The Juryman's Tale

by Trevor Grove

  Korkolis told the court: ‘What is true about Mediterranean people is we are more open. We find it more easy to discuss things which other people might find strange. We don’t have exactly the same barrier to going to the limit of the law.’ Ah, so this was what he called his own morality. ‘Mr Fraghistas knew I was a man with passports, but not connected with him … And I was of a nice family.’ In other words, he implied, an ideal co-conspirator.

  The risk Korkolis was running in saying all this was that by parading his character before the court he was inviting the prosecution to do a hatchet job in return – something that would have been ruled out had he not made the first move. The outcome was long absences for the jury during which, I have since learned, Miss Korner’s team sought, by every means possible in the time available, to bring Korkolis’s true criminal record to the jury’s attention. That proved impossible because, under English law, documentary records of prison sentences in other countries are not allowed as evidence unless supported by appropriate witnesses. Without them, Korkolis could simply deny that he was the Korkolis mentioned in the records. A Greek policeman was flown over, I gathered, courtesy of the UK tax-payer, and toyed with his worry-beads for a while outside the courtroom. But whatever it was he would have said, it seems it was not enough to pass muster with the judge. Home he went to Athens. And we were left completely in the dark about Korkolis’s frauds, perjuries and extensive prison career.

  How different things might have been had we not remained in ignorance. But then, how different almost everything would be if juries were routinely told about a defendant’s past. The acquittal rate would slump overnight – and no doubt a few innocent people would go to jail as a consequence.

  LIE DETECTION

  It is a fundamental aspect of our law that a defendant must be judged only on the evidence relating to the charges before him, not his ‘previous’. In contrast to what happens under the French inquisitorial system, in this country the accused must be assumed not to have form. Even in a re-trial, jurors are supposed to be ignorant of what has gone before. As Ronald Thwaites QC wrote in a letter to the Telegraph in February 1997, ‘The fact that the defendant has been in trouble before is not evidence of his guilt in a later case.’

  While anyone can understand the supremely fair-minded principle behind this practice, I have yet to meet a single former juror who does not feel mildly outraged that such significant information is withheld from juries until after the verdict. After all, witnesses frequently have their pasts raked over in order to discredit them, notoriously so in the case of rape victims. Only the defendant is allowed to obliterate history in this fashion and start his life story from Year Zero.

  The consequence is that juries are required to judge the honesty of defendants without the aid of a vital bit of knowledge, an everyday tool we all use in weighing someone up: what is this person really like, what is his or her history? What was the character of the defendant before he or she allegedly committed this crime? Outside a courtroom, this would be considered a hazardous way to proceed. No one would take on a baby-minder or give a plasterer the house keys so casually. An honest appearance is not enough. One requires references. In the case of Korkolis, we had only those references he chose to give us, and no means of knowing if they were true.

  How does a jury decide who is telling the truth and who is not? The courts give no guidance at all. We are supposed to draw on our own experiences of life. Maybe subconsciously every citizen builds up a kind of mental dentist’s tray equipped with lie-detecting probes to test the truth of what emerges from other people’s mouths. I doubt it. More likely it is a jumbled shoe-box of personal prejudices and half-remembered TV clips from Poirot or Inspector Morse. Liars sweat and twitch and never look you in the eye; truth-tellers are relaxed and don’t contradict themselves: that is the conventional wisdom.

  But a jury cannot always get a decent look at whoever is giving evidence: in Court 3 at the Old Bailey, for example, the witness box is alongside the jury, not facing it. Even where the jury is across the courtroom from the witness, you would need a telescope to spot that telltale drop of perspiration or flickering eyelid. Research and experience suggest that there are no reliable formulae to help a juror anyway. Professor Glanville Williams remarked in his 1955 Hamlyn Lecture, The Proof of Guilt (Stevens & Sons, 1955), that ‘some liars are bold and some honest witnesses are hesitating and nervous. All who have experience of the criminal courts can testify to this, though the jury who have to try the case may unfortunately be quite unaware of it’.

  In his excellent book The Jury: Disorder in the Court (Doubleday, 1995) the Wall Street Journal’s then legal editor, Stephen Adler, upturned the conventional wisdom regarding fibbers:

  Studies show that compared with truth-tellers, liars typically make fewer hand gestures, move their heads less, speak more slowly, and sit more rigidly, but that they betray their anxiety by shifting their feet or tapping their fingers. In addition, liars tend to relax their facial muscles and affect pleasant expressions, as if aware that observers will be watching their faces for signs of deceit.

  In one experiment cited by Adler involving seven hundred and fifteen people, ‘a truthful speaker was judged to be lying by 74.3 per cent of the subjects, and a lying witness was judged truthful by 73.7 per cent’. In other words, unless you were a trained observer, the witness were Pinocchio or the witness box had glass sides (to allow an uncensored view of foot-shifting and finger-tapping), a skilled liar would have the advantage over an honest bumbler every time.

  The very day our jury was sent out to deliberate, a television programme ran a nationwide experiment called Megalab aimed at deducing whether jurors were influenced by the appearance of defendants. The millions-strong audience was given some skimpy evidence of a crime, then invited to consider which of two men was guilty: the agreeable-looking blond bloke with the wide-set eyes or the Neanderthal brute at his side. Had the two men had sacks over their heads, it would have been impossible to decide, so flimsy was the case. As it was the result was stunningly unsurprising: 40 per cent of those who phoned in their verdict found Mr Nasty guilty while only 29 per cent (Quasimodos to a man and woman, probably) gave the thumbs-down to Angelface.

  I suppose the result should have been alarming, confirming the superficiality of people’s perceptions. On the other hand, which of us doesn’t privately trust our instincts about a person’s looks? Our ancestors have passed down genes programmed to be suspicious of, say, close-set eyes, thin lips and angry expressions, in much the same way that rabbits know they had best avoid anything on four legs which pants, barks and slavers. Doesn’t experience prove this to be common sense more often than not?

  There is another difficulty to which there is really no solution, and that is the ease with which the memory can deceive itself. Any married person is familiar with the one story, two versions phenomenon, otherwise known as the ‘No, darling, it was Tuesday’ syndrome. A witness may be as honest as young George Washington yet still misremember an incident. Each individual’s memory functions differently. Alistair Cooke recently told listeners to his Letter from America on Radio 4 the story of a Harvard law professor who regularly gave a lecture called ‘What Is Evidence?’ At a certain point it was always interrupted by a woman bursting into the lecture theatre, threatening him with a gun, and rushing out again. He would then ask the students to recount what had happened. They could seldom agree, even on the sex of the assailant. My wife has a flawless recall of dates, names and quotations, but forgets where she has left her glasses a dozen times a day. I do places, faces and smells (and glasses, of course). Only as a team would we make a reliable witness.

  It is also obvious that any account of an event can change with the telling. For example, a police interview might frighten you into an unintended falsehood, which you then persuade yourself was true rather than appear to vacillate. Or an inaccurate press report might seem more authoritative than one’s own recollections, and so colour them significantl
y. In the United States, lawyers are permitted to rehearse their witnesses, a procedure which must make their testimony wide open to editing.

  Stress can drastically distort the way you remember an event. There have been innumerable tests involving fake car accidents where eye-witnesses come up with astoundingly different versions of what happened. The terror induced by a weapon can be still more disorientating. During our own trial, a real-life drama occurred not far away at the Law Courts in the Strand, when an aggrieved woman burst into a courtroom and threatened the three judges on the bench with a gun. According to the Old Bailey gossip, hardly anyone present – mostly experienced lawyers – was able to give the police an accurate description of the woman after she had fled from the court. Their faculties had presumably been paralysed by adrenalin, their vision hypnotised by looking down a pistol barrel. It was a real-life version of the Harvard professor’s little demonstration.

  Jurors are instructed in none of these nuances of perception. I doubt if it would be very helpful if they were. The juryman’s eagerness to play detective is already a bit of a liability. The chance to take on the twin role of behavioural psychologist would be irresistible. Anyway, even lie detector tests are fallible, as the Michael Douglas character explains in Basic Instinct. Best to make do with such knowledge and experience as we have – in other words, that old imperfect stand-by, common sense.

  At least in our own case we had the benefit of many witnesses and many days’ exposure to them. We could learn on the job. The trouble was that Korkolis’s manner was so erratic, it was hard to judge what he was saying by normal criteria. In our desire to be fair, even common sense was willingly suspended. In a native English speaker, his garrulousness would have made us suspect he was muddling us on purpose. As it was, my fellow-jurors showed great charity and sophistication. Without any sort of discussion, I had the impression I was not alone in my view that much of Korkolis’s outlandishness should be put down to linguistic handicaps rather than deliberate obfuscation.

  This meant exercising great patience. Here is how Korkolis, in a passage admittedly rather more strangulated than usual, described an alleged meeting between himself and George Fraghistas to discuss the blackmail plot. My note, as near verbatim as I could manage, reads: ‘So the losses going on till now, OK? I told him. When in this now also. I accepted. I told him. No I go later. I told him. No, he told me. He organise he had a debt. He elaborated. Then if now we wouldn’t do it as kidnapping as connected with debt.’

  Amazingly, we sat through long stretches of this sort of stuff without going insane. By sheer determination on his (and our) part, Korkolis usually made his meaning clear. At one point he addressed His Lordship: ‘My problem is how I am to deal with all this without confusing the jury.’ The judge responded, ‘You are doing exceptionally well, if I may say so.’ And so were we.

  But His Lordship also pointed out something I had already noticed and maybe others had. ‘Mr Korkolis,’ he said, ‘you rush in direct proportion to the importance of what you are talking about.’

  It was true. Every time we seemed to be approaching a particularly crucial part of the evidence, the stream of Korkolis’s fluency would become the Rogue River in spate. Was this just over-excitement – or a ploy to whisk us through dangerous stretches of water without striking a rock? Korkolis retorted with a good joke. He was so prone to gabble, he confessed, that ‘even I don’t understand what I am saying’.

  Judge Goldstein picked him up on something else: ‘Mr Korkolis, you have said the same thing over and over again. There is an English expression: “Methinks he doth protest too much.” It is from Shakespeare. It means if you go on saying the same thing over and over again the jury might wonder why.’

  HELLO, HUMPHREY BAIZE

  The scene each morning in Court 5 resembled Groundhog Day. Only the prison officers and the jurors’ clothes changed. Everyone and everything else was identical, often including the words tumbling from Korkolis’s mouth and being impassively recorded by the court stenographer. Again and again he returned to the same themes and we to the same thumb-marked pages of our taped transcripts. There was the striking brusqueness of Nicos towards his brother during the ransom calls; the failure of the police to arm themselves before storming Hogan Mews; a significant inconsistency in George’s evidence about what happened on the afternoon of the arrests. These matters were insistently returned to and re-examined.

  But there was method in Korkolis’s maddeningness. He was like a mountaineer climbing a difficult rockface. Wherever his sharp eyes found a fissure, he hammered in his pitons with a storm of blows. He was creating a route, however precarious, by which he could haul the jury’s credulousness up behind him. Any handhold would do. Why would they have hidden George in a cupboard that had no lock if it was a real kidnap? Why use sex-shop handcuffs on him which could be undone by twisting a tiny lever and didn’t need a key? Why, after he and Zografos had been arrested and the police had found a pair of mobile telephones in their car, hadn’t the police closed down the line to Hogan Mews? Wasn’t this so that George could hear what was going on and be alerted that the police were on their way?

  All this showed the kidnap was fake, Korkolis insisted. What is more, it was a benign sort of conspiracy: ‘I have my own morality and my own values. I cannot take advantage of a weak person. I cannot take money from people that they need money. I would never going to threet anybody.’ Besides, the Fraghistas family had had dealings with the Greek Colonels and with the Soviet Union: so it was dirty money anyway.

  This might have been a good moment for a lofty reference to Occam’s Razor by the judge. To a detached eye, the web of assumptions and innuendos being woven by Korkolis would have looked increasingly absurd and flimsy. For us, who were entangled in it, scepticism came less easily. ‘Honi Soit Qui Mal Y Pense’ said the motto above the judge’s head.

  So the benefit-of-the-doubt gauge continued to waver. The business of the handcuffs had definitely moved it a notch in Korkolis’s favour. Why wouldn’t real kidnappers use real handcuffs? Once you had been shown the lever, it looked easy to undo them. The judge had even suggested rather sportingly that we should take them into the jury room and toy around with them ourselves. Miss Korner had objected: they might still have traces of forensic chemicals, which could harm us. Humph. The detective tendency among us was keenly disappointed.

  (Unknown to the jury, the lawyers had been just as intrigued. During a break, one of the defence barristers tried the handcuffs on, undaunted by chemical hazards. He had then been unable to get them off, despite knowing about the lever. His colleagues tried to assist. A farcical scene ensued, in which the usher was sent for help, presumably the Old Bailey bolt-cutters. Eventually DS Hawkins came to the rescue and released the QC from his shackles. Now, that would have been a helpful piece of evidence for the Crown, had we been told about it. But of course we never were.)

  It was now nearly the end of February, Day 48 of the trial, and a minor civil war had broken out in the jury. Apart from the Christmas break the court had already been adjourned for several days because of illness. There had been a day lost for Kate’s family funeral. Then my own aunt died. (‘We can call the film A Trial and Two Funerals,’ said someone unfeelingly.) Now one of the jurors was insisting that she wanted three days off to take her mother to the country for a birthday treat. The hotel had been booked long ago. This seemed to some a frivolous reason for holding up the trial, especially to those who would be forced to go back to their ordinary jobs until we reconvened. A compromise was reached, clerk and usher tactfully combining the roles of court officers and tribunes of the people.

  This was evidence that as a body we were becoming quite good at sorting ourselves out and reaching consensus. But even the tightest-knit group becomes separated in a hall of mirrors. My impression was that in the jury box itself at this stage we remained twelve more or less bewildered individuals, trying to discern which of a myriad wavering images might reflect the truth.

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p; The conspirators’ plan, Korkolis said, was that if the fake kidnap went wrong and the family smelt a rat, then they would make it look as much like a real kidnap as possible. This would save George’s face and avoid the family’s having to admit he was a scoundrel. The police would find weapons, balaclava helmets and incriminating tapes galore. But – and this was to have been the plotters’ trump card – George would refuse to press charges or be a witness. ‘Fraghistas was the only one who could shoo [sue],’ Korkolis explained. ‘This is correct. I know from experience. He can be tied from the ceiling and it is not a kidnap [if he doesn’t sue].’

  In other words, members of the jury (he appeared to be saying), if you think it looks as though we kidnapped George Fraghistas, that is because we wanted it to look exactly as though we had kidnapped George Fraghistas. The more genuine it seems to you, the better we did our job. When you hear the tape of George weeping on the telephone to Marily, that is because ‘he made a false sobbing when his sister tried to negotiate’. Why were there traces of the defendants’ saliva on the ‘fake’ balaclavas? Because they had had to pull the hats over their heads to know where to cut out the eye- and mouth-holes. ‘How you should do it otherwise: you have the eyes up here and the mouth here?’ They flushed the bits of wool down the loo.

  They even mopped the surfaces of the upper floors at Hogan Mews to wipe off George’s fingerprints, so that it should look as though he had never strayed out of his cupboard except to visit the bathroom. Actually, of course, they were all having a whale of a time, said Korkolis: ‘There was a lot of laughing in the house.’ George strolled about as he pleased. He ate chicken, mushrooms, prosciutto … but no sweets because ‘he had diabeet’, though he was partial to Háagen-Dazs. Clever Mr Korkolis to throw in these mundane details – which just happened to coincide with George’s own account of his prison fare.