: the creation of three new appellate courts, to ease the backlog of cases that reach the Supreme Court; and regulations of court injunctions, a tool used to prevent irreparable damages to people or entities by a new law.

Another change that was approved by both the lower and upper houses but must return to the Senate for another vote would expand and change the process for the designation of the members of the magistrates’ council, which appoints and removes judges.

Three changes that made it through the Chamber of Deputies and now go to the Senate involve open competitions for jobs in the judicial branch; a requirement that the wealth declarations of judicial, and not just executive and legislative authorities, be published online; and a requirement that all federal court rulings be published online.

The opposition parties in Congress refused to set forth complementary ideas, arguing that the aim of the reforms is to increase government control over the judiciary, and saying they pose a threat to the country’s institutions.

One of the most heavily debated reforms was the one that would regulate and set deadlines for the application of indefinite court injunctions, which often keep laws from going into effect for years. This change became law after incorporating modifications proposed by civil society organisations.

When she presented the reforms, Fernández said that through the “abusive” use of court injunctions, the Grupo Clarín media group had failed to comply with the media law in effect since 2010, by challenging the law in court.

But human rights, environmental and labour groups warned that setting deadlines for injunctions would go against a number of citizen rights, especially the rights of the most vulnerable segments of society.

In response to these criticisms, ruling party lawmakers agreed to create an exception for the setting of deadlines, when “the dignified living conditions, health, or a right that involves food or the environment” of socially vulnerable sectors are under threat.

Also criticised was the proposal to expand the number of members of the magistrates’ council, from 13 to 19, and in particular, the article stating that the members must be elected by popular vote.

“The problem here is that a judge that wants to run for the council would have to campaign alongside political parties,” Álvaro Herrero, a lawyer with the Civil Rights Association, told IPS.

The council is currently made up of one member named by the executive branch, three judges, two representatives of lawyers’ associations, one academic, two senators and two deputies representing the largest party in each house of Congress, and one senator and one deputy representing the second largest party.

Most of the reforms approved by the Chamber of Deputies on Thursday will go back to the Senate.

But the second reform that will become law was the creation of three new appeals courts, to handle administrative, civil and commercial, and labour and social security cases. There is currently only one appeals court at that level.

The idea is to keep so many cases from accumulating before the Supreme Court.

The governing faction, the centre-left Front for Victory in the Justicialista (Peronist) Party, was confident that it could muster the votes needed to quickly pass the six reform bills.

But it ran into resistance by the opposition and criticism by civil society and academic organisations.

The debates thus raged on, with the governing party legislators and their allies incorporating changes and adding clauses suggested by human rights associations, legal experts and academics.

Despite the modifications, the right-wing, centre-right and centre-left opposition, backed by street demonstrations, did not accept any of the proposed reforms.

“The government is attempting the final assault on the judicial branch,” argued Mario Negri of the centrist Radical Civic Union.

Deputy Francisco De Narváez of the right-wing faction of the Peronists warned that “Argentina’s institutions are in a situation of extreme danger.”

Raúl Ferreyra, a professor of constitutional law at the University of Buenos Aires, said “the reform has two faces.”

“I see some good things and some very bad things” in the proposed reforms, he said in an interview with IPS.

“I really don’t like this debate that took place in just a few hours,” he said, although he insisted that there were positive aspects in the proposed reforms.

He was referring to the requirements that wealth declarations and court rulings be published online, and to the open competitions for hiring judicial personnel based on their merits, rather than connections and nepotism.

Ferreyra lamented, however, that the reforms did not resolve the question of better access to the justice system by ordinary citizens. He also said the regulation of the court injunctions, even with the added modifications, “leaves the most vulnerable without protection.”

In addition, the academic questioned the creation of new appeals courts as “unnecessary” and said they would only slow down the handling of cases.

But he agreed with the modifications of the magistrates’ council. “It shouldn’t shock us that in a hyperpresidentialist system, a president would come up with this kind of reform,” he said.

Ferreyra said that, despite the wide criticism, the judicial reforms “are legitimate” because they are backed by a president who was reelected with 54 percent of the vote.

“For the first time in 30 years, they want to discuss a reform of the judiciary, and that’s a good thing,” he said.

But the opposition legislators most vociferously opposed to the reforms said they would challenge their constitutionality, once they are passed into law.

In search of a more transparent and agile justice system that is less authoritarian and bureaucratic, judges, prosecutors, defence lawyers and legal experts in Argentina are pressing for reforms to modernise the judicial branch and make it more democratic.

A coalition of members of the judicial branch, the attorney general’s office and NGOs, named Justicia Legítima (Legitimate Justice), held a series of debates on Feb. 27-28 which gave rise to proposals for modernisation that will be published in a forthcoming document.

“This is a debt owed to democracy. We have a mediaeval judicial branch that needs to be changed,” academic Andrés Harfuch, coordinator of the programme for trial by jury and citizen participation at the Institute for Comparative Studies in Criminal and Social Sciences (INECIP), told IPS.

Harfuch, a member of the Justicia Legítima coalition, said the Argentine judicial branch is “hierarchical, pyramidal and authoritarian; it only allows professional judges, although the constitution stipulates that juries must be a part of the system, something that would introduce major changes in the entire structure.”

The system still operates by written arguments, and lacks transparency, Harfuch said. “It’s a Precambrian system, which hardly any advanced country uses any more. In some courts they still use typewriters and court employees spend their time stitching records together,” he complained.

In the last 25 years, INECIP experts have worked on judicial reform in nearly every Latin American country, “from Mexico on down,” Harfuch said. But “the hard core of resistance is still Argentina’s federal justice system,” he said. “The judges cling to their privileges and power.”

The internal debate acquired public notoriety in December, when three groups of judges and officials expressed their concern over “the use of pressure mechanisms against judges” by the executive branch, “affecting their independence.”

Hundreds of judges, prosecutors, public defenders, justice employees and academics replied in another publication, titled “Una justicia legítima” (Legitimate justice), questioning the criticism voiced by the judges in December and giving birth to the new coalition.

The signatories said they did not feel represented by the complaints of the three associations. They said they were trying to reconcile the justice system with the citizenry, and that independence should not only be understood in relation to other branches of state, but also to the business community and the media.

The background to the dispute is the clash between the government and the Clarín media group which is being settled in the courts. The company is in breach of the law against concentration of the media which forces it to shed some of its radio and television licences, a measure that has been postponed by court injunctions since 2010.

The government recused two judges who were to rule on another postponement in October 2012, and Justice Minister Julio Alak stated that if the judges decided against the media law they would be guilty of rebellion.

The accusation provoked a harsh reaction from the opposition. “The independence (of judges) is clearly being affected,” said the Radical Civic Union (UCR) party, while Civic Coalition lawmaker Elisa Carrió said democratic order was under attack with “justice being trampled on and judges being intimidated.”

In this context, President Cristina Fernández announced in her speech opening Congress Mar. 1 a series of bills to democratise the judicial branch, and described the contents of some of them.

She said they would include filling positions by competition, the creation of courts of third instance, publicising the progress of investigation of cases, and electing by popular vote members of the council that designates judges, instead of having them selected by legislators, lawyers and judges.

Fernández said she did not intend to eliminate tax exemptions on judges’ earnings, because when she herself was a Congresswoman she promoted a bill to that end that was dismissed by the Supreme Court.

However, she invited the Supreme Court to review the tax exemption, which she said is inequitable compared with what other taxpayers pay. She also called for the sworn declarations of assets by judges to be made public, as is already the case for members of the executive branch.

In an interview with IPS, María Laura Garrigós, presiding judge of the National Criminal and Correctional Court of Appeals, said Fernández’s proposals are aimed, in general, at legislative modifications.

But there are other changes that can be made without the need for new laws, she said.

“For instance, those of us who participated in the Justicia Legítima meetings were practically unanimous in thinking that entry to the judicial branch should be by competition, and in the Court of Appeals that I preside we have already instituted this,” she said.

Garrigós said that previously, when there was a vacancy, it would likely be filled by acquaintances, relatives or friends. “Holding an open competition means that people who do not know any judges will be able to apply and take the exam to join the judicial service,” she said.

“This means the composition of the staff will gradually change towards one that is more open to society and more heterogeneous,” said Garrigós. Justicia Legítima arose partly because judges are increasingly appointed through competitions, not for political reasons, and that alters the composition of the judicial branch, she said.

She stressed that the changes “are not being made because the executive branch demands them, but because of the vocation of many of us who believe the judicial branch should be more democratic, when previously it has been a rather pyramidal and hierarchical system.

“They are happening now partly because the political context encourages debate; however, they are not a question of party politics, but of macropolitics,” she said.

In line with the ongoing debate, Garrigós also recommended that court employees drop the honorific titles they used to address judges by. In her jurisdiction, “judges in courts of the first instance were called ‘Your Honour,’ and in courts of appeal ‘Your Excellency.’ Now we are all called ‘usted’ (the common form of formal address),” she said.

Garrigós recalled that during the presidency of Raúl Alfonsín (1983-1989) the title of “Excelentísimo”, used to address the president, was eliminated, but in the judicial branch the hierarchical form of address was retained. “It may seem trivial, but we want to proclaim our disagreement with this special treatment,” she said.

Another aim is for the justice system to use less cryptic, more understandable language. Garrigós mentioned that the Supreme Court is already doing so, and there are examples in other countries where courts have used linguists capable of “translating” the contents of court rulings for common citizens.

“We have to learn how to do this. It’s difficult, because it’s easier for us to speak our jargon, but we have to make ourselves understood,” she said.

Egyptian President Mohamed Mursi issued a controversial decree last week that temporarily puts his decisions beyond judicial challenge. While critics decry the move as a blatant power grab, the presidency says it was necessary to safeguard Egypt’s post-revolution democratic transition.

Mursi’s decree, according to a statement from the presidency on Sunday, “was not meant to consolidate power, but rather to devolve it to a democratically-elected parliament and pre-empt attempts to undermine or dissolve two democratically-elected bodies (the Shura Council and the Constituent Assembly).”

The declaration calls for the retrial of police and Mubarak-era officials – including the ousted president himself – implicated in the killing of protesters during and after last year’s popular uprising. Given a recent spate of controversial police acquittals, this was welcomed by political forces across the board.

It was the items that followed that triggered a political firestorm.

The declaration goes on to make all presidential decisions “final and binding” until a new constitution is approved and parliamentary polls are held in some six months’ time. It also makes two government bodies – the Shura Council (the upper, consultative house of Egypt’s parliament) and the Constituent Assembly (tasked with drafting a new constitution) impervious to judicial rulings calling for their dissolution.

Mursi’s decree gives the Constituent Assembly an additional two months to finish drafting a national charter to be put before a popular referendum early next year. The constitution-drafting body has been dogged by controversy since its inception earlier this year, with secularist members opposed to the assembly’s Islamist majority.

The declaration gives the president the right to appoint a new prosecutor-general, which he did, replacing Abdel-Meguid Mahmoud – whose dismissal had been a longstanding revolutionary demand – with Judge Talaat Abdullah.

Judicial authorities along with Egypt’s liberal and leftist forces labelled the president “Egypt’s new pharaoh” and called his decree “dictatorial.” The Supreme Judicial Council described the move as an “unprecedented attack on judicial independence.”

In mid-June, on the eve of a hotly-contested presidential runoff, Egypt’s then ruling Supreme Military Council ordered dissolution of parliament’s lower house in which Islamist parties – particularly the Muslim Brotherhood’s Freedom and Justice Party – had together won a sizable majority. The order followed a ruling by Egypt’s High Constitutional Court (HCC) deeming the law regulating last year’s parliamentary polls unconstitutional.

In early July, only one week after becoming Egypt’s first freely elected head of state, Mursi in a direct challenge to the judiciary issued an executive decree calling on parliament’s dissolved lower house to reconvene. The president, however, quickly backed down after the HCC countermanded his decree.

Mursi struck back in August, dismissing Egypt’s ruling generals and thus ending the country’s military-administered transitional phase, and assuming legislative authority from the departing military council.

In mid-October, after the acquittal of several ex-regime officials charged with involvement in killing protesters, Mursi tried – and failed – to have Prosecutor-General Abdel-Maguid Mahmoud removed from his post. Mahmoud, appointed by Mubarak in 1996, has until now survived longstanding revolutionary demands to “purge” the judiciary of Mubarak-era officials.

On Friday, tens of thousands of demonstrators, supported by most non-Islamist political parties and groups, converged on Cairo’s Tahrir Square to protest the president’s declaration. Similar numbers turned out at the presidential palace in a show of support for Mursi’s decision.

Addressing the crowds, Mursi stressed his respect for Egypt’s judicial institutions but asserted that a handful of high-placed judicial figures “still loyal to the former regime” were using their influence to stall transition to a functioning democracy.

Mursi frequently stressed the need for “stability” – and not without some cause.

Within the last two weeks, Egypt has faced challenges on both the foreign and domestic fronts, dealing with a week-long Israeli assault on the next-door Gaza Strip – where it successfully brokered a ceasefire – and ongoing street fights in Cairo between security forces and activists.

According to prominent Egyptian political analyst Tawfiq Ghanem, both sides in the dispute have valid concerns.

“There is a legitimate fear among the public that the presidency is accruing too much power; his critics see him assuming complete authority and freeing himself of judicial oversight,” Ghanem told IPS. “Mursi’s supporters, meanwhile, view the judiciary – especially the HCC – as unfairly blocking Mursi’s decisions and dissolving elected government bodies.”

Ghanem believes Mursi issued the decree to pre-empt the possible dissolution of the Shura Council and Constituent Assembly by the HCC, which is slated to rule on the constitutionality of both Islamist-led bodies early next month.

The HCC, Ghanem pointed out, “began taking sides in the fray this summer when it declared parliament’s newly-elected lower house unconstitutional and recommended the assembly’s dissolution.” Since then, he added, the court has “taken on an unprecedented political role.”

Nevertheless, Ghanem said, Mursi should have “coordinated the move with other political forces….he should also do more to reassure a wary public that he won’t use his considerable albeit temporary powers against civil liberties.”

Two separate mass demonstrations in Cairo are expected on Tuesday by supporters and opponents of the president’s controversial decree, with many fearing possible clashes between the two rival camps. On Sunday night, a young Muslim Brotherhood member was killed after unidentified assailants attacked an FJP office in Egypt’s Nile Delta.