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The battle for justice part 2: the problem with nolle prosequi

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

Continuing from last post, the case against me was dropped a short while after the arraignment, but not before the police made a visit to my home, the soi-disant scene of the crime. They’d never visited my home or made any contact with me since the arrest, many months before, but it seems the arraignment had spurred them, or forced them, into action.

This was something I’ve never really got. Like many of us I’ve watched my share of crime shows and whodunits. Typically, the arrest comes as the final scene, after weeks and months of painstaking sleuthing. Yet my arrest seemed to have come at the start (though I did have to wait for a while), before any questioning. And then, after the arraignment, the police suddenly showed up at the putative crime-scene to do their sleuthing at last.

I knew what they’d come for, too. Long before, my lawyer had told me some of the details of the boy’s claim. I had apparently raped him in the toilet, after which he’d gotten away and locked himself in the bedroom. I was able to tell the lawyer that none of the bedrooms in my house were lockable, so that part of his story was demonstrably false, so at long last they’d come to check. And then, almost the next day, I was told the case was over.

I don’t remember being sent any paperwork to that effect but I suppose I must have. I was just relieved it was all over, that sanity had prevailed, etc. But this year, more than 11 years on, I came to realise, thanks to a screening process by the DCSI (the South Australian government’s Department of Communities and Social Inclusion), that it wasn’t over, and that it would never be over. This was because of the little matter of ‘Nolle Prosequi’:

The entering of a nolle prosequi by the Director of Public Prosecutions means that he is not pursuing the prosecution at this stage. Theoretically he may pursue the prosecution at a later stage, but this rarely, if ever, happens. Normally the DPP does not give a reason for such a decision, but it is usually based on a problem with the evidence he has assembled. In the course of assembling it, or after it has been assembled in a book of evidence, a problem may arise with a witness or a crucial part of it, that would make it difficult to proceed. Difficulties of this nature usually undermine the whole basis for the trial. Even if new evidence is discovered, the problems with the old evidence remain. If a nolle prosequi is entered, and then registered by the court, the accused is discharged and free to go. He or she enjoys the presumption of innocence that all accused people enjoy until they are convicted of a crime beyond all reasonable doubt. (Carole Coulter, Irish Times, April 2006)

 

Nolle prosequi... is a legal term of art and a Latin legal phrase meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. It contrasts with an involuntary dismissal. Legal effect [in the USA]: The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge. Effect on future employment [in the USA] Federal agencies, especially the military, view nolle prosequi as an unfavorable judgement. This has the effect of requiring a waiver submission for service, or the outright denial of employment (WIKIPEDIA).

Nolle prosequi was the ‘finding’ in my case.

As indicated in the quotes above, nolle prosequi can be interpreted as anything from ‘presumed innocent’ to ‘still pretty suss’, and it seems any department, any arm of government, is at liberty to interpret it as they wish (and given the current environment, they’re more than likely to err on the side of the child/accuser). But here’s the kicker, as the yanks say. And it’s an extremely important and fundamental kicker for my argument. Once arrested (for sexual abuse or rape, say) nolle prosequi is essentially the best any accused can hope for!! This is the dirty little secret your lawyer is most unlikely to tell you about.

Let me explain. When you go and seek legal aid to defend yourself against a false charge [please, if only for hypothetical reasons, assume the accusation is false], it means you’ve already been arrested, and the DPP has already instituted proceedings against you. And once a prosecution is instituted, your lawyer will try to get it thrown out, i.e nolle prosequi. The other alternative is acquittal – but acquittal can only come after a full criminal trial. I quoted in my last post that an arraignment is the first stage of an 11-stage criminal trial in Australia. That should give an indication of just how humungous a criminal trial actually is – involving lawyers, witnesses and experts for both sides, the presentation of different types of evidence, examinations and cross-examinations, a jury presumably, and all in all a process that will tie up a courtroom for some time, with much expenditure of money and energy. So your lawyer is actually trying her best to make sure you don’t have your day in court. So nolle prosequi is the lawyer’s victory, but if organisations like DCSI interpret nolle prosequi as ‘still pretty suss’, that means you’re stuffed – for the rest of your life! If not longer.

Now, notice the statement from the DPP at the top of this post. It sounds impressive – they won’t go ahead with a case unless they have a reasonable prospect of succeeding (and this would surely mean having sufficient, or at least some, evidence). Now, let me tell you that during the whole 13 or 14 months that my case was ongoing, I was in a state of sleepless agony, and occasional rage, with the mantra ‘no evidence, no evidence’ echoing in my head, and on the day after I heard that my case was dismissed, I took to my computer and typed a terse paragraph to the DPP (yes I’m sometimes capable of terseness), accusing them of incompetence in my case, not only for seeming to pass the buck from lawyer to lawyer, but for going against their prosecution policy as stated on their website, which I quoted back to them (the policy was, I believe, worded a little differently in 2006 from the 2014 version quoted above, and I think then it actually mentioned evidence). Not surprisingly they didn’t respond, but I met my lawyer, purely by accident, a few months later and he told me my letter had caused quite a stir – which thrilled me as throughout the case I always felt like Mr Nobody or The Invisible Man. I asked him why, with no evidence at all, the case had lasted as long as it did. His response was that I was one of the lucky ones. Many people in his experience had gone through this process and been destroyed, based on no more evidence than they had against me. No more than someone’s story.

But I’ve had another insight since taking aim at the DPP all those years ago. Yes, I still think the DPP contravened their own policy by taking on my case, but I was forgetting, in my utmost naivety, the role of the police. Yes, the DPP say they won’t prosecute a case unless they have a reasonable chance of success, but when the police arrest a person and charge him with rape, the DPP obviously don’t know a thing about it. They only find out later, from the police. In other words, the DPP has cases ‘dumped’ on it by the police, and has to make the best of them. Their ‘reasonable prospect of conviction’ is based entirely on the word of the police that they have sufficient evidence. You can see here how a world of tension and acrimony might open up between the police and the DPP.

So it looks as if my anger against the DPP might’ve been misplaced. My anger should have been directed at the police. But of course if I’d written to the police about their lack of evidence, where would it have got me?

 

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Written by stewart henderson

November 13, 2017 at 2:53 pm

Posted in argument, work

Tagged with , , , , ,

Good Friday? We object..

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profound spirituality lives on

profound spirituality lives on

Canto: I’m sitting here thinking I’d like to take a ride to the beach and then breakfast at a seaside caf but I can’t because it’s ‘good Friday’ and every such outlet in this state is shut down.

Jacinta: Right, and so what’s so good about Good Friday? I’ve heard tell it’s good for us to have a complete day off from shopping or having paid servants wait on us – a bit like having a day off from using electricity or motorised transport or – imagine it – a whole day in which smartphones couldn’t be used. We would somehow be better human beings, more appreciative of the first-world splendour we bask in, if we experienced the horrendous suffering of being deprived of it for a day.

Canto: Well I’ve had thoughts of that kind in the past, but I’d rather be up-front and call it first-world-free day or some such, because we both know good friday isn’t about deprivation of our favourite indulgences, or, if it is, that deprivation is supposed to remind us that on a ‘good day’ around 2000 years ago someone was crucified. A horrible death but not so horrible in this case because this particular guy was an immortal being in disguise who is now still alive and all around us and loves us terribly much. So it’s all good.

Jacinta: Yeah…right… sooo…

Canto: Okay the reason they say it’s good is because this immortal being died, or pretended to, or went through enormous suffering, because this allowed us to be saved.

Jacinta: Ahh right… saved… saved… ummm

Canto: Look Jass … I know this seems confusing to you but if you take a thorough-going theology course, and maintain a deeply spiritual lifestyle for the next several years you might be offered a glimmer of the revelation enveloped in this outwardly mysterious form of knowing-as-being.

Jacinta: Ohhh… shit… but all I really wanted was a caffe latte..

Canto: Okay well the reason you won’t get your latte today is because a certain dwindling section of our society believes this story of Jesus on the cross is literally true, or symbolically true or true in some deep sense which is beyond our shallow faithlessness, and this section of our society, though now a shadow of its former all-powerful self, once had complete control of our polity and economy and thus dictated what holidays we should have and why. And since we really like to have holidays and it would be a pain in the national arse to rename or reconfigure them, the ship of state being very difficult to shift from its course and all that, we’re stuck with good friday until the dwindling near-minority dwindles to such a level that it becomes a national embarrassment that we’re still pretending to respect such inconcinnities.

Jacinta: Well I saw on the morning news that the Sydney fish market’s open today.. wherever that is..

Canto: I think it’s in Sydney.

Jacinta: … but nothing’s open in dear old Adelaide, the shitty of churches. I don’t think we should just sit back and accept this. Why aren’t people protesting?

Canto: Okay, yes, let’s protest. What do you suggest?

Jacinta: Well, ummm, we could write to our local MP?

Canto: Yes, that would turn the ship of state around quick smart.

Jacinta: How about a petition?

Canto: Now that’s original. We could put it out over the net through change.org or some such, and sit back and watch the overflow of community outrage…

Jacinta: Well the fact is, as you say, we love our holidays, so many people are prepared to be completely hypocritical about the reason for the season, even to the point of accepting the inconvenience of one complete shut-down day…

Canto: So that’s the end of our protest?

Jacinta: Pretty much. Join me for a nice breakfast out somewhere tomorrow morning?

Canto: You’re on.

jesus_hates_you_mug

Written by stewart henderson

March 25, 2016 at 1:24 pm

stress and resilience: what rats are telling us

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rat-on-sequencer-color-798010

I recently read that when you go to the dentist, an almost archetypal stressful experience, your stress will be massively diminished if the dentist tells you, before picking up the drill and attacking your enamel, exactly what he or she plans to do and why. It’s a finding that can surely be safely extrapolated to many other experiences in life, and, perhaps obscurely, it reminds me of the famous story by Franz Kafka, The Trial. K is arrested one fine morning, and he doesn’t know why and he never finds out despite his best efforts, and then he’s executed (excuse the spoiler). A classic literary exploitation of the horror of stress. It reminds me also of how our co-op was treated by its government regulating body, but more of that in later posts.

Kelly Lambert, a veteran stress researcher and rat-lover, describes our growing understanding of the impact of stress and how it might be avoided and treated as one of the most important developments in modern medical and health science. In The lab rat chronicles Lambert displays a pragmatic and down to earth view of stress and depression, with an emphasis on prevention and action rather than ‘treatment’ and medicalisation, which I heartily endorse, while always recognising that there are complex psychological factors that can weigh against individuals taking charge of their lives.

Lambert’s intriguing rat stories serve multiple purposes, of which altering the common view of rats (as pigeons sans wings) is not the least. She teaches us, I think, that we can and have learned a great deal from experiments with animals, and especially rats, but we need to treat them with respect – and can ultimately learn a lot more from them if we do. Among the things they can teach us about are resilience, endurance, reciprocity, social capital, healthy living and self-reliance, and no kidding. But it’s the subject of stress, and building up a resistance to it, that most concerns me here.

Our stress responses are of course necessary and valuable. They motivate us to save ourselves when under attack, or to perform the unpleasant task we must do as part of our job (the prospect of being sacked concentrates the mind wonderfully). Yet the negative physiological effects of stress are the same, whether you’re facing a charging elephant or an angry supervisor. So how do we maximise the motivating force of the stress response, while minimising the negative impact? How do we make ourselves more resilient?

My account here will be abridged – stress is a very complex subject, and I most certainly won’t be giving a full account of it. The first thing is to be aware of stressful situations, of the type I described at the top of this post.

Interestingly, the term stress as applied to humans, other animals and plants, is of very recent coinage, and it’s actually a misapplication from engineering. According to Lambert, in the 1940s, a famous researcher, Hans Selye, began injecting rats with a hormone extract to observe their responses. He noted a heap of immediate negative reactions including swollen adrenal glands, shrivelled thymus glands and stomach ulcers, and was keen to write them all up, but felt he needed more baseline data, so he tried the same experiment, this time using a saline solution to inject the rats with – a placebo, effectively. What he found was the same heap of negative responses. How could this be? It eventually dawned on him that his rough handling of the rats in order to inject them, as well as chasing the scared rats around the cage and dropping them from a height as they squirmed to get out of his hands – all of this was the cause of the adverse reactions. Selye was so intrigued by this that he ditched the hormone extracts and began running experiments to test the rats’ physiological responses to adverse events, deprivation, novel scenarios and the like. This was such a new direction in research that Selye had to find terminology from another discipline to describe the state of mind of the rats as evidenced by their physiological and hormonal responses. He found what he thought he needed in the literature of engineering, with its twin terms stress and strain, but, being a Hungarian reading in English, he appears to have misunderstood that the term stress was applied in engineering to the causal factors operating on, say, a bridge, while strain was a description of the effects of those factors on the strength and durability of the bridge. In any case, psychology had been gifted a new term, one which has been a major feature of psychology and mental and physical health research ever since.

As the evidence mounted for serious negative effects on subjects exposed to events now deemed ‘stressful’, more consideration was given to variation within the findings, so as to better understand resilience in the face of stress. Work done with rats exposed to novel scenarios has shown that the responses vary on a spectrum from neophilic at one extreme to neophobic at the other. That’s to say, when placed in a new environment, the neophilic rats will be happy to explore it, while the neophobic ones will exhibit avoidance and a degree of inertness. Another way to categorise them is ‘bold’ and ‘shy’, and whereas bold and risk-taking creatures (it’s almost inevitable to think of teenage male humans) can create their own physiological problems, such as broken limbs or death by misadventure, the evidence in rats is that they live longer, on average, than their risk-averse fellows. The research also indicates that having the right temperament, or somehow building it into our natures, is key to coping with the day to day stresses that can accumulate in affecting our health in a host of ways.

So how do we enhance boldness or neophilia – in just the right measure – to cope with the slings and arrows? And why is it that some rats and people are more neophilic than others? Not sure that I can provide clear answers to these questions, but let’s come back to them after looking at the rat studies.

 

First, we’ve all heard of homeostasis, right? It has something to do with maintaining your body temperature and internal environment within certain parameters regardless of what’s going on outside. Fine, but studies of stress and responses have added a new, related term, allostasis, to the physiological lexicon. Allostasis is not so much about stability as about appropriate bodily change in response to external stimuli. For example, if you suddenly consume a heap of chocolate, as I’ve been wont to do, you’ll be hoping that your body’s insulin-producing response is timely and appropriate. Neuroscientist Bruce McEwen, adapting another engineering term, introduced the concept of allostatic load, a reference to the strain on the body when it fails to adequately cope with a stressful experience, whether it be heavy lifting or the deaths of loved ones. Both the general concept of stress and the concept of allostatic load were developed by researchers observing the responses of rats.

 

McEwen injected rats with the stress hormone corticosterone for 3 weeks, and then looked for changes in the hippocampus, an area which contains many glucocorticoid receptors, implicated in stress-related responses. The hippocampus is a region essential for spatial learning and memory; it would stand to reason that stressors and memory need to be associated for effective response. The added corticosterone had the effect of reducing the connections and size of the neurons in the region. How did this downsizing affect memory and learning?

McEwen first tried to replicate this effect on the hippocampal neurons by means of stress. So instead of corticosterone injections, he placed the rats in a ‘Plexiglas restraint tube’ for a couple of hours a day for 3 weeks. The physiological changes were similar to those induced by the hormone injections.

 

Another stress experiment was tried by Lambert to see how quickly the brain could be affected. Rats were housed in cages with adjoining running wheels, and their food schedule was restricted to one hour of feeding a day. The rats responded by becoming more, rather than less, energetic, running frenetically and showing all the signs of stress first noted by Hans Selye – swollen or shrivelled glands and stomach ulcers – and shrinking of neurons in the hippocampus. But the shrinking of neurons in all these experiments was reversible, and Lambert considers that this shrinking is probably an energy-saving manoeuvre of the brain. Brains take up a lot of energy, and may react to increased hormone production by downsizing to prevent overload.

 

Returning to the temperamentally bold and shy rats, I’ve noted that the shy ones have shorter lives – 20% shorter on average. Not surprisingly, the bold rats’ hormones returned to base levels more quickly after stress than their shy kin (and often they were actual kin). Clearly, having a more exploratory nature, within limits, is more adaptive than being exploration-averse. Freezing and worrying over novel scenarios isn’t a healthy option.

 

Lambert and her students became interested in pig studies in which piglets, held on their backs for a brief period, reacted either by struggling to escape or by holding still. The struggling piglets were labelled proactive and the apparently passive ones were labelled reactive, but a second test showed that some of the piglets changed tactics. Lambert’s group tried the experiment with rats. They found that some rats were extremely active, some extremely passive, and some switched tactics from one test to another. The last group was labelled as variable or flexible copers. The question was, had this group learned something between the first and second test which had made them change their behaviour?

 

After the tests, the rats were put through an activity-stress program in which they were given a restricted feeding schedule and then were given a choice between running on a wheel or resting. The proactives and the flexible copers ran more than the reactives. The levels of stress hormone were measured in each group. The proactives had more elevated stress levels than the reactives, but, quite surprisingly, the flexible copers had considerably lower stress levels than both the other groups.

 

In another simple test with the same rats, clips were placed on the rats’ tails to see how long they would persist in trying to remove them. The flexible copers persisted longest, and generally interacted more with novel stimuli.

 

The rats were then tested for how they coped with more chronic and unpredictable stress, of the kind that might be compared with serious economic downturns as experienced in the US recently, not to mention Greece, Ireland and other countries. The rat equivalents were strobe lighting, tilted cages, vinegar in their water, and predator odours. What was found with these and other tests was that the flexible copers’ brains produced higher levels of neuropeptide Y (NPY), a neurochemical associated with resilience (special forces soldiers produce a lot of it). The flexible copers also had the highest levels of corticosterone, which assisted them in maintaining a constant state of readiness to meet changing challenges.

 

So, how to turn rats – and people – into more resilient, flexible copers? Perhaps a bit of training might be required. An experiment was conducted in which the profiled rats were assigned to two groups, a ‘contingent training’ group, in which reward was contingent on effort, and a control ‘noncontingent training’ group, the trust fund rats. It was expected, or hoped, that the passive and more stressfully active rats in the contingent training group would, feeling an enhanced sense of control over their environment, increase their NPY levels and generally behave in more resilient ways. The contingently-trained rats, regardless of their coping profiles, all performed better at trying to get rewards (froot loops!) out from inside a cat toy (the task was impossible, but they were being tested on persistence). So far so good. Next, the rats were asked to perform a swim test, which I won’t describe here, but the results were excellent for the flexible copers, who improved their performances even more (and had higher levels of the hormone DHEA, associated with resilience), but the other two profile groups didn’t improve. A disappointing but not entirely surprising result.

A more interesting result came out of the control group. The flexible copers in that group, after a regime of easy benefits, reduced their willingness to make an effort when confronted with the need to do so to gain rewards in subsequent tests. I’ll quote Lambert here at some length:

Instead of having no effect on the coping responses, the trust fund condition erased the advantage typically shown by the flexible copers. The lack of a predictable contingency formula accompanying the presentation of life’s sweetest rewards reset the behavioural computations underlying the rats’ motivation to work for their rewards. They were now characterised by less flexibility in their responses and a shorter tolerance for work that didn’t immediately produce a reward. Had we systematically spoiled our rats? Once again, animals that were more sensitive to associations between effort and consequences would likely be even more affected by the trust fund noncontingency condition; after the fact, it all made so much sense.

So what can we take from these complex but often striking findings? Of course it goes without saying that we’re not rats, but I also like to think it goes without saying that these findings are highly relevant to humans, and all other mammals. Above all we find that removing us from a state in which we have to strive for rewards tends to make us slothful, intolerant and complacent – ‘spoiled’. A term which now has added resonance. How we build in that resilience in the first place is another question – it might be that very early experiences in which we’ve made positive connections between effort and reward, strongly reinforced from time to time, make for a kind of ‘natural’ resilience which we wrongly consider innate. This has always been my suspicion, that the earliest experiences, even in the womb, can set a strong pattern, which is what we’re talking about when we note that a baby seems to have already a set character, whether timid or ebullient, from birth. That character, when it is ‘resilient’, can be spoiled, so that’s something to watch out for. And as to how a set character which is non-resilient can be transformed into a flexible coper, that’s a tougher problem, as you’d expect.

What I like about Lambert’s approach is that she’s always looking for how we can improve our well-being without resort to medications, ways of positively altering our hormone regulation system through behavioural change, rather than through resort to pills. As she points, the use of anti-depressant medications has sky-rocketed since the mid-nineties, as have diagnoses of depression and related disorders. Something’s definitely wrong here. You’re not likely to increase resilience with pills. The good thing is that more and more researchers are coming to realize this, and looking to behavioural change, from exercise to social interaction to the creation of challenges and rewards, for the answers.

 

 

Written by stewart henderson

June 30, 2013 at 8:21 pm

just touching base

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Just to say that I’m currently quite busy, under pressure to come up with good teaching for my Certificate 4 in TESOL, and under pressure to present evidence for my accredited teaching at the community centre I’m attached to, so blogging and my future podcasting projections are taking a back seat for a while, but I’ve been thinking a bit about my lifelong learning project, which I planned to associate with a new blog. I’ve decided that’s a bad idea and I need to keep everything under the umbrella of this blog. I’ve also been thinking that the title ‘lifelong learning’ is a bit naff, and I need a more lively one for the podcast. My current thought is for ‘A fountain of good stuff’, which might attract more young people, and has a kind of casual enthusiasm about it. Such a title might also encourage me to be more casually enthusiastic in my presentation. So, when I get a bit more time, I’ll transfer the lifelong learning stuff I’ve already done, podcasts and transcripts, to this blog, with a bit of enthusiastic tweaking. I’ve done two podcasts, which I’ll re-record, and I’m halfway through writing up a third. When that’s all done I plan to submit them to itunes, and we’ll see what happens.

All this by way of apology…

Written by stewart henderson

November 1, 2012 at 8:01 am

Posted in education, health, work

Tagged with , ,