Power and stupidity

Suppose we follow the preliminary results for the election of the next president of the US. Suppose we hope that this time not a person of the same type as president George W. Bush will come out of all this. What can we do? Very little of course!

Now we follow the democratic candidates Hillary Clinton and Barack Obama. As usual, the democratic candidates are infinitely more interesting than the republican candidates. So now we can choose (for the democrats) between a woman and a (half-)black person. For the first time in history! Wow!

It is true that Barack Obama uses the word “change” very much. It is also true that the presidency of George W. Bush makes one crave for change, so in that sense he is of course right on target. But how are these two on the scale from stupidity to “lucidity”? Hard to judge! Having brains might be a disadvantage for a candidate for presidency. A person with brains might do something unexpected. The American voters might find it safer to vote for an old predictable candidate who will probably continue to ruin America and the rest of the world, in spite of the fact that (for example) Barack Obama is a brilliant speaker and possesses “charisma”.

Since May last year I am fighting Dutch lawyers in an attempt to get a reopening of the Lucia de Berk case. Never have I experienced so much the powerlessness of individuals against a closed and totalitarian system of people who try to defend their own name, no matter what it costs. In surrounding countries there are still laymen judges, juries, etc. In the Netherlands there is nothing similar, lawyers are in total, uncontrollable, power of what happens in law cases.

In the Schiedam Park murder, see Miscarriage of justice, another person than the convicted one confessed having committed the crime. This was an occasion where the lawyers could not escape from releasing the convicted person from prison. In the Lucia de Berk case there were probably no murders, so there is not someone other than Lucia de Berk who can confess. This gives the Dutch lawyers the opportunity to leave her in prison. One also gets the impression that this is what they want to do to prevent further embarrassment after the disastrous treatment of the Schiedam Park murder. There is an endless postponing of further action in this case. In the mean time even a committee of lawyers (the “Grimbergen committee”) has advised a reopening of the case; however, the “advocate general” of the Supreme Court has introduced another intermediate step before this advice will finally be considered by the Supreme Court in the Netherlands. This may mean that another year may go by: the Grimbergen committee already took a whole year to finish its report. Lucia de Berk has been in prison now for 7 years and still has a life sentence.

This week I was confronted with an article in the journal for Dutch lawyers, entitled: “An academic public lynching: the advertisement in connection with the Lucia de Berk case”. The word “public lynching” is closest (in intention) to the Dutch word “volksgericht”, used by the author of this article, the lawyer Prof. Mr. G.E. van Maanen. So van Maanen tries to argue that the poor Dutch lawyers are victims of a bunch of unreasonable scientists, who signed the petition for reopening of the Lucia de Berk case, and who are out “for the blood” of the Dutch lawyers. From his article it is completely clear that he has no knowledge whatsoever of the case, but his “argument” is: the persons who signed the petition which led to the advertisement in the Dutch newspaper did not have access to all the files connected with the case and should therefore keep their mouths shut. The signing of the petition is endangering the stability of Dutch society and the trust in the Dutch legal system!

Among the people who signed the petition are many scientists from abroad, but this is of no concern to the Dutch lawyers. Also, it is clear from comments made by the people signing the petition (over 1250 now, see: Petition for reopening the Lucia de Berk case) that they actually studied the verdict, something van Maanen clearly did not do.

Professor Gerard ‘t Hooft , Nobel prize winner physics and one of the many scientists who signed the petition, states for example: “That the Court pretends not to have used arguments of a statistical nature is contradicted by the wording of the verdict itself”. So he actually studied the verdict. I also studied the verdict and analyze it in The Lucia de Berk case, part 2. The statement that the verdict does not use arguments of a statistical nature, also issued to the Dutch newspapers, is simply a lie.

Moreover, a number of people who have initiated the petition, together with Richard Gill who finally took it on him to start the Petition for reopening the Lucia de Berk case on internet, and who are among the people who signed the petition, have in fact read all the files connected with the case, in particular the medical files. On the other hand, during the trial only a biased summary of the medical files was shown to the consulted experts. One of these consulted medical experts even wrote a letter to the president of the Court, complaining about the fact that only a selection from the medical files was presented to her during a session of the court, a selection which moreover later turned out to contain incorrect information, as was publicly revealed in 2006. So van Maanen’s accusation that the people who signed the petition did not know the files is totally beside the mark; the people who initiated the petition read all the files, but also have additional information. They made their conclusions public, and these publicly available facts, together with the publicly available verdict, made people sign the petition.

Somewhat amusingly, professor Ybo Buruma, who supervises the commission for evaluation of closed cases CEAS, a (much) weak(er) version of the British Criminal Cases Review Commission (CCRS, see the references below), states in a monthly for the Dutch prosecution officers which has the remarkable title “Opportune”, see Opportuun, that the commission CEAS continuously reasons from what is not in the files. So the Dutch lawyers Buruma and van Maanen seem to have a rather different view on what is really important: van Maanen states that non-lawyers should keep their mouths shut because they did not have access to all the files and Buruma states that it is very important that the commission CEAS reasons from what is not in the files.

Furthermore, professor Peter van Koppen states in the journal for the Dutch lawyers NJB that the scientists from abroad who signed the petition for reopening can base their “underbelly feeling” only on “disinformation which appeared in foreign journals”. With the latter he aims (I guess) for example at the rather prominent international journal Nature, where the misuse of statistics in the Lucia de Berk case was discussed, see Conviction by Numbers, Nature, January 2007. Prof. Peter van Koppen is a “law psychologist”, just as his colleague Prof. Henk Elffers, who spoke the by now famous words: “Honoured court, this is not a coincidence. The rest is up to you”, and who was the “statistician”, consulted by the court; for more information on his role in the Lucia de Berk case, see, e.g., The Lucia de Berk case, part 2. But in their signing of the petition these scientists from abroad were actually also fighting against both power (the monopoly lawyers have in the Netherlands) and stupidity.

We have a village in the Netherlands, called “Staphorst” (for information on this village, see, e.g., Staphorst; Staphorst and other similar areas in Holland are classified as risk areas by the World Health Organization, the only such areas in Europe), where people not belonging to the village were spit upon and subjected to other types of degrading behavior. Also, if a man and a woman who were not properly married (to the “other party”) had “done it” and had been caught in the act (or something close to it, I guess), they were run around in a cart through the village. This is the real meaning of the Dutch expression “volksgericht”. This is also exactly the right word for the way Lucia de Berk has been treated by the hospital where she was employed and, subsequently, for the way she has been treated by the Dutch lawyers. The last “volksgericht” in Staphorst was in 1961. Dutch Professors of Law Psychology like van Koppen seem to want to make the Netherlands the “Staphorst of the world”. It is all extremely depressing.

References: for readers who can read Dutch: van Maanen’s contribution to the Dutch Journal for lawyers: (NJB) is: van Maanen (in the issue of NJB of January 4, 2008), and van Koppen’s continuation on van Maanen’s reaction is given in: van Koppen (in the issue of NJB of January 11, 2008). Harald Kunst wrote a letter to the journal NJB, which first had “not been received”, and next has been rejected for publication, since the NJB “closed the discussion”. Since I think that his reaction is completely to the point, it is given here (in Dutch): de volksrechter (reference added January 25, 2008).

In an interesting article in the Dutch newspaper De Volkskrant, of January 19, 2008, Innocent behind bars by Menno van Dongen, one can read that presently England is far ahead of the Netherlands in giving the oppurtunity to reopen a law case. Since 1997 about 400 cases have been reopened by the Criminal Cases Review Commission (CCRS). These were cases dealing with serious criminal accusations: murder, rape, violence and drug dealing.
In comparison, in the Netherlands one has only been willing to reopen three such cases since 1997, one of which is the Schiedam Park murder, see Miscarriage of justice, where another person than the convicted one confessed (see above). Not counting the Schiedam Park murder, we even only have two such cases in the Netherlands since 1997!

Nevertheless, the head of the Dutch prosecution officers, Mr. Harm Brouwer, has stated that he is not in favor of a commission, comparable to the Criminal Cases Review Commission in the Netherlands: “it does not fit in the Dutch system of law”. I guess he fears loss of power, a fear (apparently) shared by the Ministry of Justice, which is also not in favor of a commission of this type. In an interesting addition to this article: “In 70 % of the cases the judge revokes the verdict”, one can read that in 70 % of the cases the original verdict is declared non-valid. It is mentioned in this article that CCRC has 103 employees, of which 11 are “Commissionars”, appointed by the queen, and that CCRC has a budget of about 10 million Euros per year. How long will it take before the Netherlands will have something similar?

The petition for reopening the Lucia de Berk can still be signed, see: Petition for reopening the Lucia de Berk case.

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8 Responses to Power and stupidity

  1. aernout van Enter says:

    Ik heb na enige aarzeling de petitie van Richard Gill ondertekend, niet als expert (al ben ik wetenschapper van beroep). Ik heb weliswaar niet al de dossiers gelezen maar na:
    1)het rapport van het openbaar ministerie lijkt de juridische kant zwak
    2)de statistische kritiek van mensen als Gill, Van Zwet, etc, lijkt de statistische kant zwak
    3)de toxicologische kritiek van Uges lijkt de toxicologische kant zwak.

    Derhalve leek het me als betrokken staatsburger dat hier geen sprake was van een wettig en overtuigend bewijs. Als de afgesproken “juridische waarheid” tot een zo dubieuze uitkomst leidt, lijkt me dat, meer dan enige advertentie, het vertrouwen in de rechtsstaat te ondermijnen.

    Aernout van Enter

  2. Nico Roosnek says:

    Piet,

    I read that you are the son of a judge and probably understand both the world of the judges and that of laymen like me and can bridge those worlds. I have the following problem.
    I am supposed to know the law, meaning also to have some grasp or understanding why the trial against Lucia the Berk led to life imprisonment. However I do not understand that.
    According to law psychologists, by signing the petition to reopen the case against Lucia de Berk I joined an academic “volksgericht”. I am very puzzled.
    I heard that the judges use leaps in logic to make the impossible possible, like tunneling in quantum-mechanics. Is this an equivalent example of the famous logic leap in logic reasoning by judges? Or is this also new to you?

  3. pietg says:

    Dear Nico,

    My guess is that the word “volksgericht” has been in the back of the minds of a number of lawyers as the appropriate word for what has been done to Lucia de Berk. By a familiar psychological mechanism they apply this word now to the people who signed the petition. By using words like “underbelly feelings” (onderbuikgevoelens) they even add a sexual connotation to their accusation. This seems to be the logic of the lawyers’ reaction.

  4. Richard Gill says:

    Notice that the Grimbergen committee already used the word “onderbuikgevoelens” describing the way the case was initially handled by hospital and police and public ministry. That committee was constitutionally prevented (they claimed) from criticizing any decision or statement of the judges. The author Maarten ‘t Hart, a year and a half ago, compared the trial to a witch-trial (noting the similarity with the case of Beethoven’s great-grandmother, see also: Donald W. Macardle (1949), The family van Beethoven, The Musical Quarterly 35, 528-550, Oxford University Press).
    Observers of the original trials who preserved their critical facilities, reported the “unheimisch” feeling of rationality being replaced by an obsessive hate. The prosecution did everything they could to feed this. The judges’ faces, reading the verdict, were contorted by hate, and several times they had to take long pauses to recompose themselves. Later they apologized to the defence lawyer.

  5. Richard Gill says:

    I have been studying the articles of van Maanen and van Koppen, and suddenly enlightenment has dawned. I understand the legal mind!

    Van Maanen’s arguments are watertight.

    Suppose someone is sent to to jail for a murder. This person has always claimed innocence, and the case was always controversial.

    Then someone else stands up and says “I did it”. With indisputable proof.

    Does the action of the second person undermine trust in the rule of law?

    Yes!

    Should the second person, who really committed the crime, have confessed?

    Well, this is where lawyers disagree with “ordinary people”.

    I guess, Piet, you understood this all along… I am a bit slow sometimes.

    Is it right to reveal to people that their trust has been betrayed? They believed in Santa Claus but he doesn’t exist …

  6. Harald Kunst says:

    Richard Gill’s slides directed me to Van Maanen and Van Koppen. Since I also signed the petition, I wrote a little note on this and sent it to the Nederlands Juristenblad (NJB). My guess is that they will not accept it, but you never know. Afterwards I saw that you had already made most of my points. Much more eloquently than I did.

    Van Maanen was quite predictable, but van Koppen’s case really puzzles me. I can understand you do not have a high opinion of law psychologists. Still, several of them have done a lot of useful work in this area. In “Dubieuze zaken” (Crombag -he signed the petion-, Van Koppen -yes, him- and Wagenaar,1992) and “Vincent plast op de grond” (Wagenaar, 2006), one can find lots of hair raising examples of judicial blunders. With almost every public scandal around law cases one can see Van Koppen on television, skewering the verdict. His opinion of the way Lucia de Berk was treated, was quite scathing. In his article in NJB he states clearly that Lucia has been convicted without sound evidence and he recommends exactly that what is asked for in the petition: not an extra investigation but an immediate reopening of the case. That is why I am so astonished by his snobbish and idiotic reaction to the petition.

    Law psychologists should be contradicted when they talk nonsense. But a tribal war between law psychologists and statisticians would be an unfortunate deflection from what is really important: the way Lucia de Berk is treated and the way justice is not done in the Netherlands.

    Perhaps it is a good thing that lawyers dream of “volksgerichten”. In the end, their ridiculous fears of angry mobs, out to hang them on the highest tree, may be the only thing that incites them to mend their ways.

    For the record: I am a psychologist, but I am not specialized in law psychology.

  7. pietg says:

    I read your note for the Dutch Journal for Lawyers (NJB) and think it was excellent and completely to the point. If NJB will not accept it or does not dare to publish it, I’ll post it on this Blog site and will perhaps even translate it, in order to reach a larger audience. Too many things have gone wrong in the (application of the) Dutch law system and this should also be known internationally.
    I would really prefer to do other things than writing about it, but in my opinion things have gone too far astray in the Netherlands in this respect. The most conspicuous facts are the absolute unwillingness of Dutch judges and prosecutors to admit errors and the endless postponement of the reopening of a case, even after a committee of lawyers (appointed to this end) has advised reopening. In the Lucia de Berk case one even had the audacity, or perhaps I should say the cowardice (since it is the opposite of courage), to introduce a new barrier before a possible reopening will even be considered by the Supreme Court.
    In England about 400 cases, where there was the accusation of a serious crime, have been reopened since 1997. In the Netherlands only 2 such cases were reopened, if we do not count the Schiedam Park murder, where the convicted person has been lucky because someone else confessed. Are the Dutch judges infallible, in contrast with the English judges? In seventy percent of the reopened cases in England the original verdict has been revoked (see above). But the Grimbergen committee was not allowed to say anything about the way the judges had operated in the Lucia de Berk case in the very narrow specification of their task (which nevertheless still took them a year to finish).
    In England the trust in the English law system has increased since the introduction of the Criminal Cases Review Commission. The Dutch lawyers don’t seem to realize that the way they operate will lead to a steady decrease of the trust in the Dutch law system.

  8. jdc325 says:

    Good post Piet. I haven’t heard anything about this case since the three-month release was announced in April.

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