Criminal Law

By Peter Woodhouse



If you’ve ever read my bio on the Aulich website you would know that my desire to practise criminal law was fostered, in a large part, by reading John Grisham books as a youngster.

One of those books was The Innocent Man.  But unlike Grisham’s other books, The Innocent Man isn’t a novel, but his only non-fiction, true crime book.

The Innocent Man has recently been adapted into a Netflix documentary series, released on 14 December.  Given my history, you won’t be surprised that I’ve watched it already.  I urge you all to watch it too.

The series goes a bit further than the book and covers the murders of two young women, close in time, in the small town of Ada, Oklahoma – Debbie Carter in 1982 and Denice Haraway in 1984 – and the deeply flawed investigations and prosecutions that followed.

Ron Williamson and Dennis Fritz were convicted of the murder of Debbie Carter in 1988.  Williamson was sentenced to death and came within 5 days of his execution before it was stayed.  Williamson and Fritz were ultimately exonerated after DNA testing in 1999.

Tommy Ward and Karl Fontenot were convicted of the murder of Denice Haraway in 1985.  After her body was found in 1986, they were retried and convicted again.  They have been in prison for 31 years and continue to protest their innocence.

The series exposes deeply flawed police investigation and prosecution processes.  Most significant is the failure to disclose important, exculpatory evidence to the accused’s legal representatives.  Watching the series, most of you will probably think: ‘wow, aren’t we lucky our system is better than that’.

Well, don’t get too comfortable…

Unfortunately, time and time again, the lawyers at Aulich experience many of the same problems that plagued the lawyers acting for these men more than 30 years ago and on the other side of the world.

On a regular basis, important evidence (often exculpatory) is not disclosed in a timely manner or at all.  Often it is given to us literally on the doorstep of the Court and only because we’ve worked out for ourselves that it exists, and we’ve insisted that it be provided.

Many times, witnesses are not spoken to in a timely manner, or at all, and often only when the defence lawyers can identify additional witnesses themselves are their versions obtained.

Regrettably the phenomenon of ‘confirmation bias’ (that is reaching your conclusion and then searching for and interpreting evidence that only supports that conclusion) exists and is practised all too readily by police in many jurisdictions, including Australia.

Thankfully, Australian Courts take the disclosure of evidence very seriously and there are often significant consequences when non-disclosure is exposed.  But that doesn’t help when it’s not known about.

This quote from John Grisham in the series seems to some up some of our experiences of the lawyers from Ada, Oklahoma.  It’s a sad indictment on our legal system that it’s a bit too close to home for me:

We just don’t expect the police to play dirty… it’s all about winning… and along the way, if the truth gets blurred or twisted, that’s too bad.

You see, it shouldn’t be about winning for the prosecution or the police, it’s really about fairness.  Their job, which is sometimes lost sight of, is about collecting the evidence fairly and within the bounds of the law, disclosing it to the accused and putting all relevant, admissible evidence before the

Court.  Part of my job is to make sure they do their job right.