When some trials are more equal than others

As an international innocence researcher, I have followed with interest New Zealanders debating the meaning of the acquittal of Philip Polkinghorne, who was accused of the murder of his wife, Pauline Hanna. It fascinates me because I research and write about the meaning of ‘exoneration’ in the criminal justice system. The Polkinghorne acquittal exemplifies the difficulty of defining what we mean by exoneration.

Some think Polkinghorne’s acquittal was a vindication, proof he did not murder Hanna and should not have been charged in the first place. Others view the not-guilty verdict as a wrongful acquittal, a sign the system does not work for victims of domestic violence, particularly at the hands of men who don’t look the part.

As readers will know, an acquittal is not a finding of innocence. It’s a finding that means at least 11 jurors had a reasonable doubt about Polkinghorne’s guilt. If his jury believed he probably but not certainly killed his wife, they were obliged to find him not guilty.

I’ve stayed out of the debate until now because I’m not sure how I would have voted if I’d been on Polkinghorne’s jury; if I would have had reasonable doubt about his guilt or not. But I’m deeply troubled by his acquittal, and it’s taken me a while to work out why.

As I see it, the real injustice of the Polkinghorne acquittal is that he didn’t get a regular guy trial. He got a rich white guy trial. Polkinghorne was afforded privileges most defendants, and definitely most murder defendants, don’t get.

First, he was released to home detention pending his trial rather than remanded to Mt Eden Prison like most people accused of murder. The conditions of his home detention appeared to be pretty loose for someone accused of the premeditated strangulation of his wife and staging it to look like a suicide.

Second, Polkinghorne spent his trial sitting at counsel table next to his lawyers in a suit. Most murder defendants in Aotearoa New Zealand face their accusations from the dock, a plexiglass cage from where, if they want to talk to their lawyers, they must do so in full view of the jury using a phone that looks like a prop from an old prison movie. I’ve always wondered how the defendant is even supposed to signal to their lawyer that they have something they need to discuss. Secret hand signals like a rugby coach on the sidelines of the game?

I personally think that too many people are remanded to prison pending trial, including those accused of murder. Murderers have some of the lowest recidivism rates in the criminal justice system, and they rarely kill a second person while on trial for killing a first. Unless the person poses a risk to witnesses or is likely to flee, we should probably release more defendants – who are supposed to have a presumption of innocence prior to trial – until and unless they have been convicted of something. Pretrial detention is known to have deleterious impacts on defendants’ physical and mental wellbeing, their ability to mount a defence, their likelihood of acquittal, and the sentences they face on conviction.

As an American, I was gob-smacked by the whole ‘dock’ thing here. I grew up watching old English crime dramas but I always assumed that the dock – like the wigs and robes – was artistic license. I was shocked when I I first saw the plexiglass cage in the middle of the courtroom for defendants. Using a dock would be unconstitutional in the United States and Canada because it subconsciously affects the jury’s perception of the defendant as ‘dangerous’ and interferes with the defendant’s right to assist in their defence and communicate with their lawyers.

So, I am not upset that Polkinghorne was released before or not held in the dock during trial. I am upset because the rarity of these privileges leads me to the conclusion that he wouldn’t have enjoyed them if he weren’t a rich, white man rather than a ‘normal’ (poor, brown, had a violent childhood) defendant.

And I am offended by the defence he got. Most murder defendants depend on legal aid and are represented by lawyers who could not conceive of having the resources to mount the defence that Ron Mansfield mounted for Polkinghorne. It is rare for the defence to be better resourced than the Crown.

Polkinghorne got special treatment in the justice system – pretrial freedom, the ability to look calm and normal, and a million-dollar defence.

I once quipped to a friend of mine in the US who is a successful defence lawyer that, with a million dollars and unlimited time, I could get 95 percent of defendants acquitted. He responded: “Don’t be ridiculous. You’re a better lawyer than that. With unlimited time and money, you could get anyone off.”

It doesn’t really matter whether you believe the Polkinghorne acquittal is a sign the system works as intended or that Polkinghorne is one more man who got away with murdering a woman. What does matter, and is offensive, is that Polkinghorne got special treatment because of his wealth and privilege. One thing I do know: if he were poor, he’d be a prison inmate today. It’s a trial that demonstrates that we need to reform our two-tiered system of justice, because freedom should not be for sale.