I hope that our judicial system develops the new mindset that this case has highlighted a need for

Apr 08, 2012 Letters

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Dear Editor,
I join the community of persons who have felt confident enough to comment on Chief Justice Chang’s decision in the Henry Greene case.
And in repudiation of the ludicrous belief that only persons with a legal education are qualified to sensibly question the decisions of the court, I feel no compulsion to make the self-deprecating disclaimer about my not being a lawyer; for I am well aware that many of the decisions in our courts are ultimately made by juries comprised of persons with no legal education or not even one day of university education.
In a jury trial, which is what Henry Greene would have faced, the judge as the so-called trier of facts is tasked primarily with maintaining order in the court, determining the admissibility of evidence, ruling on the relevance of questions, and, if deemed necessary, declaring a mistrial or vacating a jury’s decision. The prosecution and defense, on the other hand, spend their time trying to convince the judge and jury of the irrelevance and dubiousness of each other’s evidence.
In analyzing the situation in which the Chief Justice (CJ) finds himself, I have come to the conclusion that the CJ was hamstrung by a judicial process that relies primarily on common sense and eloquence of arguments to resolve cases.
I strongly believe that the CJ would have recognized the need to refer this case for trial if he were operating in a judicial environment that placed as much emphasis on the mundane but necessary testimony of experts in the physical and social sciences.
Unfortunately, fingerprinting, post-mortem, arson, and ballistic test results are probably the most pervasive types of scientific evidences used in our courts. Very little, if any, resort seems to be made to social scientists such as psychologists. And the initial, undeveloped evidence before the CJ indicated that the testimony of a psychologist was needed. But the CJ allowed common sense to prevail.
We and the CJ have in our lives seen or heard about many things that defy common sense. The most prevalent is the woman who is beaten by her man for tea, breakfast, and dinner but never leaves or goes to the police, even if the man disappears into the gold bush for months.
He then returns and beats her to the brink of death, goes back to the gold bush, but she still stays and refuses to go to the police. I was also told of women who were regularly taken back by their husbands from the U.S. to Guyana to be beaten, even though they were aware of what would occur once they set foot in Guyana.
In exasperation, we conclude that these women are stupid, in the relationship for the money, or are fearful— or all three. But whatever we may think about their motivations, we would certainly not be averse to their abusers now or sometime later being prosecuted for their obvious crimes.
So in light of this reality, how much credence should we really give to our common sense in matters of this nature? But if we insist on using common sense alone, how much does it require to understand why a poor woman with a pending police matter would want to seem as friendly as necessary to the police commissioner who has the power to resolve that matter with a few phone calls, even if she feels in her heart that she has been raped by the commissioner? So would it have been unreasonable to ask Henry Greene to go before a judge and jury to defend against the woman’s allegations?
And wouldn’t our jurisprudence have been enhanced by asking the state and the defense to produce psychologists to examine/interview the complainant and pronounce upon the possible reasons for her actions after the alleged rape?
Apart from his unwise resort to common sense, I also believe that the CJ should not have taken cognizance of the additional expense Henry Greene would have incurred in defending himself as the search for justice owes Mr. Greene no such consideration.  After all, it was his own disregard for himself, his family, and his office that caused this situation.  Anyway, Mr. Greene has made use of the law and has apparently won. But Mr. Greene’s victory has raised a lot of questions about our nation’s jurisprudence in general and about Chief Justice Chang’s judgment in particular.
Nevertheless, I hope that our judicial system develops the new mindset that this case has highlighted a need for:  it must always be aware of and be willing to supplement common sense with evidence from the physical and social sciences whenever necessary. And it certainly was in this case.
 Lionel Lowe

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