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Can juries still deliver justice in high-profile cases in the age of social media?

The recent <a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382" target="_blank" rel="noopener">sudden end</a> to the Bruce Lehrmann trial last month raises again whether the jury is fit for purpose in a 21st century hyper-connected world. That jury’s service in the Lehrmann case ended peremptorily after it was revealed to the judge that material downloaded from the internet (which was highly relevant to the case and not introduced as evidence) had been found in the jury room. A retrial has been <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-retrial-confirmed-for-2023-says-act-director-of-public-prosecutions-shane-drumgold/news-story/6012323f3d863985ce5a001f10a3a7eb" target="_blank" rel="noopener">set for late February</a>. Lehrmann had been accused of raping former Liberal Party staffer Brittany Higgins, to which he pleaded not guilty. The costs so far (to both parties and the court) could well exceed a million dollars. With easy access to the internet available to any juror who owns a mobile phone, is it conceivable that all jurors will abide by the strict instructions of a judge admonishing them to pay attention only to the evidence adduced in the trial? Are instructions to jurors to avoid media sources meaningless given the accessibility of the internet? These aren’t new questions. In 2005, <a href="https://www.parliament.nsw.gov.au/researchpapers/Documents/trial-by-jury-recent-developments/jury%20and%20index.pdf" target="_blank" rel="noopener">a report</a> prepared for the NSW Parliamentary Library Research Service observed: <blockquote> Prominent cases in recent years […] have illustrated the legal problems that can occur when jurors, despite judicial instructions to confine their deliberations to the evidence before them, undertake their own research, discuss the case with non-jurors, or visit a place connected with the offence. The increasing amount of legal information available on the internet is a cause for particular concern. The Jury Amendment Act 2004 […] prohibits jurors from making inquiries about the accused or issues in the trial, except in the proper exercise of juror functions. </blockquote> But for all the warnings and threats of consequences, a juror may still stray down <a href="http://www.lawfoundation.net.au/ljf/site/templates/grants/$file/UNSW_Jury_Study_Hunter_2013.pdf" target="_blank" rel="noopener">the path of private sleuth</a>. It’s easy to do and Australians have a voracious appetite for social media. In 2018 <a href="https://www.yellow.com.au/wp-content/uploads/2018/06/Yellow-Social-Media-Report-2018-Consumer.pdf" target="_blank" rel="noopener">a survey reported</a> 62% of Australian adults use social media sites every day, and 34% use them more than five times a day. This becomes particularly problematic when the eyes of the world are fixed on cases such as these. The sudden and unexpected end to the Lehrmann trial prompts a more fundamental question: should we continue to persist with juries at all? <h2>Two sides</h2> There are two sides to the argument regarding retention of the jury. On the one hand, juries have stood the test of time. The idea of being tried by one’s peers was entrenched by the <a href="https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial" target="_blank" rel="noopener">Magna Carta of 1215</a>. Even though the jury as we know it didn’t crystallise until about 350 years ago and has been through a number of permutations since then, there would be few people who could argue against its symbolic legitimacy given its staying power. Over that time, juries have been given sustained examination in Australia by the <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-48.pdf" target="_blank" rel="noopener">New South Wales Law Reform Commission</a>, the Queensland <a href="https://www.ccc.qld.gov.au/sites/default/files/Docs/Publications/CJC/The-jury-system-in-criminal-trials-in-qld-Issues-paper-1991.pdf" target="_blank" rel="noopener">Criminal Justice Commission</a>, the <a href="https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/jury_service/report_volume_1.pdf" target="_blank" rel="noopener">Victorian Law Reform Committee</a>, and most recently by academics at <a href="https://cdn.csu.edu.au/__data/assets/pdf_file/0007/3452182/Jury-Reasoning-v2-NEW-BRANDING.pdf" target="_blank" rel="noopener">Charles Sturt University</a>, to name a few. Juries have survived largely intact throughout this exercise. On the other hand, there are doubts about their efficiency. Juries took a hit after the High Court decision <a href="https://theconversation.com/the-jury-may-be-out-on-the-jury-system-after-george-pells-successful-appeal-135814" target="_blank" rel="noopener">in the George Pell appeal</a> where the judges, in allowing the appeal, ruled that no jury, properly instructed, could have reached a guilty verdict in his trial. What’s more, it’s overstated to say that trial by jury is a fundamental bulwark of fairness in the criminal justice system. Indeed, 92% of criminal matters in Australia are dealt with in the <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release" target="_blank" rel="noopener">magistrates courts</a>, where there are no juries. Of the remaining 8% referred to the “superior” criminal courts (Supreme, District and County), more and more defendants are choosing “judge alone” trials (in jurisdictions where that option is available). For example, in NSW, <a href="https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-a-flawed-approach-to-criminal-justice-137397" target="_blank" rel="noopener">up to a quarter of accused persons</a> are now electing to be tried without a jury. Other studies have highlighted how jurors <a href="https://www.sciencedirect.com/science/article/abs/pii/S0194659507000470" target="_blank" rel="noopener">overrate DNA evidence</a> despite judicial directions, which may lead to <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:10533" target="_blank" rel="noopener">far more jury convictions</a> than are warranted, and how jurors’ perceptions of guilt and innocence can be affected by the <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:44141" target="_blank" rel="noopener">positioning of defendants</a> in the courtroom. <a href="https://espace.library.uq.edu.au/view/UQ:331175" target="_blank" rel="noopener">Another study</a> found that although jurors report they understand directions, they often don’t appear to use those directions in arriving at a decision. And finally, as the Lehrmann trial has illustrated, it’s not unusual for jurors to ignore or misunderstand the instructions that have been given to them. But, what about the ability of juries to apply some of their own “commonsense” justice? True, there are examples of juries wielding their own commonsense stick. For example, a verdict that <a href="https://www.coursehero.com/file/p7dtm6g/R-v-R-1981-28-SASR-321-South-Australian-Supreme-Court-King-CJ-Jacobs-Zelling-JJ/" target="_blank" rel="noopener">occurred in 1981</a> when a South Australian jury returned a verdict of not guilty for a woman who had been charged with the murder of her husband. The jury decided that the defence of provocation (only available to reduce murder to manslaughter) exonerated her, figuring that, in the time before the victim’s death, his severe and persistent abuse of his family had pushed his wife to breaking point. There is, however, a contrary argument. Research has revealed that “commonsense” <a href="https://onlinelibrary.wiley.com/doi/epdf/10.1111/lapo.12181" target="_blank" rel="noopener">comes with coded biases</a>, such that telling jurors to use their commonsense is futile, given it’s difficult (if not impossible) to erode such biases. <h2>Are there other options?</h2> One alternative to the jury is mixed judiciaries used in some European countries, where one may find a panel of judges or <a href="https://academic.oup.com/book/32863/chapter/275978049?login=true" target="_blank" rel="noopener">a combination of judges and lay people</a>. But the common law world has never looked like following that lead. Another alternative in use in Australia is a judge alone trial, although <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11" target="_blank" rel="noopener">that option</a> isn’t always available, and by virtue of <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11" target="_blank" rel="noopener">Section 80 of the Constitution</a> isn’t available in a trial of a serious federal offence. Indeed, there’s no guarantee that judges themselves are immune from social media influences. While there’s a widespread belief that judges are more capable than juries of putting <a href="https://chelmsfordlegal.com.au/trial-by-judge-alone-is-it-possible-and-if-so-is-it-preferable/" target="_blank" rel="noopener">to one side their own prejudices</a>, the rules regarding sub judice contempt (discussing publicly a matter that is before a court in a manner that may influence the outcome) applies equally to judge alone and jury trials. Adding to the policy confusion, there’s some evidence trials by judge alone do make a difference to the outcome. The NSW Bureau of Crime Statistics <a href="https://stacklaw.com.au/news/criminal-law/trial-by-jury-vs-trial-by-judge-alone-whats-the-difference/" target="_blank" rel="noopener">examined NSW trials between 1993 and 2011</a> and found defendants were acquitted 55.4% of the time in a judge alone trial, compared to 29% in a jury trial. Another reform idea is to allow jurors to <a href="https://scholar.google.com/citations?view_op=view_citation&hl=en&user=dMsPrLwAAAAJ&citation_for_view=dMsPrLwAAAAJ:7PzlFSSx8tAC" target="_blank" rel="noopener">raise questions with the judge</a> during breaks in the trial, including asking about things they may have “accidentally” come across on social media. A judge could send the jury out while the lawyers present to the judge how they think the questions should be handled and answered. However, this idea has yet to excite policymakers. In the end, we must accept there are flaws in jury process. But finding acceptable alternatives has proved difficult, hence the reluctance of governments to abandon the status quo. Judges will continue to warn against private sleuthing, but one suspects that it will, from time to time, continue regardless. One can only hope the disaster that befell the Lehrmann trial sends a salutary lesson to prospective jurors henceforth: listen to what the judge tells you, and during the course of the trial leave your favourite search engine alone. This article originally appeared on <a href="https://theconversation.com/can-juries-still-deliver-justice-in-high-profile-cases-in-the-age-of-social-media-193843" target="_blank" rel="noopener">The Conversation</a>. Image: ABC

Legal

Stunning developments in rape trial of Bruce Lehrmann

The jury in the rape trial of Bruce Lehrmann has been dismissed with no verdict after a juror accessed material that was not admitted in court. Mr Lehrmann has pleaded not guilty of raping former Liberal staffer Brittany Higgins in Parliament House after a night out drinking in March 2019. The trial ran for 12 days with 29 witnesses taking the stand before the jury was asked to deliberate on the evidence. A few days after the trial ended, the jurors could not reach a verdict but were urged by the judge to go back and come to a conclusion. Chief Justice Lucy McCallum then notified the court on October 27 that a juror had accessed evidence that was not presented in court. All 12 jurors were called into the ACT Supreme Court and questioned after an academic paper that reported on how often false rape accusations were made was found. "During routine tidying of the jury room by three sheriff's officers after the conclusion of proceedings yesterday, one of the officers accidentally bumped one of the juror's document holders onto the floor," she said, ABC reported. She said she had no other choice but to dismiss the jurors despite warning them “at least 17 times” to only discuss the points said in court. "You must not try to undertake your own research," she said she told them. "You must rely exclusively on the evidence you hear in this courtroom. "If you are learning something about this trial, and I'm not there, then you should not be doing it." Despite dismissing the jurors, Justice McCallum thanked them and told them that their time was not wasted. "This may come as a frustration to you after the hard work you all put in, and I want to convey my extreme gratitude," she said. "I don't want you to leave court thinking this has been a waste of time." Mr Lehrmann was granted bail until the new trial which is scheduled for February 20, 2023. Outside the court, an emotional Ms Higgins then delivered a tearful speech in which she said she “chose to speak up” to help others who were in a similar situation. As a result, Mr Lehrmann’s lawyers are now seeking urgent legal advice from police over whether Brittany Higgins' speech outside the ACT Supreme Court could constitute contempt of court. Mr Lehrmann’s defence barrister Steve Whybrow later confirmed In a statement that he had referred the matter to police. “When we left Court this morning, I indicated to the gathered media that given this matter was ongoing and a date of 20 February 2023 had been fixed for any retrial, it would be both inappropriate and irresponsible to make any further comment at this stage,” the statement read. “I understand the complainant and other members of her support team were all seated in Court this morning when the Chief Justice discharged the jury and made strong comments about people making statements or comments that could prejudice a fair trial. “Notwithstanding Her Honour’s admonition, the complainant proceeded to give what appears to have been a pre-prepared speech to the media outside the Court.” “We have brought these comments to the attention of the Court and the Australian Federal Police, and it is not appropriate for Mr Lehrmann or his lawyers to make any comment as to whether the complainant’s statements might amount to a contempt of court offences against the ACT Criminal Code. “I urge all media to show restraint in reporting this matter and in particular in republishing the statements made by the complainant. “Neither Mr Lehrmann nor his lawyers will be making any further comment on this matter at this stage.” Images: ABC

News

Jury’s in for ivermectin: “No clinical significance.”

At last, one of the largest and most rigorous clinical trials to test ivermectin as a COVID treatment has published its results in the prestigious New England Journal of Medicine. The fervent belief for many was that ivermectin – originally a worming medication – would protect infected people from progressing to severe disease requiring hospitalisation. The trial found that ivermectin given in the first seven days after symptoms had no significant effect. For those in the know, the finding comes as little surprise. The so-called <a href="https://www.togethertrial.com/" target="_blank" rel="noreferrer noopener">TOGETHER trial</a> reported its primary results in seminars to other scientists and policy makers in <a href="https://c19ivermectin.com/togetherivm.html" target="_blank" rel="noreferrer noopener">early August</a> last year. The question is why it has taken so long to publish those results for the rest of us. The lack of clarity over the effectiveness of ivermectin has wreaked havoc. Many have foregone vaccination and even refused tested medical treatments, preferring to take ivermectin at <a href="https://www.npr.org/sections/coronavirus-live-updates/2021/09/04/1034217306/ivermectin-overdose-exposure-cases-poison-control-centers" target="_blank" rel="noreferrer noopener">unsafe</a> high doses or even veterinary pastes in the belief that it was a cure. These beliefs have been propped up by doctors around the world, including those in Britain’s <a href="https://bird-group.org/who-are-bird/" target="_blank" rel="noreferrer noopener">BIRD,</a> the US-based Front Line COVID <a href="https://covid19criticalcare.com/" target="_blank" rel="noreferrer noopener">Critical Care Alliance</a>, or <a href="https://www.theguardian.com/australia-news/2021/oct/18/doctor-who-advocated-covid-19-therapy-including-ivermectin-applied-for-patent-on-same-unproven-treatment" target="_blank" rel="noreferrer noopener">Thomas Borody</a> and colleagues in Australia. “It is puzzling that the important and completed ivermectin arm has not reported its results [till now], says Paul Glasziou ,a professor at the <a href="https://iebh.bond.edu.au/" target="_blank" rel="noreferrer noopener">Institute for Evidence Based Healthcare</a> at Bond University, Gold Coast. “The use of preprints to rapidly provide clinicians and policymakers with results is vital for uptake of effective treatments as well as stopping ineffective and potentially dangerous treatments like ivermectin.” When the COVID pandemic hit in the early months of 2020, doctors were helpless to treat the patients dying in overflowing emergency rooms. A number of randomised clinical trials (RCTs) were urgently rolled out to test drugs on the shelf – so-called ‘repurposed drugs’. These included everything from <a href="https://www.thelancet.com/article/S0140-6736(20)32013-4/fulltext" target="_blank" rel="noreferrer noopener">HIV drugs</a> to anti-inflammatory medications to tamp down friendly fire from a raging immune system. The fastest and most successful trial – dubbed RECOVERY and based at Oxford – focused on saving the lives of hospitalised patients whose death rate was 25% or 40% if they needed to be placed on ventilators. In June 2020 RECOVERY posted a <a href="https://www.medrxiv.org/content/10.1101/2020.06.22.20137273v1" target="_blank" rel="noreferrer noopener">preprint</a> – a paper hosted by a website but yet to be peer reviewed and published in a journal. It reported that the inexpensive steroid dexamethasone could cut the deaths of those on ventilators <a href="https://www.nature.com/articles/d41586-020-01824-5" target="_blank" rel="noreferrer noopener">by a third</a>. The rapid dissemination of the results by preprint is estimated to have saved the lives of thousands of people. Another RECOVERY <a href="https://www.medrxiv.org/content/10.1101/2020.07.15.20151852v1" target="_blank" rel="noreferrer noopener">preprint</a> also saved lives by reporting that the repurposed malaria and rheumatoid arthritis drug hydroxychloroquine – much feted by Donald Trump – not only failed to help hospitalised patients but appeared to make them worse. “Patients allocated to hydroxychloroquine were less likely to be discharged from hospital alive within 28 days,” the preprint reported. The TOGETHER trial led by Ed Mills at McMaster University in Ontario, Canada, was initiated in <a href="https://www.togethertrial.com/trial-specifications" target="_blank" rel="noreferrer noopener">June 2020</a>. It also tested repurposed drugs but focussed earlier, in patients who were still in the first week of their illness. The idea was to find medications that would stop them going to hospital, to contain COVID as the mild-ish disease that was experienced by 90% of patients. Unlike RECOVERY, which sourced patients from British hospitals at the height of their pandemic, the TOGETHER trial sourced its patients from Brazil. This was necessary because the pandemic seems to move in waves and by the time the time RECOVERY started, the first wave in Canada had moved on, leaving few patients to recruit to the study. TOGETHER tested some of the same drugs as RECOVERY for infected people to use at home, including hydroxychloroquine and the HIV drug combination lopinavir/ritonavir. They were not effective, as reported in a paper published in the Journal of the American Medical Association in April 2021. Ivermectin was not included in the initial line-up of repurposed drugs. TOGETHER team member Craig Rayner, a Monash University-based clinical pharmacologist who modelled the effective drug doses for the trial, <a href="https://www.smh.com.au/national/how-a-false-science-cure-became-australia-s-contribution-to-the-pandemic-20211013-p58zp3.html" target="_blank" rel="noreferrer noopener">advised against it</a> since the ivermectin dose required to kill the virus was <a href="https://theconversation.com/ivermectin-is-a-nobel-prize-winning-wonder-drug-but-not-for-covid-19-168449" target="_blank" rel="noreferrer noopener">more than 20</a> times the maximum approved dose. That was based on the reports of ivermectin’s virus-killing effects in the test-tube. But by mid 2020, ivermectin had replaced hydroxychloroquine as a popular COVID ‘cure’. Some trials showed it was effective; other didn’t – not a surprising situation in the early stages of testing of a drug. Expert pharmacologists like Andrew McLachlan at the University of Sydney declared a state of clinical ‘equipoise’, meaning the jury was out. Larger, gold standard RCTs were needed. (At the time, it had not yet been revealed that many of the studies showing ivermectin was effective <a href="https://cosmosmagazine.com/health/covid/data-detectives-dig-into-ivermectin-studies/" target="_blank" rel="noreferrer noopener">were fraudulent</a>.) Given the situation on the ground, the TOGETHER team decided to include ivermectin in their trial. “We had an obligation,” says Rayner. “We realised the answer was unknown.” The triallists recruited 3515 Brazilian patients from 12 health centres in the state of Minas Gerais. To raise their chances of detecting an ivermectin effect, the patients had to have at least one risk factor for serious disease, such as obesity or diabetes. These recruits were randomly allocated into different arms of the trial to test a number of different repurposed drugs against a placebo. The ivermectin arm treated 679 people and gave 679 people a placebo. Based on what appeared to be positive findings from smaller trials, ivermectin was used at a cumulative dose six times higher than the maximum approved dose – 400 micrograms per kg of body weight per day for three days. The maximum dose that’s prescribed for the parasitic disease strongyloidiasis is a single dose of 200 microgram per kg of body weight. The measurement endpoint for the trial was hospitalisation 28 days after treatment by the drug. By the beginning of August 2021, the researchers had their results. Ivermectin did not reduce the risk of hospitalisation. By contrast the cheap antidepressant drug <a href="https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(21)00448-4/fulltext" target="_blank" rel="noreferrer noopener">fluvoxamine did</a>, reducing the risk of hospitalisation <a href="https://www.openaccessgovernment.org/fluvoxamine-can-cut-covid-19-hospitalisations-by-30/123301/" target="_blank" rel="noreferrer noopener">by 30%</a>. So, why did TOGETHER take until the end of March 2022 to deliver the coup de grace for ivermectin? RECOVERY by contrast delivered its verdict for hydroxychloroquine in July 2020, letting the world know it was pointless and dangerous to use it as a treatment for COVID. <div class="newsletter-box"> <div id="wpcf7-f6-p187042-o1" class="wpcf7" dir="ltr" lang="en-US" role="form"> <form class="wpcf7-form mailchimp-ext-0.5.56 resetting spai-bg-prepared" action="/health/covid/jurys-in-for-ivermectin-no-clinical-significance/#wpcf7-f6-p187042-o1" method="post" novalidate="novalidate" data-status="resetting"> <input class="wpcf7-form-control wpcf7-text referer-page spai-bg-prepared" name="referer-page" type="hidden" value="https://cosmosmagazine.com/" data-value="https://cosmosmagazine.com/" aria-invalid="false" /> </form> </div> </div> One reason is that the TOGETHER trial had a much tougher remit than RECOVERY. RECOVERY tested hospitalised patients, who were easy to find being ‘captive’ in their hospital beds. Their death rate of 25% also made it easy to achieve statistically significant results. By contrast TOGETHER had to rope in the mildly ill from out in the community within seven days of their first symptoms. And given only 10% of them would ever develop severe disease, they needed to be picky, selecting those with a risk factor for severe disease such as obesity or diabetes. “We needed to have the potential to detect an effect,” said Mills. Moreover, while RECOVERY managed to roll out at lightning speed to catch the first COVID wave in the UK, by the time TOGETHER rolled out Canada’s COVID wave had receded, so they had to recruit in Brazil. And here they ran up against the problem of finding people who weren’t already self-medicating with ivermectin. That was partly circumvented by running the trial in Minas Gerais, a state in southeast Brazil where the use was not as widespread, says Rayner. However, once the TOGETHER group overcame all these obstacles, why did they not publish a preprint like RECOVERY? Mills says they decided to go the route of publishing in a major journal and that they did ‘air’ the data in talks. But journalists find it challenging to report on unpublished data since the scientists they rely on to provide independent opinions are loathe to comment on unpublished data. And the airing of the TOGETHER results did not have the necessary force to quell a degree of ivermectin hysteria that was seeing people eat veterinary worming pastes. In late August, the US FDA felt compelled to tweet: “You are not a horse. You are not a cow. Seriously, y’all. Stop it. … Using the Drug ivermectin to treat COVID-19 can be dangerous and even lethal.” Rayner adds they did not expect it would take eight months till publication and were bound not to disclose a publication date or discuss the paper with journalists. “Had we known it would take this long, we might have considered a different route,” he says. Another reason for keeping their data out of the limelight till now is that the TOGETHER scientists’ reward for carefully carrying out these difficult trials has been harassment and threats from ivermectin devotees. “This is not a matter of science but psychology,” says Mills. “It’s not unusual to see a <a href="https://www.science.org/content/article/overwhelmed-hate-covid-19-scientists-face-avalanche-abuse-survey-shows" target="_blank" rel="noreferrer noopener">death threat</a> in my inbox,” adds Rayner. “I’ve had to change my phone number. It’s pretty traumatising. We’re all feeling that way.” Being under siege has left the researchers media shy. “This report was not something I wanted to get ahead of. I fear what the release of the paper will bring,” says Rayner. The secrecy and drawn-out reporting of ivermectin trials is not limited to the McMasters group. Chris Butler, the leader of the ‘Principle’ ivermectin trial at Oxford, is similarly tight-lipped as is the leader of an NIH trial known as Activ-6. Neither of these groups responded to this journalist’s inquiry as to an expected report date. Perhaps these trials, which are based in the in the UK and US, have also found it difficult to recruit enough patients to get a statistically meaningful result. But their results, based in Western populations, will be important to compare to those of TOGETHER. Because TOGETHER did actually find a small, but not statistically significant effect, of ivermectin on hospitalisation. Could it be a true but tiny signal in the noise? Mills suspects that in some Brazilian patients, ivermectin was actually treating the underlying parasitic infections – and that improved the person’s ability to fight COVID. That’s a theory suggested by <a href="https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2790173" target="_blank" rel="noreferrer noopener">this recent analysis</a>. If that’s the case, this tiny effect of ivermectin would be restricted to people who are fighting parasitic infections. But we will have to wait – again – for the PRINCIPLE and NIH trials to be sure.  <img id="cosmos-post-tracker" style="opacity: 0; height: 1px!important; width: 1px!important; border: 0!important; position: absolute!important; z-index: -1!important;" src="https://syndication.cosmosmagazine.com/?id=187042&title=Jury%E2%80%99s+in+for+ivermectin%3A+%E2%80%9CNo+clinical+significance.%E2%80%9D" width="1" height="1" data-spai-target="src" data-spai-orig="" data-spai-exclude="nocdn" />  <div id="contributors"> <a href="https://cosmosmagazine.com/health/covid/jurys-in-for-ivermectin-no-clinical-significance/" target="_blank" rel="noopener">This article</a> was originally published on <a href="https://cosmosmagazine.com" target="_blank" rel="noopener">Cosmos Magazine</a> and was written by <a href="https://cosmosmagazine.com/contributor/elizabeth-finkel" target="_blank" rel="noopener">Elizabeth Finkel</a>. Elizabeth Finkel is editor-at-large of Cosmos. Image: Getty Images </div>

Body

Prince Andrew demands "trial by jury"

As Prince Andrew continues to fight against a sexual assault lawsuit, he has demanded a "trial by jury" to clear his name. New York court documents show that Prince Andrew has denied all allegations against him and “hereby demands a trial by jury on all causes of action asserted in the complaint”. The civil sex assault suit was brought about by Virginia Giuffre, 38, who has accused the royal of forcing her to sleep with him more than 20 years ago at the home of convicted sex trafficker Ghislaine Maxwell. In an 11-page document, Prince Andrew's lawyers responded to Ms Giuffre's allegations, saying the Duke denies any allegation that he sexually abused Ms Giuffre when she was under 18 years of age. The document, which was submitted to the United States District Court for the Southern District of New York, sets out a series of defences “without assuming the burden of proof, and expressly denying any and all wrongdoing”. The Duke's defence also claims that the case should be dismissed because Ms Giuffre is a permanent resident of Australia and that by entering into the 2009 agreement with Jeffrey Epstein she “waived the claims now asserted in the complaint”. After Judge Lewis Kaplan denied his motion to dismiss the civil complaint, Prince Andrew was previously thought to be seeking an out-of-court settlement with Ms Giuffre for an estimated $18 million: the amount he got from selling his chalet in Switzerland. Image credits: Getty Images

Legal

Ghislaine Maxwell conviction in jeopardy over juror's admission

After a highly publicised trial that saw Ghislaine Maxwell convicted for sex-trafficking, the guilty verdict is now in jeopardy. After the trial ended, a juror made comments to the media about how discussing their own experience with sexual abuse with the other jurors helped them reach a guilty verdict, and ultimately affected the jury's deliberations. Both prosecutors and defense attorneys raised concerns over this revelation, as experts told <a rel="noopener" href="https://www.insider.com/ghislaine-maxwell-jurors-could-face-charges-if-lied-under-oath-2022-1" target="_blank">Insider</a> that it's possible Maxwell's conviction could be thrown out as a result of the juror's comments to the media. It is also possible that the juror in question could face legal consequences such as perjury charges, if US District Judge Alison Nathan determines he was untruthful during the pre-trial procedure. The voir dire is the procedure that happens before a trial commences to determine if each prospective juror is suitable to serve objectively. The juror told <a href="https://www.reuters.com/world/us/some-ghislaine-maxwell-jurors-initially-doubted-accusers-juror-says-2022-01-05/">Reuters</a> that they "flew through" the pre-trial questionnaire and didn't recall being asked about any previous experience with sexual assault, as they said they would've answered the question honestly. However, court records show that the questionnaire asked all prospective Maxwell jurors, "Have you or a friend or family member ever been the victim of sexual harassment, sexual abuse or sexual assault?" Following this revelation, a second juror from the Maxwell trial came forward and said they also shared their experiences of sexual assault in the jury deliberations, and potentially swaying the guilty verdict. In the hours after the news of the jurors' own experiences came to light, Ghislaine Maxwell's lawyers have called for a retrial on her case. Maxwell was found guilty on five out of six sex-trafficking and conspiracy counts, and is facing up to 65 years in jail. Ghislaine Maxwell was arrested in July 2020 after her involvement with disgraced late financier Jeffrey Epstein came to light. Image credits: Getty Images

Legal

Juries need to be told how they're allowed to use the internet to ensure fair trials

<a href="https://theconversation.com/profiles/jemma-holt-940717">Jemma Holt</a>, <a href="https://theconversation.com/institutions/university-of-tasmania-888">University of Tasmania</a> and <a href="https://theconversation.com/profiles/brendan-gogarty-146584">Brendan Gogarty</a>, <a href="https://theconversation.com/institutions/university-of-tasmania-888">University of Tasmania</a> Juries are supposed to consider evidence without influence or bias from the outside world. However, the <a href="https://www.consultancy.com.au/news/616/9-out-of-10-australian-citizens-now-own-a-smartphone">widespread access to and use of the internet and social media</a> threatens to undermine this, with significant consequences for our criminal justice system and those within it. Given courts cannot effectively police smart-phone use they must adapt to it. This week the <a href="https://www.utas.edu.au/law-reform">Tasmania Law Reform Institute</a> completed its <a href="https://cdn.theconversation.com/static_files/files/842/Jurors_and_Social_Media_FR_A4_04_secure.pdf?1579503016">year long inquiry</a> into courts and the information age, and has recommendations as to how they can adapt. <div class="embed-responsive embed-responsive-16by9"><iframe class="embed-responsive-item" src="https://www.youtube.com/embed/RxmrZ7y9cwg"></iframe></div> <div class="embed-responsive embed-responsive-16by9">The right to a fair & unbiased trial by your peers</div> An accused person’s right to a fair trial is the most fundamental principle of our criminal justice system. It is a phrase that describes a system that affords an accused person many protections. That system relies on jurors being impartial and returning a verdict that is based solely on the evidence that is presented within the courtroom. In the past this was readily easy to achieve. Juror communications during trial hours and even after them could be controlled. News about the trial was generally a local affair, and even when it attracted national attention, the journalists needed to be in the court’s jurisdiction to report, so they and their employers were subject to the court’s authority. The shift in the way people access news, information and communications in the modern age has changed this reality. Almost every Australian has access to the internet via their smartphone or other devices, social media use is habitual among much of our population, and the internet is a ubiquitous source of information for most people. Jurors are no different – in fact, they represent the wider Australian community these statistics describe. While jurors’ smart phones are removed from them during trial, they cannot be before or after the trial period, nor at the beginning or end of the day. As a result jurors may intentionally, or simply by habit seek out or communicate information about the trial. Use and misuse of social media Between 2018 and 2020 the Tasmanian Law Reform Institute conducted an inquiry into juror misuse of the internet and social media during trials. The institute concluded there is likely to be a high, but unquantifiable and undetectable level of misuse. However, there is evidence across Australian jurisdictions that jurors have used their internet connected devices to: <ul> <li> research legal terms or concepts or other information relevant to the trial. A West Australian juror in a drug-related trial obtained information online about <a href="https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html">methylamphetamine production</a> </li> <li> research the accused, witnesses, victims, lawyers or the judge. Two South Australian jurors sitting in a blackmail trial against multiple defendants conducted online searches about the accused which disclosed <a href="https://www.abc.net.au/news/2016-06-22/jurors-fined-for-contempt-of-court/7533472">past outlaw motorcycle gang affiliations</a> </li> <li> communicate with people involved in the trial. Multiple New South Wales jurors on a long-running fraud trial <a href="https://www.dailytelegraph.com.au/jury-getting-off-their-facebooks/news-story/26e2549a7d9063ae9dae0e2a27683dce">became Facebook friends</a>, sharing posts such as a digitally altered photo of one of the jurors wearing a judge’s wig </li> <li> publish material about the trial on the internet or social media. A NSW juror sitting in a sexual offending trial posted on Facebook <a href="https://www.smh.com.au/national/nsw/facebook-post-sparks-probe-into-jury-conduct-in-sex-crime-trial-20190414-p51dz4.html">the day before the guilty verdict was returned</a>: “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” This post was accompanied with a photograph that showed images of rooms and implements by which lawful executions are carried out. </li> </ul> Misuse is under-reported. In those few instance where reports are made, fellow jurors, rather than court officers, tend to be the ones who raise the issue. Indeed, it is an important part of their role. While jurors across Australia are currently told not to conduct online research, wilful disobedience is only part of the problem. It can also involve unintentional acts by jurors who believe they are doing the right thing. For instance, jurors accessing online news, entertainment or social media sites can be passively influenced by information relevant to the trial. Jurors often misunderstand their role and conduct independent research in the genuine belief their actions are in the pursuit of “fairness” or discovering the truth. Educate, inform & encourage self-regulation The law reform institute ultimately concluded it is impossible for, and beyond the capacity of courts to completely police juror internet use. It has thus recommended not reforming the law, but rather strengthening and standardising juror education and directions. These recommendations are divided across two stages of jury selection, as part of an overall strategy: <ul> <li> pre-selection: prospective jurors should receive improved training and information about the role of the juror and the risks of internet use </li> <li> post-selection: once a jury has been selected, judges need to explain to jurors what dangers arise from using the internet to access and publish on social media, seeking information about the case, parties, court officers, lawyers, and self-conducted research into legal concepts or sentences. The report has recommended the court adopt minimum standard directions, but also have the flexibility to make specific directions relevant to any particular trial. </li> </ul> The report recommended certain current practices and laws should remain unchanged, including: <ul> <li> removing phones from jurors while they are in court (even though the effect is limited it avoids juror distraction) </li> <li> leaving contempt (punishment) laws in place for those jurors who intentionally ignore court training and directions. That might include monetary fines and, in severe cases, imprisonment. </li> </ul> This process is aimed at encouraging self-regulation among jurors, by educating them how to curtail their internet use and why it’s so important. <a href="https://theconversation.com/profiles/jemma-holt-940717">Jemma Holt</a>, Research Fellow/ Acting Executive Officer (Research), Tasmania Law Reform Institute, <a href="https://theconversation.com/institutions/university-of-tasmania-888">University of Tasmania</a> and <a href="https://theconversation.com/profiles/brendan-gogarty-146584">Brendan Gogarty</a>, Senior Lecturer / Clinical Director / Director (Acting) Tas Law Reform Institue, <a href="https://theconversation.com/institutions/university-of-tasmania-888">University of Tasmania</a> This article is republished from <a href="http://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/juries-need-to-be-told-how-theyre-allowed-to-use-the-internet-to-ensure-fair-trials-130127">original article</a>.

Technology

Can I be forced to testify against my family?

Receiving a subpoena to appear as a witness in court can be daunting. The experience can be even more stressful if you are called to testify against your loved-one. But there are laws that restrict the prosecution’s ability to force family members to testify. Under <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s18.html">section 18 of the Evidence Act</a>, a witness may object to giving evidence altogether, or to giving evidence of a communication between themselves and the defendant, if: <ul> <li>They are a <a href="https://www.sydneycriminallawyers.com.au/criminal/resources/represent-yourself-in-court/">called by the prosecution as a witness</a>, and</li> <li>The defendant is their spouse, de facto partner, child or parent, and</li> <li>There is likely to be harm caused to their relationship with the defendant</li> </ul> The section recognises that forcing family members to testify against one another can harm the family unit, and that harming the family unit is undesirable. However, the protection does not apply in all situations. Rather, the court can force a family member to give evidence if the nature and extent of the harm caused is outweighed by the desirability of having the evidence given. In making that assessment, the court will consider factors such as: <ul> <li>The nature and gravity of the offence;</li> <li>The nature of evidence that the person might produce;</li> <li>The weight that such evidence is likely to be given;</li> <li>Whether there is another source of the evidence that is likely to be given;</li> <li>The nature of the relationship between the defendant and the person; and</li> <li>Whether the person would be disclosing a matter received in confidence from the defendant.</li> </ul> In order to take advantage of the section, a witness must object before they give evidence or as soon as practicable thereafter. What about spousal privilege? Spousal privilege is a principle that says that a husband and wife cannot not be compelled to testify against each other. One of the historical justifications for the privilege was that the law considered the interests of a husband and wife to be one and the same. Another justification was that the law should not interfere with the most sacred and holy of unions – the institution of marriage. Spousal privilege existed in legal jurisprudence for hundreds of years, but in 2011 the High Court found that it is not actually an enforceable rule. The High Court case In 2009, <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2011/47.html?stem=0&synonyms=0&query=stoddart%202011">Ewan Stoddart was summonsed to appear before the Australian Crime Commission</a> after being investigated for tax fraud. His wife was also summonsed to answer the Commission’s questions, but refused to answer on grounds of spousal privilege. The Federal Court found in favour of Mrs Stoddart, but the High Court appeal went the other way. The High Court found that spousal privilege is not a valid excuse for refusing to give evidence in court. It found that all family members must rely on statutory exemptions even though they may not offer the same level of protection as common law privileges. So whether you are a spouse or another family member, the court must take into account the list of factors contained in legislation before deciding whether or not to force you to testify against your loved-one. Written by Ugur Nedim. Republished with permission of <a href="https://www.sydneycriminallawyers.com.au/blog/can-i-be-forced-to-testify-against-my-family/">Sydney Criminal Lawyers.</a>

Caring

Five punishments past and present for jurors who fall foul of the law

Jurors in England and Wales have come under repeated criticism in recent years for the ways they’ve carried out their duties. In late March, a jury member at Carlisle Crown Court <a href="http://www.bbc.co.uk/news/uk-england-cumbria-43490590">was fined £1,000</a> for playing on his phone during a trial in what the judge described as “blatant contempt of court”. In November 2017, a jury was <a href="http://www.bbc.co.uk/news/uk-england-wiltshire-42100936">dismissed</a> at Winchester Crown Court after what one newspaper described as <a href="http://www.telegraph.co.uk/news/2017/11/23/parachute-trial-jury-discharged-failing-reach-verdict/">“an extraordinary row”</a> between judge and jury. Some jurors have <a href="http://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">even been imprisoned</a> for carrying out illicit research into the case before them. In the past there were a number of ways to punish jurors – some of which still stand today. Attaint In medieval England, if it was suspected that a jury of 12 had returned an inaccurate verdict in a civil trial, the case could be reheard by a 24-strong jury. If the second jury disagreed with the first jury’s verdict, the first jury would be punished. This procedure was <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">called the attaint</a>. Initially, punishment under the attaint meant imprisonment and the destruction of the jurors’ homes and lands, although by the end of the 15th century this had been replaced with perpetual infamy and a fine. The attaint never seems to have been used on criminal juries, and by the end of the 16th century it seems to have stopped being used even in civil trials. The system was formally abolished in 1825. Embracery Chief Justice Vaughan famously <a href="https://en.wikipedia.org/wiki/Bushel%27s_Case">ruled</a> in 1670 that jurors could not be punished simply for returning a verdict which the trial judge disagreed with. He was happy to punish jurors in some circumstances, however, having convicted two jurors of “embracery” the previous year. Embracery occurred where threats or bribes were used in order to encourage jurors to return a favourable verdict. It was an offence both to try to “embrace” a juror and to be “embraced” when actually serving as a juror. One embracer was convicted as late as 1975, although the Court of Appeal complained that a simple charge of contempt of court would have been better. This stopped any further prosecutions for embracery, and the offence was <a href="https://www.legislation.gov.uk/ukpga/2010/23/section/17">formally abolished in 2010</a>. Perverting the course of justice Perverting the course of justice as a juror is a broader offence than embracery, but it works in a similar way. It’s possible both for the person interfering with a jury, and for a juror who accepts a bribe or is otherwise compromised, to be punished. The offence still exists today, but prosecutions of jurors for perverting the course of justice have always been rare. As recently as 2011, the Court of Appeal <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/1629.html">made reference</a> to the option of prosecuting jurors under this offence where a juror had been communicating with a defendant, but judges seemed satisfied with the more conventional charge of contempt of court made against the juror. Contempt of court – and new offences Contempt of court is a broadly defined offence, consisting essentially of anything which undermines the authority of the court. A famous example of jurors punished for contempt came in 1670, when several jurors – including their foreman, Edward Bushel – were imprisoned for refusing to convict a pair of Quaker preachers. The Court of Common Pleas, ruling in Bushel’s case, held that juror punishment in these circumstances was unlawful. But the fact that judges could not longer punish jurors simply for returning verdicts with which the judges disagreed doesn’t mean that jurors are completely protected from contempt proceedings today. In recent years, several jurors have <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871">been imprisoned for contempt</a> after disobeying clear judicial instructions not to go online in order to find additional evidence in the cases they are trying. In 2015, four <a href="http://www.legislation.gov.uk/ukpga/2015/2/part/3/crossheading/juries-and-members-of-the-court-martial/enacted">new criminal offences were created</a> relating to independent research done by jurors. These new offences were intended to “send a message” to potential jurors that the government takes juror misconduct very seriously. It is now a criminal offence – triable by jury – for anyone acting as a juror to: <ul> <li>Research the case they are trying as a juror.</li> <li>Disclose the product of any such research to a fellow juror.</li> <li>Act in any other way which demonstrates an intention to reach a conclusion based on something other than the evidence presented in court.</li> <li>Solicit or disclose the details of the jury’s deliberations to people who were not on the jury.</li> </ul> In September 2017, the foreman of a jury <a href="https://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">was sentenced to four months’</a> imprisonment after going online to research some of the details of the case he was trying. Rebukes from the bench Beyond these formal kinds of punishment which are still possible, it’s also possible for judges to simply rebuke their jurors. In 1917, a group of jurors were kept in a state of <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">virtual imprisonment</a> after a falling out with their judge. They were told they would never serve on another jury, but that they must still report for jury service for several weeks, on pain of punishment under the contempt laws if they failed to attend. In the case in November 2017, the jury at Winchester Crown Court was warned that they should not bully each other during their deliberations. Before they were discharged, they <a href="https://www.theguardian.com/uk-news/2017/nov/23/jury-dismissed-in-trial-of-man-emile-cilliers-accused-of-tampering-with-wifes-parachute">wrote a note</a> to the court, complaining that: But while these jurors might feel slighted, at least they did not have to face formal sanctions. As the trial judge explained to them, it was his responsibility to keep an eye on any misconduct, and to find some way to “flush it out”. Written by Kevin Crosby. Republished with permission of <a href="https://theconversation.com/five-punishments-past-and-present-for-jurors-who-fall-foul-of-the-law-88432">The Conversation.</a>

Legal

Bill Cosby trial takes another twist

The Bill Cosby trial has taken another twist, as the jury begins to deliberate over the case that has already demolished the 79-year-old comedian’s good-guy image. The trial has already moved to the jury, which could see the man who was once one of the most beloved stars in show business spend his remaining years in prison. The closing arguments painted a different picture of what had happened between Cosby and Andrea Constand, with the defence suggesting the “romantic interludes” were consensual, while prosecutors arguing this was fancy lawyering. District Attorney Kevin Steele said, "Drugging somebody and putting them in a position where you can do what you want with them is not romantic. It's criminal." After the prosecution took five days to outline its case, the defence drew just one witness and six minutes of testimony. Cosby himself didn’t take the stand, ending days of suspense, although legal experts say this would’ve been a risky move. Cosby is charged with three counts of aggravated indecent assault. Image credit: Twitter / billboard‏

News

Rolf Harris trial dramatically concludes

Australian entertainer Rolf Harris has been found ‘not guilty’ on four indecent assault charges, after a jury failed to reach a verdict during his trial in London. The jury considered charges the 87-year-old entertainer had assaulted three girls between the ages of 13 and 16 at public events between the 1970s and 80s, but after four hours and 47 minutes of deliberation could not reach a verdict. Following the decision, the prosecution's Jonathan Rees QC told the court the Crown would not be seeking a third retrial. Harris reportedly showed little emotion inside and outside of court, and did not speak to the media. His solicitor, Daniel Berke read out a statement on the entertainer's behalf: "Whilst I am pleased that this is finally all over, I feel no sense of victory, just relief. "My wife is in ill health and we simply want to spend our remaining time together in peace." Harris had pleaded not guilty to all charges and didn’t give any evidence to the London court. He is facing no additional charges, and will return home having already completed a jail sentence of 12 previous convictions of indecent assault. Image credit: Twitter / SBS News

Legal

“I need to look after my cat” and other hilarious jury duty excuses

In a display as comedic as you might expect, the NSW Office of the Sheriff has put forward a list of excuses given by clever (or not) citizens looking to get out of jury duty. According to Pauline Wright, NSW Law Society’s Chair of the Criminal Law Committee, “We really need to impress upon people how important it is to be a juror and what an important civic responsibility it is. “If they were charged with a criminal offence, or if they were a victim of a crime, they would want to know that people were taking the role seriously in either helping a perpetrator get convicted or preventing an innocent person from going to jail.” That may be true, but that didn’t make the excuses any less amusing, ranging from the hilarious to the bizarre. Below are some of the best responses: “I can’t serve as a juror because…..” - “I’m allergic to air conditioning” - “I’ll fall asleep in the trial” - “I need to look after my cat” -“I have a public transport phobia” -“voices tell me I shouldn't attend" In reality, only 7050 of the hundreds of thousands summoned ever actually have to serve as a juror. We’re guessing these excuses garnered their evaders a hefty $1100 fine. In the end, it’s probably best just to go to court, even if your cat is feeling a bit needy that day. Related links: <a href="/news/news/2015/07/older-works-cannot-be-ignored/">Why older worker can’t be ignored anymore</a> <a href="/news/news/2015/07/recall-of-popular-child-car-seat/">Safety concerns lead to recall of 10,000 popular child car seats</a> <a href="/news/news/2015/07/worlds-tallest-cow/">Meet the world’s tallest cow</a>

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Can juries still deliver justice in high-profile cases in the age of social media?

Stunning developments in rape trial of Bruce Lehrmann