Killing the Presumption of Innocence


It was a serious point of disagreement Plato had with Athenian democracy.  Made up of citizens and ostensibly judging his teacher Socrates for crimes against the community, this was a form of crude democracy in action. It was arguably democratic, but it was hardly reasoned.  If anything, it reeked of reactionary tribalism.  In more recent times, the spectacular disappearance of the private world before the noisy babble of social media, eroded by unprecedented intrusions and a distinct lack of judgment, suggests that we are seeing a different sort of mass trial of those suspected of crimes.

The disappearance of Melbourne’s Jill Meagher, an Irish-born employee of the Australian Broadcasting Corporation, and the subsequent discovery of her body Friday morning in Gisborne South, has produced its fair share of buzz in terms of sympathy, if one dare use that term here. Messages of condolences are being sent and posted at frenzied speed.  But this week’s coverage of the case has also managed to tap into the primordial urge for capturing and condemning the person deemed responsible, in this case, a 41-year-old Adrian Ernest Bayley.  Meagher’s uncle Michael McKeon discussed the search and the role played by social media.  “We believe that it has helped us in the search, but it’s not the outcome that we had hoped and prayed for.  We thank the people around the world who have helped support us” (The Age, Sep 28).

Advice and observations are being offered in generous doses in a manner that can only be described as canned and sterile, a manner suggested by the absurd proposition of “liking” a Facebook page about Meagher’s death. (Some 31,000 “likes” were registered as of this writing.)  A photo showing homicide detectives supposedly at the scene where the body was found is also to be “liked” and “shared”.  (Incidentally, 332 “likes” feature for that grim subject matter.)

Suggestions are never far.  Never “split up with your group of friends until you are safe with someone or home” suggested one post on the Find Jill Meagher site.  Others are happy to venture into the realm of half-baked psychology.  “Closure has been found, now the family can be reassured Jill will be with God in Heaven, and now focus on with the life in hell that the murdering filth will be faced with”. Then, that all too familiar nod in favour of surveillance when CCTV finds its way into “capturing” a suspect.  “CCTV footage was not able to save your life,” goes one post, “but was able to bring you home to your family.”

Twitter and Facebook have become haphazard tribunals of enraged justice and voyeuristic engagement.  “Shoot the gutless bastard,” suggested one FB user.  Another felt a bit of innovation was in order. “He should be stoned to death in the nude by women.”  Regulations are simply not in place to protect the presumption of innocence, a presumption that has an all too easy way of being trashed when it inconveniences. This goes for prosecutions who have a habit of misunderstanding the burden of proof, but it also for those of the public who never let any burden of proof trouble them.  Inside the heart of the overly concerned citizen is a vigilante waiting to get out.

Other avenues of crude speculative fantasy have also come into being, satisfying a certain lust for the whodunit scenarios.  Websleuths.com is one such forum where the grotesque and the bored meet to ponder theories.

It is a measure of the seriousness of the situation that the Victoria Police went so far as to post a warning to “remember that it is inappropriate to post speculation or comments about matters before the courts.  We ask you to refrain from posting anything on social media that would could jeopardise or endanger the presumption of innocence, as this has the very high potential to interfere with the administration of justice.”

In the case of the accused in the Meagher case, 18000 “likes” have been registered for a hate group site targeting the accused.  Such behaviour, in time, may well incapacitate a credible trial by jury.  Lawyers are still wondering whether social media has yet found its way into the sacred stalls of jury members, though studies have been done in the United States examining the social media antics of juries during a trial.  Megan Dunn’s Jurors’ Use of Social Media During Trials and Deliberations (Nov 22, 2011) for the Federal Judicial Centre found that only 30 judges of the 508 responding brethren “detected social media use by jurors during trials or deliberations.”

Social media and juror behaviour have certainly caught the eye of some jurists.   The Arkansas Supreme Court reversed a death sentence of Erickson Dimas-Martinez in Benton County on December 8, 2011 due to the Twitter tendencies of a juror during deliberations.  As U.S. District Court Judge Amy J. St. Eve and Michael A. Zuckerman note in the Duke Law & Technology Review (Mar 12, 2012), “jurors have committed significant and often high-profile acts of misconduct” through social networking services.

Serious problems lie in the realm of such cyber deliberations on a person’s guilt.  Legal remedies are growing, but remain few and far between.  Injunctions in a local jurisdiction can be deemed ineffectual if they can’t affect websites which have no presence in a said country (“presence” itself being a fundamentally problematic assertion in cyberspace).  That said, carriers are not immune, with Yahoo 7’s search engine recently being held responsible for defamation (Trkulja v Yahoo!).  Social media’s function has been to aid and abet revolutionary fervour, but its role can just as simply be the opposite, feeding a very a different set of assumptions.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

November 30, 2015
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