The Defense Counsel: The Weakest Link of the Legal System in Sweden

 

The Defense Counsel: The Weakest Link of the Legal System in Sweden

By Max Scharnberg

 

 

Max Scharnberg teaches the psychology of lying at Stockholm School of Economics, and is an assistant professor in the Department of Education, Uppsala University, P0 Box 2109, S-750 02 Uppsala, Sweden

This article was previously published in ISSUES IN CHILD ABUSE ACCUSATIONS, 1998, Volume 10, pages 74-84. The article is published here upon the special consent of the author.

 

ABSTRACT

: The incest abuse craze that was spread throughout the Western world has been especially marked in Sweden. This is despite a Swedish legal system which should have given the defense counsel ample opportunity to not only win acquittals for innocent clients, but to influence opinion and work towards rationality in sexual abuse cases. Illustrations of the passivity and incompetence found in many Swedish defense attorneys are given.

The incest abuse craze started in the United States and has spread over the entire Western world. Nonetheless, there are unexpected differences between various countries, and certain aspects of the situation in Sweden are surprising. The formal structure of the Swedish legal system gives the defense counsel unique opportunities to refute evidence from prosecutors, police officers, psychologists, and social workers. But, with very few exceptions, defense attorneys have been exceedingly passive and have not availed themselves of these opportunities. Whatever may be true in other countries, the incest craze would never have taken such a strong hold in Sweden if defense attorneys had done a responsible job in actual trials. Had they demonstrated to the authorities and mass media that it is very difficult for the prosecution to convict an innocent person, the prosecution's zeal might have been curtailed.

 

The Swedish Legal System

Although justice depends less on formal structure than on the persons in it, the features of the formal structure also have an influence. The Swedish legal system is grounded on two primary principles: First, the verdict should not be based on intuitive belief, but on an objective evaluation of facts. Second, the verdict should not be based on only a selection of the facts-a selection made by someone who is not himself responsible for the verdict.

Because of the latter principal, many Europeans think there are strange contradictions within the American legal system. A juror is supposed to be competent to decide whether a person should be convicted of a crime which would lead to a very severe sentence. But the very same juror is deemed incompetent to decide whether a certain piece of evidence would mislead him into reaching the wrong verdict.

The American legal system does not even try to protect the defendant against being convicted on the basis of subjective feelings. At the same time, the judge is permitted to select the facts upon which the subjective feeling may be grounded. For example, in response to a request from the prosecutor, the judge may forbid the defense to call a certain witness. The nature of the proceedings may mislead the jury into believing that it was the defense who prevented this witness from testifying. Bur the judge may not allow the defense to inform the jury of the true state of things. It is not easy for Europeans to understand how such a system could be consistent with a fair trial.

By contrast, the Swedish legal system contains numerous safeguards aimed at minimising the risk of false verdicts. Many of these safeguards are absent even in most European countries. The system is based on the theory and terminology of neutrality. Formulations such as "the state/the people against Joe Brown" are completely alien to Swedish legal thinking. There is never any implication that "the people" side with the prosecutor, nor that the state has lost if the defendant is acquitted. Both the prosecutor and the defense counsel are supposed to present their own interpretation of what they, rightly or wrongly, believe to be the will of the state/the people. According to the theory of neutrality, the state/the people side with the judicial and lay judges, who are supposed to be absolutely neutral in the conflict between the prosecutor and the defense counsel.

Even the poorest defendant is entitled to the best defense attorney paid by public means. At least in theory, and until a few years ago also in practice, an attorney appointed by the court would not be paid less than an attorney engaged by a party. No one should be falsely convicted because he cannot afford to pay for a high-quality defense.

Some readers may feel that such generosity is a waste of money. Bur the Swedish legal system is much cheaper than the American one. Furthermore, legal decisions inevitably result in additional costs, including those associated with prisons. Through using more efficacious means than trials and prisons, Sweden has succeeded in reducing criminality of all kinds to levels which must seem miraculous to Americans. Likewise, the proportion of unsolved crimes is small, despite the far greater Swedish inclination of reporting even petty crimes to the police. It is sheer nonsense when Klevius (1996) claims that Sweden has the highest rate of juvenile delinquency in the world.

Actually, it is not true that there is an inverse relation between the risk of false convictions and false acquittals, whence any decrease of the proportion of the former will increase the proportion of the latter. This theory ignores what takes place before and after the trial. After the trial the real culprit will escape punishment if the wrong person is convicted. And many potential culprits may assume that they will escape because of this reason. Before the trial the police may be more interested in gathering evidence which will get a conviction than in obtaining substantially valid evidence.

In the Swedish legal system there is - albeit unfortunately only in theory-only one restriction as to admissible evidence: it must not be irrelevant. Whoever would fear that this freedom would overwhelm the court with facts may be surprised to learn that Swedish trials are very much briefer than those in the United States. One reason is that neither the prosecutor nor the defense counsel will need many days of indirect manoeuvring for making a point, which could be stated in a straightforward way in 20 minutes.

In many countries, including such disparate ones as Denmark and the United States, it has always been commonplace for the court to rule that some proffered defense evidence was inadmissible. However, in Sweden it was, until recently, considered self-evident that deciding what facts are best suited for supporting the position of the defense is the exclusive task of the defense itself Prior to April 1993, it was very rare for the court to rule that defense evidence was inadmissible.

Nor will a Swedish expert witness testimony be limited on the grounds that the court would be exposed to undue influence. The expert is even free to offer an opinion as to whether the defendant is guilty or innocent. The advantages of this are obvious. In the George Franklin trial everyone realized Lenore Terr was talking about the defendant. But since Terr herself, the prosecutor, and the judge pretended that she was talking about an abstract personality, the defense was permitted to fight no more than a shadow of what Terr actually communicated to the jurors.

In contrast to Denmark, Norway and the United States, there is no jury in Sweden. There is a close relationship between this feature and the dull and boring nature of Swedish proceedings. The histrionic acting, trickery, staging and emotional appeal of American trials is completely absent, and the outcome of a case is seldom influenced by strategic devices. No judge can fine or otherwise punish anyone because of his behaviour during the proceedings. Nor is there any need for such measures, since the system does not invite improper behaviour.

No Swedish judge or prosecutor is elected. Competent persons may hold such offices, even if they have no capacity for raising funds or for impressing the electorate. Nor is any decision ever made with an eye to re-election. In addition, extremely few judges are former prosecutors.

Judges have less power and enjoy less prestige than in almost any other country. Their seats in the courtroom are raised only some 10 cm above the floor. No one is dressed up during the proceedings, and on a hot summer day judges may well take off their jackets.
 

The laws enacted by the Swedish parliament take priority over whatever any individual judge may deem to follow from "right reason," "natural law," or the constitution. As a result, the legal rules to be applied to a case are not only simpler and more straightforward, they are also fewer in number.

The task of the court is not merely to decide whether the defendant is guilty and hand down the sentence. The judges must also produce an extended writ listing all the justificatory arguments leading up to the verdicts and the sentence. These writs, however, are replete with peculiar selections and false recollections of what took place during the proceedings. Moreover, the logical derivations are frequently conspicuously invalid. Although such errors are not peculiar to Sweden, here they are visible, while they are concealed in many other countries.

The task of perceiving and evaluating the evidence is extremely difficult in itself, even if it is performed in the absence of distracting events. It is hard for Europeans to understand the American tolerance for incessant interruptions. But in the United States, if an objection is not made, the right to appeal the issue is lost. In contrast, until recently any Swedish case could be appealed, and no other grounds for appeal was required other than the wish for a different legal decision. This is still true as regards any judgment resulting in a prison sentence of more than six months. But today the Court of Appeal is entitled to refuse an appeal of a case with a milder outcome. Nonetheless, whether the appeal is refused is always independent of the behavior of the defense counsel during the proceedings in the district court. And an entirely new trial takes place in the Court of Appeal, and both the verdict and the sentence will be decided by entirely new persons.

 

Problems in the Swedish System

Other formal features could be listed, but we shall stop here. However, the list raises a strange question. Why did things turn out equally poorly in Sweden and in the United States? Why did Denmark, Norway and Finland suffer significantly fewer absurd convictions for sexual abuse, despite having less satisfactory legal systems? One explanation is that the Swedish system also has problems, some of which are the reverse side of its positive features.

Paying the defense counsel from public funds has potential shortcomings. Since the proportion of cases won or lost will not strongly influence an attorney's reputation or finances, few attorneys have a fighting spirit. In addition, the judges decide whether the fee requested by the defense should be accepted or reduced. The original rationale for this policy was that the judges, who are familiar with the case, can estimate how much labor the case should reasonably require. Many judges, however, use the fee as reward and punishment. If the attorney is passive and lets the prosecutor have his way, the judges may order the requested fee paid in full. By contrast, an energetic attorney who has unearthed such strong evidence that the judges dare not convict the defendant may reduce the fee, even by two-thirds or more. Analogous discrepancies are found in the way of paying expert witnesses for or against the prosecution.

In Sweden there is much confusion as to the nature of the task of the defense counsel. Many judges think that evidence should be gathered only by the prosecutor and the police. The defense attorney should not "play Sherlock Holmes" and perform investigations. He should merely present an alternative interpretation of the evidence supplied by the prosecutor. Most attorneys accept this view and apply it in actual trials. This is unfortunate since it is inevitably a losing move. Defense attorneys rarely attempt to collect even readily available facts. Nor do they try to find out what the prosecutor may have deliberately concealed from the court.

Not only do physical facts and personal testimonies need to be gathered, if the prosecutor has retained a psychologist or a psychiatrist, there is no way for the defense to win without retaining his own expert. But even very famous attorneys disregard this rule, and may lose cases which would not have been hard to win.

There are problems with the relationship between the defense counsel and the expert witness. The first is the selection of an appropriate person. Most attorneys do not attempt to find out which experts are honest and competent, even when such knowledge is readily available. If the main judge considers appointing an "impartial expert of the court," defense attorneys will usually allow the prosecutor to suggest the expert. They do not learn from experience that courts usually adopt the "impartial" expert's standpoint and that certain experts invariably support the prosecutor. Often, the client is doomed after the very first week of the preliminary investigation because of errors committed by his own counsel. But a psychologist's attempts to enlighten the attorney will usually be met with the attitude that internal disputes among psychologists are solely their own business.

Defense attorneys tend to passively tolerate a court decision forbidding them to present crucial information, even in situations where they do not need to accept such rulings. Circumstances which might at the first glance seem insignificant may nonetheless illuminate the thinking and acting of most Swedish defense attorneys, as some concrete examples will reveal.

 

Fenimore

Fenimore was a 29-year-old schizophrenic woman who claimed that her recently deceased grandmother was sending her messages from one of her teeth, telling her that Fenimore had killed her by singing a psalm. In the hospital, Fenimore cut herself with razors and pressed a needle into her vagina. She was given recovered memory therapy and her father was arrested on the basis of Fenimore's schizophrenic delusions and her "therapeutic recollections."

In the Fenimore case, the prosecutor selected as defense counsel her own good friend, Göran Gundmark, who did not contact his client. The father's wife had engaged another attorney and psychologist (Peter Haglund and me), and we were working ardently for him. We were not paid by public means because Gundmark had already been appointed. Also, we were prevented for two weeks from contacting the man who was now our client.

When the district court had decided to detain the father, Gundmark appealed to the Court of Appeal. For writing the petition, for preparing for the proceedings, and for his presence during the proceedings, Gundmark requested a fee for a total of one hour of work.

Peter Haglund and I succeeding in having the father set free after 17 days and the charges were later dropped. But, during the second set of proceedings in the district court, Gundmark agreed with the prosecutor that there was no indication Fenimore was mentally ill. The judge accepted the prosecutor's claim that 46% of all cases of bulimia are caused by sexual abuse, and denied the defense attorney's request to ask the prosecutor to provide factual support for this figure.

If Gundmark had continued to handle the case, it is very likely the father would have been convicted. After the trial Gundmark criticized Peter Haglund for "not believing in the health service."

 

The Night Cab Driver

A night cab driver was convicted of having for years abused his teenager daughter on each night at bedtime. He tried in vain to make his attorney interested in his working hours. I later secured these hours for the 690 consecutive calendar days prior to the arrest. The daughter was 17 years old at that time. Almost invariably the father started his work between 5 p.m. and 7 p.m., and came home between 1:00 a.m. and 6 a.m. Although he could have abused the daughter on his days off, there is no mentioning of such a pattern in the daughter's many and contradictory versions. But the attorney was not interested in pursuing this.

 

Embla's Diary

The first attorney for the father of 14-year-old Embla assumed that the daughter would never have accused her father unless the allegation was true. He even told the police and the prosecutor so. The prosecutor knew that the father had a perfect alibi for an assault allegedly performed four days before he was arrested. Hoping that the witnesses would eventually forget the exact date, he postponed asking for it for three months. But the defense attorney took no measure to secure this crucial evidence.

Nor did he attempt to obtain Embla's diary, which contained entries that falsified several of the prosecution claims. Although Embla claimed to be trembling for hours after each assault, she started the entry in her diary on the same night as one of the alleged assaults with the words, "Hey and hoe! Rubber toe! Today I have had really fun actually." The diary, which spans the period of the alleged assaults, is permeated with entries indicating a happy mood. It is replete with expressions such as "mighty fun," "damned fun," "rather fun," with occasional terms such as "boring."

The worst possible situation for a defendant is to be innocent, to have a good conscience, and to have confidence in the legal system. The defendant may assume that he could never be convicted on the basis of the trivial evidence gathered by the prosecutor. He may imagine that it does not matter whether the defense is in the hands of one or another attorney. Not until he is convicted by the district court will he understand that things are serious. After this shock, he may get more competent counsel. Not infrequently the proceedings in the Court of Appeal constitute the first trial which is not a sham trial. Regrettably, in about half the cases even the best defense counsel and expert witness may not be able to remedy the mistakes made by the original attorney.

 

The Importance of a Competent Expert Witness

In Sweden, one will never find a defense attorney ardently trying to convince the psychologist he has retained that his client is innocent. A Swedish attorney will assume that the expert knows best. In one case the attorney was inclined to find another perpetrator, while I convinced him that no crime had been committed. And this became our joint position.

Since the Swedish legal system does not prevent the application of scientific methods to analyze and assess the truth value of testimonies and accounts by witnesses, defendants, and injured parties, a unique discipline has emerged and is flourishing: Evidence psychology. No less than three approaches have developed: the witness psychology of Arne Trankell (1971), later pursued by Astrid Holgerson (1995), Holgerson and Birgit Hellbom (1998) and Lena Hellblom Sjögren (1997); the textual analysis of Max Scharnberg (1996a, 1996b, 1996c, 1997a, 1997b; also certain sections of 1993); and the critical investigation method of Bo Edvardsson (1991, 1993, 1995, 1996a, 1996b).

Unfortunately, invalid approaches have also emerged in addition to the subjective assessment by clinicians. Although a group led by Egil Ruuth borrowed the name "witness psychologists," they should rightly be called "pseudo-witness-psychologists." Their greatest shortcoming is not their low competence, nor that they have during 20 years produced no published writings, it is that they manufacture evidence on behalf of the prosecutor. Despite this, The National Board of Health and Welfare has specifically recommended all courts to appoint only members of this group. For more than 10 years this group has falsely claimed to apply the method of Elizabeth Loftus.

Sometimes a court may wish to appoint an expert witness as the impartial expert of the court. Often it is the prosecutor who has suggested the need of an expert, and who has also suggested a certain name. In this situation most defense attorneys choose one of two self-defeating moves — they will accept or even welcome the prosecutor's choice, or they will argue against appointing any expert at all. The latter option will be selected even if the attorney knows it is in vain. The appropriate strategy will almost never be used — to firmly resist the expert suggested by the prosecutor and also against all other members of the same "school," and second, to suggest another name or another school.

 

Pseudo-Witness-Psychologists

The case of the "pseudo-Loftusian psychologist" has been described by Scharnberg (1996a) and Hellblom Sjögren (1997). It involves a divorce and custody dispute, where the mother tried to indoctrinate the two preschool daughters, albeit with little success. The prosecutor engaged a team of 12 psychological, social, and medical experts, many of whom worked at the child psychiatric clinic in Kristianstad. One member of the team, Bodil Hjalte, had, in 24 out of 24 previous cases, concluded that the suspect was guilty. The prosecutor suggested that the district court appoint her as the impartial expert of the court.

It should have been easy to find out Hjalte's record. Any responsible attorney would have understood that nothing was more important than preventing the appointment of this person as the court-appointed impartial expert. But the father's first counsel uncritically accepted the prosecutor's suggestion. The father would have been convicted if he had not retained another attorney (Peter Haglund), who in turn engaged me.

Bodil Hjalte claimed that she had applied the method of Elizabeth Loftus and Arne Trankell in this case. Hence I translated her written investigation of some13,500 words, and asked Dr. Loftus for a comment. Dr. Loftus (1993) provided a written testimony, in which she rejected both Hjalte's methodology and conclusions. Hjalte countered by claiming that my translation was erroneous, although I had the latter scrutinized by a professional translator. Moreover, Astrid Holgerson, Trankell's successor as the leader of the witness psychological laboratory at the University of Stockholm, pointed out that Hjalte's approach bears no relation to Trankell's method.

Until he received Holgerson's affidavit, the judge had been convinced of the guilt of the father, and had strongly opposed appointing any other impartial expert. But now he finally began doubting. He appointed Lena Hellblom Sjögren (1994), who interviewed all members of the family and reviewed the preliminary investigation by the police as well as many other documents. An abbreviated version of her report to the court is included in Hellblom Sjögren's (1997) book, and is one of the best witness psychological writings ever produced. After her analysis, the prosecutor withdrew the charge.

Fourteen-year-old Graziella accused her father of having raped her. At a certain stage during the legal sequence of events, the prosecutor asked the Court of Appeal to appoint as the impartial expert of the court another pseudo-witness-psychologist, Suzanne Insulander. Her name is on the list of experts recommended by The National Board of Health and Welfare. Any responsible defense attorney would have asked himself why the prosecutor suggested her. But this attorney welcomed the appointment, and assured his client that he had a high opinion of her competence. None of his numerous errors was as immense as this one. The moment she was accepted by the court the doom of his client was sealed.

The attorney could have argued (a) that since the prosecutor had suggested Insulander, she could not be expected to be neutral and unbiased; (b) that all pseudo-witness-psychologists have an exceedingly meager, training and Insulander was not qualified for the task; (c) that, since pseudo-witness-psychologists falsely claim to apply the method of Elizabeth Loftus, Insulander's honesty could be disputed; (d) that the genuine witness psychologists are those trained at the laboratory at the University of Stockholm; consequently, if the court wanted adequate guidance, the expert must be selected from this group.

By moonlighting in legal cases Suzanne Insulander has during 1992 to 1994 received SwCr 492 044:50 from the courts. What she has received from prosecutors or from the health service is not known. The comparable figure for Bodil Hjalte for the period July, 1989 to November, 1992 is SwCr 624 834. According to Swedish standards, these are very large sums.

Judges and Incompetent Defense Counsel

The next cases illustrate the inconsistent pattern of leniency and harshness of different judges. A defendant who is guilty of a bank robbery may be acquitted if the case is handled by Judge Sven Larsson of the Court of Appeal in Jönköping. But few judges are more dangerous to a defendant who is accused of sexual abuse. Swedish proceedings are very calm; it is very rare that anyone raises his voice. It was therefore a unique occurrence that Judge Larsson during the case of Erna verbally abused the defense counsel and the defense expert (Scharnberg, 1996a).

Judge Olle Ekstedt of the Court of Appeal in Malmö was strongly criticized when he ruled that no punishment was called for in a case involving the murder of a black man. But he took a quite different stand in a sexual abuse case he handled at almost the same time. In this case, a teenager named Yvette had strained her body from exaggerated sport activities and bulimia. The hospital persuaded her that her ailment was caused by sexual abuse by a priest eight years previously, and the priest was charged and convicted by the district court. The first attorney had based his entire defense upon the theory that, since the defendant was an old man, the conviction would be a disaster to him, so he shouldn't be convicted. Such a defense strategy might have a slim chance in a jury trial, but it is completely fruitless in Sweden.

The priest then obtained competent counsel in the Court of Appeal. Unfortunately, four days before the trial, Judge Ekstedt forbade the testimony of nine of the twelve defense witnesses, and forbade interrogation of the remaining three on almost every nontrivial topic. He also refused a postponement of the trial that would have allowed the defense sufficient time to prepare for a new strategy.

I have only once collaborated with an incompetent defense attorney. In a case that I have described elsewhere as the "football case" (Scharnberg, 1996a), Judge Widebäck of the Court of Appeal in Stockholm ruled that the three prosecution psychologists could begin their testimony with comprehensive and lengthy monologues. By contrast, I was only permitted to give brief answers to brief questions. But the attorney did not object to this.

A Swedish attorney is not in a weak position during the proceedings.
Occasionally, an extended debate takes place between the defense counsel and the main judge. Therefore, several options were open in the above situation. The attorney could have argued that this ruling was disproportionate and biased; or that the disproportionate testimony might predispose the court to convict; or that the ruling could be interpreted as if the court had already decided the verdict; or that the ruling was incompatible with basic principles of justice, or against the law (he could have invoked some two dozen different statutes), or against prevailing legal practice.

If overruled, the attorney could have reargued his case. And if the request to reargue was also denied, he could have moved for his protest to be included in the official record. As a last resort he might have raised a challenge against the main judge, moving that the latter be removed from the case and the entire trial resumed from the start. This last move will usually result in the trial being halted until the challenge had been evaluated by three other judges. Such a halt would be most uncomfortable to the entire Court of Appeal in Stockholm. Whatever the outcome of this evaluation, judges would in the future be more reluctant to refuse the defense to present its evidence.

But the attorney attempted no countermeasures.

He did not even try to compensate for the disproportionate time allotment by asking me a lot of questions. The prosecutor asked me very few questions, a clear sign to anyone else other than the defense attorney that she saw no danger from my testimony. This example illustrates how attorneys are to a large extent responsible for the refusal of the court to admit defense evidence.

 

The Södertälje Case

In the highly-publicized Södertälje case, 15-year old Elvira recovered memories of sexual abuse beginning from when she was 5 years old following therapy from one American and two Swedish therapists. It was alleged that for years Elvira had been hired out as a prostitute in sex clubs in Stockholm and had partaken in ritual abuse. The allegations included claims that her father had slaughtered and eaten 53 immigrant children and that Elvira had been forced to kill a child herself. Allegedly, during one of the rituals, which sometimes included well-known people, a man had cut off the head of a 14-year-old boy and performed coitus in the neck of the torso. The bones of the murdered children were said to have been placed in plastic sacks and buried in the woods.

The entire Swedish population watched television news accounts of 70 policemen and four police helicopters digging and searching for corpses at the place pointed out by the girl. Bur the investigation turned up no corpses and no immigrant children were found to be missing. Nor did Elvira recognize any of the known sex clubs in Stockholm. In fact, her description of them plagiarized from The Deaf People's House in Stockholm; her mother is deaf.

Despite this, the father was convicted and sentenced to 10 years in prison (the maximum punishment in Sweden for sexual abuse) and the mother was given a five-year sentence. For the entire trial (five days in two courts plus preparation) the defense attorney requested to be paid for 68 hours. Obviously, no more than a superficial defense could be performed for this small amount of time. Nonetheless, the Court of Appeal reduced the fee to 58 hours. In Sweden, such a decision suggests that the five judges considered the proceedings a sham trial.

Despite the very great geographic distance between the towns Södertälje and Umeå, many of the same persons in the Södertälje case were involved in a similar case in Umeå. In both cases, the allegations involved recovered memories, and both daughters provided accounts involving a remarkable number of well-known persons. Both fathers had been given the maximum sentence in Sweden -10 years. But when it was revealed that the Umeå daughter (Elfriede) was a virgin, the case was reopened and the father acquitted. Very soon afterwards the Södertälje case was also reopened by the Supreme Court, and referred back to the Court of Appeal in Stockholm. But, despite the inadequate defense in the original trial, Judge Bengt G. Nilsson forbade the father to obtain new counsel. The mother already had a first-rate defense attorney, but the judge ruled that much of the critical evidence was inadmissible. Although crucial documents had been faxed from the Court of Appeal in Umeå to the Court of Appeal in Stockholm and it was proved that they had been received, judge Nilsson claimed that no documents had been received "because the fax was out of order."

If a case is reopened and it is believed that the defendant is likely to be innocent, he is often reconvicted by the Court of Appeal in Stockholm which then metes out half of the punishment given at the first trial. This was what happened here. But a better defense might have been prevented the court from doing this.

In his final plea, the father's counsel kept repeating that his client was a good man because he harboured no grudge against the prosecutor. This attorney, who was poorly prepared and asked flew important questions, appeared to believe that his client was guilty of 53 murders, and was lucky that he only had to serve time for sexual abuse. Because the attorney had created no difficulties for the prosecutor, he was rewarded with payment for 600 hours, which is an unusually large fee in Sweden.

As noted above, prior to 1993 the defense seldom had difficulties getting all of their evidence admitted in trials. Parliamentary law did not change this year. Hence, we must ask why the unwritten legal policy suddenly changed. I

The series of articles on recovered memory therapy in the San Francisco Examiner in April 1993 had a large impact in Sweden. After eight years of resistance, the mass media suddenly began printing sceptical articles. Sceptical books also started to appear. Around this time, the judges began restricting the amount of evidence that could be presented by the defense. One theory for the change in the judges' policy towards the admissibility of defense evidence is that they were attempting to keep this new sceptical evidence out of trials.

 

More Examples of Incompetent Defense Counsel

Liljan Öhrström (1996, 1997) has described a Swedish case in which the child witness, "Lotta," is identical with "Gisala" in a case I have described elsewhere (Scharnberg, 1996a). The father's first defense attorney has lost three sexual abuse cases (Scharnberg, 1996a), although at least two should have been fairly easy to win. After Lotta had retracted her allegation, competent counsel was found for both the daughter and the convicted father. I also translated into Swedish Frederick Crews' (1994) two articles on recovered memory therapy in New York Review of Books, which were attached to the new trial motion.

Crucially important to the argument as to why the case should be reopened by the Supreme Court was, apart from the skill of the attorneys, the witness psychological analysis by Astrid Holgerson and the psychiatric report by Rudolf Schlaug.

But when the case was reopened, the defense counsel was permitted to present only limited evidence during the trial. A cynical interpretation of this limitation on defense evidence is that the judges were protecting the prior verdict of their colleagues and attempting to preserve the freedom of the court to produce comparable verdicts in future cases. In addition, if Holgerson and Schlaug were prevented from testifying, the court could more easily refuse to pay for their work. Since the defense attorney (Peter Haglund) was primarily responsible for the case having been reopened, his fee was reduced by 43%.

The first attorney should not have lost the case. Even the most cursory glance at the place of the alleged crime would have revealed the impossibility of committing the act there and the attorney could easily have documented this fact on video. But he did not even ask the arrested father about the physical features of the scene. While in custody, the father was regularly visited by a psychiatrist, who attempted to pressure the father to confess and passed on confidential information to the prosecutor. The attorney did not warn his client about the psychiatrist or support the father when the psychiatrist used the concept of repression to confuse and distress the father who desperately tried to recall things that never happened. He also encouraged the mother to start psychotherapy which had the goal of convincing her of her husband's crimes. But when the father asked his attorney to engage a defense psychologist, the attorney refused, claiming that this was unnecessary and would be wasted money.

The attorney did not inform the mother about what kinds of information the girl had recounted. If the mother had been given this information, she could have established the falsity of most of the stories.

Thousands of defendants have been convicted on no other ground than that "the injured party has made a trustworthy impression" (the standard phrase in written judgements in Sweden). But the attorney assumed that, since the prosecutor had the burden of proof, his client would be acquitted since the prosecutor had no solid evidence. Many more examples could be given of the incompetence and minimal effort of the defense in this case.

Westerberg (1997) has described a case with an incompetent attorney. The latter even pressured the confined and deeply depressed father into making a confession, although the falsity of the confession is apparent from the facts of the case. The judge of the criminal case forbade the father to select his own attorney. Hence, he never had a fair trial.

Some attorneys do not even spend the breaks during the trial with their clients and may even spend them with the prosecutor. Moreover, many attorneys think their job is over after the trial and make no effort to do things that are permitted by Swedish law to improve the prison conditions of the convict.

For a population of nine million people, there are only about half a dozen attorneys and a dozen psychologists in Sweden who are competent to handle cases of sexual abuse.

 

The Swedish Association of Attorneys

If the activities of Swedish attorneys in cases are strange, the policy of their association is even more strange. It is almost exclusively determined by the attorneys for injured parties. For instance, the editorial staff of the periodical edited by the association, Advokaten, publishes numerous articles supporting the sexual abuse-craze, but very few articles presenting sceptical views.

Recently, a professor of jurisprudence, Madeleine Leijonhufvud (1997a), published an article in Advokaten warning men accused of sexual abuse against engaging one of three attorneys - Pelle Svensson, Peter Haglund and Kerstin Koorti. Her justification for this unusual suggestion, since these three are extremely competent defense attorneys, was that the defendant would run the risk of being acquitted! According to Leijonhufvud, one can never be sure that a defendant is innocent; hence, it is wrong to acquit him. If he is acquitted he will be deprived of sex offender treatment which could change his personality from that of being a sexual abuse perpetrator into a non-perpetrator. Leijonhufvud adds that Peter Haglund's clients might well later reproach him for succeeding in getting them acquitted.

Leijonhufvud specifically listed three cases, including the one described by Öhrström (1997). Another case had just been reopened by the Supreme Court, and the proceedings were about to take place in the Court of Appeal. Leijonhufvud was aware that both the prison psychiatrist and his prison psychotherapist were convinced of the innocence of the convict. Hence, none of these were prepared to give him incest therapy. She also knew that the prison psychiatrist was going to testify for the defense.

Leijonhufvud (1997b) describes how another attorney conforms to her conception of the appropriate way of handling a case. This man is the counsel for Thomas Quick, a former mental patient who has voluntarily appeared many times in the mass media. Years ago Quick was sentenced to psychiatric confinement because of a violent robbery. Eventually, with the aid of recovered memory therapy, a psychiatric team encouraged him to recall and confess to unsolved murders of male children in Scandinavia. Although he has so far confessed at least 16 murders, he knows no more about any of these crimes than the average newspaper reader. In the woods he points out the wrong places, where he turns over stones and relates specific details of the crimes, while getting spells of crying when he "recalls his deeds." Sometimes it later turns out that the missing and supposedly murdered boy is still alive and had just moved to another municipality.

Quick has been convicted at three trials for four murders, and prosecutors are preparing further trials. Quick invariably forbids his attorney to mount a genuine defense. Because the attorney has never opposed the prosecutor, he has received fees of a size which are most astonishing even to his best-paid colleagues. But according to Professor Leijonhufvud, this is an example of a how a defense attorney should act.

In another case, Advokaten published an attack upon an imprisoned father written by a psychiatrist (Gustavsson, 1992) who worked at the same clinic as the pseudo-witness psychologist who supported the prosecutor. Requests from various persons to correct the factual misinformation were denied by the periodical.

These examples listed here are not isolated incidences; they occur frequently enough to suggest a general policy. And this policy is tolerated without protest by the defense counsel of the very same association.

 

Outlook

The Swedish defense counsel is in a strong position to influence events and work towards a rational goal in sexual abuse cases. Hence, it is perplexing that they have seldom made use of this potential. Why is this so?

The formal nature of a legal system is not decisive. The most important factor seems to be the pre-existing beliefs of the prosecutor, the defense attorney, the judge, and the jurors. In Sweden, as in the United States until recently, certain myths and unsupported assumptions have been widespread: Sexual abuse is a frequently occurring crime, and a large proportion of fathers assault their children. The effects of these assaults are always extremely damaging. Such crimes could never be prevented unless unusually low standards of evidence are applied. It helps the child to convict the parent. A child will not be harmed if psychiatrists or family members pressure the child to disclose abuse, even if the allegations turn out to be false. The child will not be harmed if a healthy and harmonious relation to a parent is destroyed. Judges and jurors should hesitate to acquit a defendant, because they can never be completely sure of his innocence.

In Finland, Norway, and Denmark the situation is by no means satisfactory. But the above assumptions are less prominent. This is reflected in both the number of convictions and in the reactions of mass media when there is a false conviction.

The fighting spirit of many American attorneys is hardly ever seen in Sweden. Most attorneys do not seem to care about the outcome of the trial. Whatever may be true of other countries, it is my firm belief that the incest craze would never have got such a strong hold of Sweden if the defense counsel had offered resistance. If they had demonstrated to the prosecutors and to the mass media that they would make it very difficult for a prosecutor to obtain a conviction with an innocent client, the prosecutors' zeal might have been curtailed.

The passivity of the Swedish defense counsel had an impact upon the entire legal system. Prosecutors soon learned that they could easily produce a wealth of convictions by gathering or manipulating a handful of trivial facts. On the other hand, within local geographical areas, one single competent and dedicated attorney could have taught the prosecutors that starting a sexual abuse case would be a strenuous uphill battle. As a result, the number of cases would have markedly decreased in these areas.

Whatever initial attitudes judges may have, they could hardly fail to be impressed by the long series of cases in which they and their co-judges convicted some 90% of the defendants. Also, they were repeatedly told by mass media and mental health professionals that every acquittal is a disaster to the child. In less extreme language prosecutors would imply the same thing during the proceedings. By contrast, few judges ever heard a defense attorney present any nontrivial counter argument. Judges are unlikely to have been as ready to accept concepts such as repression, recovered memories, and sexual abuse behavioural indicators if they had acquitted previous defendants on the ground that these concepts were lacking scientific support.

Few Swedish defense attorneys attempt to make the prosecutor reconsider the case. If the weight of the evidence is held constant, it is far easier to persuade the prosecutor to withdraw the charge than it is to win the case in the district court. The reason may be that the prosecutor will read the evidence, while the courts will listen to it. The written Swedish judgements suggest that judges and lay judges perceive only a fraction of the facts presented. By contrast, the prosecutor can re-read and study the documents and is unlikely to miss important evidence.

The Swedish defense counsel must accept responsibility for not having used their many opportunities for opposing the sex abuse craze in specific trials. This was also their obligation to their clients. It is a unique Swedish phenomenon that one group had so great power-and abstained from using it.

 

References

Crews, F. (1994, November 17 & December 1). The revenge of the repressed: Parts I-I I. New York Review of Books. Reprinted in: Crews, F. (1995). The memory wars. New York: New York Review of Books.

Edvardsson, B. (1991). Misshandlad av vem? in: Nowacka, Ewa: En bur som sökte sin fågel. Stockholm: Timbro.

Edvardsson, B. (1993). Dagis-fallet. Modifierat sakkunnigyttrande. Department of Social Science: University of Örebro.

Edvardsson, B. (1995). Inlärningsfallet. Modifierat sakkunnigyttrande. Department of Social Science: University of Örebro.

Edvardsson, B. (1996a). Kritisk utredningsmetodik. Stockholm: Liber.

Edvardsson, B. (1996b). Bordellfallet. Modifierat sakkunnigyttrande. Department of Social Science, Örebro University.

Gustavsson, T. (1992). Inhumant rättsmaskineri när barn utsätts för sexuella övergrepp. Advokaten, 58, 394-398.

Hellblom Sjögren, L. (1994). Vittnespsykologiskt sakkunnigutlåtande. Mål nr B 328/92. Kristianstad tingsrätt.

Hellblom Sjögren, L. (1997). Hemligheter och minnen. Att utreda tillförlitlighet i sexualbrottmål. (Secrets and recollections: Investigating trustworthiness in cases of sexual offences.) Stockholm: Norstedts juridik.

Holgerson, A. (1995). Professionals as evaluators or indoctrinators in sex abuse cases. Issues in Child Abuse Accusations, 7, 233-240.

Holgerson, A- & Hellbom, B. (1991). Vittnespsykologiskt sakkunnigutlåtande. Mål nr. 3938-3939/1990. Kammarrätten i Stockholm. [Witness Psychological Expert Investigation. Cases no. 3938/90 and 3939/90. The Administrative Court of Appeal in Stockholm.) Stockholm: Laboratory of Witness Psychology, Department of Education, University of Stockholm.

Holgerson, A., & Hellbom. B. (1998). Facts or fiction as evidence in court. A Witness Psychological Analysis of a Swedish trial of alleged cutting-up murder and child sexual abuse. Stockholm: Almqvist & Wiksell / Philadelphia: Coronet Books.

Klevius, P. (1996). Angels of Antichrist. Issues in Child Abuse Accusations, 8. 94-101.

Leijonhufvud, M. (1997a). Advokaterna, övergreppen och rättvisan. Advokaten, 63, 12.

Leijonhufvud, M. (1997b, August 28). Advokater kritiseras. Juridikprofessor: De har gjort incestmål till affärsidé. Borås Tidning.

Loftus, E. (1993). Statement of Professor Elizabeth F. Loftus, Case No. B 328192, District Court of Kristianstad, August 29, 1993.

Öhrström, L. (1996). Sex, lögner och terapi. Stockholm: Norstedt.

Ohrström, L. (1997). The rape. Issues in Child Abuse Accusations, 9. 25-35.

San Francisco Examiner, (1993, reprint, April 4-9). (Many articles on recovered memory therapy, by S. Salter & C. Ness & E. Godley.)

Scharnberg, M. (1993). The non-authentic nature of Freud observations. Vol. 1: The seduction theory. vol 11.- Felix Gattel's early Freudian cases, and the astrological origin of the anal theory. Stockholm: Almqvist & Wiksell International I Philadelphia: Coronet Books.

Scharnberg, M. (1996a). Textual analysis: A scientific approach for assessing cases of sexual abuse. I: The theoretical framework, the psychology of lying, and cases of older children. II: Cases of younger children, including a case of alleged necrophilia, and the shortcomings of judicial logic. Stockholm: Almqvist & Wiksell International I Philadelphia: Coronet Books.

Scharnberg, M. (1996b). Textual analysis: An approach for assessing the truth value of allegations of sexual abuse. Issues in Child Abuse Accusations, 8, 1-21.

Scharnberg, M. (1996c). The principle of similarity: A source of legal evidence on sexual abuse. Issues in Child Abuse Accusations, 8, 22-33.

Scharnberg, M. (1997a). Bevisvärderingsfrågor: juristers och psykologers svårigheter att förstå varandra. Svenskjuristtidning, 82. 394-400.

Scharnberg, M. (1997b). Textanalytiska metoder: En introduktion. Department of Social Science, University of Örebro.

Trankell, A. (1971). Vittnespsykologins arbetsmetoder. [The methodology of witness psychology.] Stockholm: Utbildningsförlaget.

Westerberg, S. (1997). Children as the primary losers when sexual abuse is falsely alleged: Two Swedish cases. Issues in Child Abuse Accusations. 9, 46-53.

 

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