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High stakes Mm11

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High stakes

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Post by Guest on 16.11.11 19:59

Wednesday, 16 November 2011

High stakes

So the libel case resumes in February. One doesn’t have to be a pessimist to wonder whether it will really take us any closer to the truth. That a (democratic) criminal trial is dedicated to establishing the truth about an event is neither myth nor pretence, as anyone who has served on a jury should know. But a libel trial is a rather different matter in which truth takes very much second place. Not only is it not one of the jewels in justice’s crown, it is in fact the pits, whether in the UK, Kazakhstan or just about anywhere you name.

Nor are the reasons hard to find: no country has found a way of establishing equality between the two sides so that both cases can be presented in equal strength and detail, and few have bothered to try. The odds on Mr Putin losing a libel case in his own country are roughly the same as the odds on a hugely wealthy litigant in the UK losing to a Big Issue seller: such are the realities of power.

Where does the balance of power lie in McCanns versus Amaral? The answer is less obvious than it might seem. The financial power of the parents, like almost every other aspect of their lives, derives from others, not their own resources. And the “others”, whether millionaires with an interest or a supportive public, will only cough up on a big scale as long as nothing untoward occurs to dent their sanctity.

Unlike them Amaral has little to fear financially from unpleasant revelations since enough mud to dam the river Tagus has already been smeared all over him. So while his current wealth and earning power are effectively zero they are potentially much greater than that of the McCanns: should the gradual movement in his favour from the judges continue to a finding in his favour then future world-wide book sales would dwarf the rewards from both The Truth of the Lie and Kate McCann’s lamentable opus.

There is also an asymmetry in the risks both parties run. Amaral, frankly, has little to offer the pair should they win and has spent two years learning how to cope with ruin: how much worse can it get for him? The parents, however, should they lose face a frightening future.

Unfortunately such high stakes don’t guarantee new insights. The prolonged and profound research in the Irving vs. Lipstadt case which we mentioned previously dramatically altered our knowledge of decades-old events; there is little reason to suspect anything comparable in February.

The location of the proceedings and the legal system under which they have been taken is an additional complication.Whatever one’s feelings of friendship for the Portuguese people the performance of its young legal system throughout the whole Madeleine McCann affair has left a sad impression. It is one of an alien judicial system, seriously compromised by fashionable but troublingly flexible human rights concepts, imported and badly bolted on, post-Salazar, to a rickety existing structure, one which lacks transparency and predictability and which does not seem politically independent. Perhaps that accounts for the profound lack of faith in it shown by educated Portuguese in their discussions with The Bureau.

Most shocking of all, more shocking even than the intellectual inadequacies and political compromises of the prosecutors’ report from within the criminal justice system, was the reaction to the use of the civil law by the McCanns when they gagged Amaral. The viciousness of the parents’ assault was predictable —after all we know what sort of people they are—but the reaction wasn’t: the fact that human rights concepts could be perverted to strip and humiliate Amaral in virtual secrecy, reminding one not just of a Salazar victim but an unlucky litigant from the seventeenth century, seemed to come as a complete surprise not just to most lay Portuguese, who don’t expect to understand their own laws, after all, but to the legal profession itself. A number of the latter said that they did not know that Amaral’s fate was legally possible. What sort of system does that reveal?

Nor did the Lisbon hearings, under a twenty eight year old judge, do anything to rectify this Alice-in-Kafkaland impression. Only when the appeal court judges gave their ruling did we finally seem to be reading the words of normal people looking at the evidence. But what a time to wait! And which way, given the social strains induced by recession and the approaching end of the Euro, will the judicial future go?

It is presumably the McCanns’ status as putative martyrs which accounted for the lower courts’ otherwise baffling acceptance of the more infantile claims made by the pair, which should have been thrown out with contempt and derision. The claim that “the search for Madeleine would be damaged” by Amaral’s book and television programme is one of the most risibly childish ever put before a civil court, resting on a subjective psychological, not fact-based, hypothesis incapable of proof or disproof and only arguable in terms of counterfactuals: i.e. not a matter that can ever be determined by a court. But in this case, under the glare of international publicity and political uncertainty, the courts themselves seemed to lose their bearings and sense of proportion.

Admittedly, and under similar crazed media pressure—initiated, we should never forget, by the McCanns—the UK courts have shown signs of being infected by that same triumph of sentimentality over reality, witness Hogg’s comments in the important case of McCanns vs. Leicester police. But the latter came harmlessly in the judgement, after the police, via their counsel, had ruthlessly brushed the schmaltz aside, denying the sacred couple—Oh unforgiveable!—what they demanded on the basis of the facts, something the Portuguese lower courts, unfortunately, were incapable of doing.

Presumably Isabel “Gorgon” Duarte will attempt to keep things on the same sentimental fantasy level when she appears in court in February. What else can she do? The evidence for the conclusive exoneration which the pair crave and which would demonstrate that Amaral’s claims must be untrue or malicious isn’t there, as those Leicester police have reminded us by word and deed since 2008. Turning Menezes’s shoddy little document into a fair summation of the case is probably beyond her if—and it’s a big if—Amaral’s defence team have analysed it and the circumstances which produced it in proper depth. Judging from her performance in Lisbon, where she seemed to be hawking smelly quayside fish rather than examining the witnesses, Duarte lacks the necessary restraint and focus to go calmly and forensically for Amaral’s weak points.

On his side, to add to this cloud of unreality which surrounds the judges, Amaral has shown no sign of relinquishing his misguided attempts to blame the UK government for the collapse of the case against the pair. One must hope that Duarte will go on hawking her fish rather than calmly inviting Goncalo to provide the evidence for such a claim and when he fails to do so—because there isn’t any—invite the court to decide that a man who can thus convince himself of this theory without evidence might have done exactly the same thing with the McCanns.

So there’s a kind of crazed symmetry to the case, with the McCanns on one side still maintaining that the child was abducted without a shred of supporting evidence except their own statements, and their opponent maintaining that the pair were saved by the UK government without a shred of supporting evidence save his own beliefs. Finding truth and reality in the gap between these two slightly unreal positions is no easy task.

Still, one remembers the day of the appeal court verdict when all the falsity and garbage fell away for a moment and we heard normal people, people like us, speaking realistically and sensibly from the bench and drawing the self-evident conclusions that we’d despaired of ever hearing in the weird, shadowy world of the McCann case. Then one’s faith in the Portuguese system and the possibility of getting at the truth was, despite the obvious weaknesses, restored. It could happen again.

Posted by john blacksmith at 18:25

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High stakes Empty Re: High stakes

Post by aiyoyo on 17.11.11 5:15

No disrespect to blacksmith who writes brilliantly, but this piece seems to be over expressed to make just a couple of points. And those points arent exactly optimistic about Amaral. Blacksmith seems to be sitting on the fence on this one.

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