While I was training to be a Jesuit in the late 70s, I learned about, and practised, ‘blind obedience’. Rightly or wrongly, what I learned about blind obedience has informed my understanding of how juries work in the court system.
While I was training to be a Jesuit in the late 70s, I learned about, and practised, ‘blind obedience’. I recall being told that if something appeared black but the superior said it was white, we were to put aside our own perceptions and reasoning and believe that it was white.
Rightly or wrongly, what I learned about blind obedience has informed my understanding of how juries work in the court system. Once a jury is properly constituted and successfully reaches its verdict according to the rules of the judiciary, we are to put aside our own opinion about the guilt or innocence of the accused, in order to accept that the jury verdict represents the truth.
There will always be arguments to counter the jury’s conclusion, but we must either accept the truth of its verdict or keep our contrary reasoning and opinions to ourselves and our inner circles, out of respect for the rule of law that underpins the social order.
That is why I was dismayed last year when several prominent church related legal experts, and one archbishop, went public with their opinions contradicting the jury verdict. They all had the added authority of being respected community leaders, so I felt that their undermining of the credibility of the jury was especially threatening to the social order.
I thought that the right place for them to air their views was behind closed doors or within legal circles. I imagined that their opinions about the evidence of the witness might find their way into the minds of appeal judges in a manner that was not public, and I felt there was no harm in that.
I could appreciate the logic in their assertions, but to my mind it was not their place to raise doubts that would undermine public confidence in the rule of law.
In line with the principle of blind obedience, we all try to align our thinking with jury’s conclusion, again for the sake of the order of society. I remember writing the following while processing and reaching a positive assessment of the Pell jury verdict in my own mind: ‘The more I read about the fragmentary and therefore unreliable nature of human memory, the more I’m convinced that the form or demeanour of a testifying witness can be more telling than the verbal content of his or her testimony’.
Convinced as I was of my own opinion, and that jury verdicts are sacred, I’m now struggling to bring my mind around to conform with the judgment of the High Court, in the spirit of blind obedience.
Michael Mullins is a former editor of Eureka Street.
Michael Mullins is a former editor of Eureka Street. He now blogs at http://mullins.id.au
Comments
18 responses to “MICHAEL MULLINS. Blind obedience and the Pell trial jury”
I must confess that I fail to comprehend the point made by Michael Mullins, though I don’t doubt his clarifying intentions. I do not believe, nor has he presented any evidence of individual jury members being overridden by majority jury decisions. That is precisely why the judge asks the jury to retire to consider its verdict and asks as well as records whether the jury decision is a majority one or, for that matter, unanimous.
Whether it is incumbent upon all outsiders to suppress their doubts about the validity of a verdict is neither here nor there. That some prominent Catholics took issue with the judgment is also neither here not there. After all we live in a free country and are entitled to our (dissenting) opinions.
It has however to be said that Frank Brennan, who is one of the few lawyers who attended all the court hearings and who copiously read all the court records available to him, cast doubt on the plausibility of the decision made by the lower courts. In two lengthy and assiduously annotated articles for Eureka Street, a journal that Mullins once edited and in regard to which he still has some influence. In both his articles, Dr Brennan laid out his case in a manner that shows that he (Brennan) is now vindicated.
As the matter now stands, the law as well as the Australian public finds that the evidence to convict Pell was merely insufficient. It does NOT find Cardinal Pell innocent. Nor has Frank Brennan said so!
Take-aways from HC Judgment:
Francis Sullivan: ’let go of the obsession with Cardinal Pell … focus on the urgency of reform in the Catholic Church.”
Resist Craven, Bolt &Henderson’s agenda to blame the ABC, a voice for victims.
Cardinal Pell was acquitted, not found innocent. Don’t equate truth with justice.
Geoffrey Robertson’s point – that the trial should not have been a secret one – has validity.
Cardinal Pell’s response has been dignified, without rancour; forgiveness is part of the essence of being a Christian; furthermore, It’s Easter time – ‘ours were the sufferings he bore.’ Easter themes of victim and sacrifice hover.
The High Court did not find Cardinal Pell innocent.
Some believe, without evidence, in a supreme being.
In the Pell case, I know what I believe and no-one can furnish evidence to prove me wrong.
May I dissent from the spirit of blind obedience ? Recently I read from page 157 Rules for thinking with the Church in “The Spiritual Exercises of St Ignatius” translated by Louis J. Puhl SJ Loyola University Press Chicago 1951 and was enriched by some wise teaching but rejected in 365.13 ” What seems to me white, I will believe black if the hierarchal Church so defines”. Recently I bought ” The Forgotten Jesuit of Catholic Modernism ” George Terrell’s Prophetic Theology by Anthony M Maher Fortress Press
M Minneapolis 2018. Terrell died in 1909 aged 48.The book ends on the view that he speaks to our time. We can seek truth in fact finding and abide by the law settled
by the High Court of Australia. Our priority must be the protection of the vulnerable.
Some of the respondents appear to think that an appeal to the HC should not be allowed particularly when this does not agree with their preconceived and prejudiced positions. Pell’s position after two decades of smear and allegations which even the police eventually discarded; the ABC through 4 Corners and Revelation Episode 3 contained defamatory and deceptive material with s.Ferguson claiming in the latter that orphan “Bernie’s” appalling allegations were NEW when they were discarded two years ago and he didn’t visit the orphanage until it was closed. Really, blind Freddy among VicPol should have seen the second incident in the cathedral in the crowded corridor as ridiculous. How could a jury not see that? The problem for VicPol and the justice system is to distinguish between genuine victim testimonies and the fake. The judge who said Pell was guilty should not have let the trial continue in Melbourne. HC 7-0. Weinberg totally on the ball.
The end result was always to be such. As one other alleged victim stated, “Who am I to stand against this monolith”
Blind obedience is immoral and an abdication of responsibility. Men must think, reason, question and deduce if they are to be true to the gifts bestowed upon them at birth.
I quite agree? the inquisitorial system is cheaper, quicker, and fairer: therefore a lot more accessible and understandable to ordinary people.
What is reasonable doubt must differ from person to person. In percentage terms, is it 25%, 15% or 5%? It appears to me the High Court’s decision lifts reasonable doubt to the “almost definitely did it” level replacing their rarefied view of the evidence for that of the,what, at lest 18 jurors (including the first hung jury) and the 2 judges of the appeal court. The biggest issue for mine is that putting to one side cynical legal strategies and exploiting an adversarial common law system, with many rules designed to conceal the truth, why did Pell, a man of the cloth and only answerable to God, not get in the witness box and tell his “truth”?
One of my kinsmen became a Jesuit priest – I doubt there was any blind obedience that he was encouraged to accept – in fact his life and theological writing gave/gives no evidence of that. I am not sure that I could understand the point of that reference, Michael.
I have served on a jury – a relatively minor case – in the scheme of things – but what I found immeasurably reassuring in that number of citizens relatively randomly selected – was that out of the gamut of opinions in the jury room – from one silly person who had – against the explicit explanation of our judge NOT to come to any snap judgement – on first sighting the defendant adjudged the person guilty and loudly said so as soon as we had filed from the court-room for our first break – to others who had been able to see – far clearer than me – that we were dealing with a case in which (and pretty convincing my fellow jurists were) the one charged and the witnesses called against him were mates – clearly something among themselves had got out of hand and it appeared that we were not getting the full story in the cross-examination. The unanimous decision though was guilty. A sad little case. I have full confidence in the jury system – and none at all with a High Court which makes this particular decision clearly – some might say – at the behest of powerful vested interests.
Regarding the writer’s statement:
“I could appreciate the logic in their assertions, but to my mind it was not their place to raise doubts that would undermine public confidence in the rule of law.”
What the High Court did was to uphold the rule of law. There is nothing absolutist about jury decisions, It was not a matter of believing or not believing the victim. It was a matter of what was put before the Court and what wasn’t.
To repeat my comment from yesterday if I may:
There is a natural lament that the Pell case did not clear the air completely apart from Pell being a free man again. Nothing was proved beyond reasonable doubt. The criticism is that the evidence was good enough for the jury. But what about the law? Juries are human and there may be unknown factors that influence their perception. An appeal court is entitled, on the face of known factors, to question the reasonableness of a jury’s finding.
I have no candle for Cardinal Pell per se, but I am concerned that at various levels of the law, and its administration, there are inadequate protections against ‘unsound’ convictions, unless it be the law itself, properly applied.
What intrigues me is that at the time of the alleged offences at the Cathedral the Cardinal was accompanied by and in the presence of a senior priest, one Monsignor Portillo, who was not called as a witness either by the Prosecution or the Defence. I may be misinformed about that (relying on media reports). But one would think that if the Prosecution was to prove its case it would have put the Monsignor in the witness box and cross-examine him. Had he failed the cross-examination, then Q.E.D. for the Prosecution.
With the presence of Monsignor deliberately not tested, how could one say in such circumstances that there cannot be a basis for reasonable doubt? The minority judge in the Victorian Appeal Court was spot on. And as far as the law can be concerned that is all that matters. So held the High Court.
I think you mean Portelli. He gave evidence – the jury rejected it-probably thinking that his view was biased, but I can’t say. No one can say why they rejected the evidence of Pell & his witnesses. Clearly they believed the victim, & unlike the H Ct they saw ALL the evidence. No witness for Pell was excluded. The jurors believed victims not Pell & his witnesses. That is their job, to be the finders of fact, & it is NOT the job of the H Ct to substitute their own opinion for that of the jury. They have gravely undermined the rule of law, & attempts by Catholics to whitewash it has done their Church no service.
You can only cross-examine a witness if the witness has been called and examined. One would think the defence would have called Monsignor Portillo to get the statement that he accompanied Pell into evidence. Normally you would think Monsignor Portillo wold be called to give first-hand testimony. But you say he wasn’t called. In which case how did that important point get into evidence? That was the opportunity to cross-examine that source.
I have recently been planning to buy a new car and I was feeling quite confident, after some research and deliberation, about my final choice.
However, should I now contact the seven High Court judges to see if it would be wise to have another think?
Frankly I wouldn’t trust them to advise u on what packet of chips to buy. They’ll substitute their own opinion about the nutritional value. ?
Well I would never advocate blind obedience, I think it is a denial of an essence of our humanity. We need to be able to form our own judgements.
To me the legal process demonstrates that the further it goes the more it relies on abstract rules and precedents and the less it relies on the “demeanour of a testifying witness”. I was and remain angered by the way some prominent public partisans forcefully put their view without ever hearing the key witness.
We need to be careful not to subvert the rule of law, despite its flagrant subversion by the current crop of ‘conservative’ politicians. That said, I am not very impressed with a High Court that chooses to over-ride a jury’s experience of the witness.
Also we need to be able to criticise our reliance on adversarial proceedings, which put victims on trial more than perpetrators. An inquisitorial process would be more balanced and less likely to make it near-impossible to sanction abusers. A conflict resolution process might actually be healing instead of just punitive, or not.
Well said.
It is interesting to note in this issue that the High Court decision was 7-0. Not exactly a divided opinion. Isn’t that signicant?