Should the defence have cross-examined Julie Mugford?

[LuminousWanderer]

A radical and controversial question, I know, but I would welcome opinions.  I do think the relevance of the former Miss Mugford's evidence is a ripe question, but as well as that, it now occurs to me that the defence may have made a fatal tactical error at trial.

Angelo added the following comment on my other thread about Miss Mugford:

I disagree totally with your assertion that Julie Mugford's evidence should not have been heard.  She was Jeremy Bamber's partner up to and including the time of the murders, she was privy to his activities, his thoughts and his actions.  She was therefore a material witness for the prosecution and a key one at that.

In response to Angelo, the way I would put it is that [commenting here strictly as a layman], had I been Bamber's defence counsel, in such a hypothetical I would have moved mountains to try to have Miss Mugford's evidence excluded, even if such efforts were destined to fail. 

That may give off the impression that I am embroiled in a paradox, but the purpose of Miss Mugford's evidence was to influence the jury, not prove that Jeremy killed anybody, and I can only say that I am surprised that a barrister of Geoffrey Rivlin's calibre didn't try to have the evidence excluded (that is, assuming he didn't - maybe he did?). 

I can think of at least five alternate grounds for exclusion of Miss Mugford's statements from the trial evidence (each of these grounds can be considered as stand-alone in nature and all are mutually-exclusive, only one need be accepted):

1. Subject to the content of Matthew McDonald's proof of evidence, Miss Mugford's evidence of a pseudo-confession is, in my view, hearsay.  (Others may disagree).  I believe it is hearsay for two reasons: (i). it's a pseudo-confession of murder, and therefore offers the jury at best a secondhand failed hypothesis; and (ii). it offers the jury only an account of a second-hand conversation heard of by Miss Mugford, the details of which she cannot be fully-adduced.

2. Matthew McDonald's police statements neutralise any residual probative utility in Miss Mugford's statement(s) about Bamber's pseudo-confession, rendering Miss Mugford's evidence redundant.  We might ask: If the police thought McDonald was telling the truth, then what is the use of Mugford's evidence?

3. Her evidence is irrelevant, as it does not help the jury decide if Jeremy actually killed anybody.

4. At best, her evidence is character evidence and, that being the case, does not prove the Crown's cause and can be neutralised by counter-evidence testifying as to Miss Mugford's bad character.  Neutralisation of adverse character evidence justifies exclusion.

5. Miss Mugford herself was, at the time, of bad character, which given the inherent difficulties in her evidence, speaks to her unreliability as a witness (regardless of her actual truthfulness on an equation of the facts).

Having failed to have the evidence excluded, I think there then has to be a question mark over whether Rivlin should have cross-examined Mugford at all.  In the same situation, I might have simply said to the jury:

"You've seen the defendant's statements, you know he denies what Miss Mugford says. We need add no more. Her evidence does not prove that Jeremy Bamber killed his family, that is why we didn't cross-examine her.  Her evidence will not help you decide whether the defendant did this."

I think I would have left it at that.  Not an ideal option, I accept, and bearing it's own risks of course, but surely by cross-examining Mugford, Rivlin only strengthened the case against the defendant?

Well, that's what I think anyway!  Not that I'm knocking His Honour Geoffrey Rivlin, Q.C., who was (and is) a very fine barrister and a prominent member of the judiciary, nor Paul Terzeon, who was an excellent solicitor.  This thread of mine is sort of like two blokes in a pub nitpicking over the performance of a Formula 1 driver - nevertheless, I am gradually moving towards the view that Jeremy Bamber was let down by his legal defence team in various ways, starting with the Rivlin/Terzeon defence case theory, which I regard as abjectly flawed.

[APRIL]

You make much of Julie being there to influence the jury. Do you accept that Jeremy himself might have done exactly the same thing. That between them they created enough of an atmosphere for a jury to convict?

[LuminousWanderer]

You make much of Julie being there to influence the jury. Do you accept that Jeremy himself might have done exactly the same thing. That between them they created enough of an atmosphere for a jury to convict?

I think the point is that any 'doubt' or prevarication has to be weighed in Jeremy's favour as a rule, as he's the defendant and now appellant.  That's how the system ensures impartiality, by compensating for Jeremy's inherent disadvantage as a defendant.  That being the case, in relation to your point, there's nothing wrong with Jeremy seeking to make a favourable impression on the jury, as he's the man on trial, but in my view there is something wrong with a prosecution witness being used instrumentally in the surreptitious and not entirely legitimate role of 'jury-influencing' in the form of what amounted to irrelevant and unsupported character evidence, including redundant hearsay as to the crucial question.

Anyway, I've fully made my point, and you may look at things differently.

[APRIL]

I think the point is that any 'doubt' or prevarication has to be weighed in Jeremy's favour as a rule, as he's the defendant and now appellant.  That's how the system ensures impartiality, by compensating for Jeremy's inherent disadvantage as a defendant.  That being the case, in relation to your point, there's nothing wrong with Jeremy seeking to make a favourable impression on the jury, as he's the man on trial, but in my view there is something wrong with a prosecution witness being used instrumentally in the surreptitious and not entirely legitimate role of 'jury-influencing' in the form of what amounted to irrelevant and unsupported character evidence, including redundant hearsay as to the crucial question.

Anyway, I've fully made my point, and you may look at things differently.

Sorry, I don't think I made myself clear. Jeremy -allegedly- didn't put himself forward as, what might be conventionally thought- an innocent man. Such an attitude MAY have turned the jurors against him. He MAY, in part, have been responsible for his own conviction.

[LuminousWanderer]

Sorry, I don't think I made myself clear. Jeremy -allegedly- didn't put himself forward as, what might be conventionally thought- an innocent man. Such an attitude MAY have turned the jurors against him. He MAY, in part, have been responsible for his own conviction.

I don't consider there is any 'may' about it: he was responsible for his own conviction.  I understand that at one point during cross-examination he even snapped back at the prosecution barrister, 'Prove it then!', or something similar.  If true (I haven't got round to reading his transcript through yet), that won't have gone down well. 

What you say I think reinforces my point, though.  If you are right and Rivlin/Terzeon did adopt an approach based on 'challenging the evidence' as opposed to 'asserting innocence', then they needed to be as parsimonious as possible: cross-examining Julie Mugford may have been one of their mistakes.

[Caroline]

I don't consider there is any 'may' about it: he was responsible for his own conviction.  I understand that at one point during cross-examination he even snapped back at the prosecution barrister, 'Prove it then!', or something similar.  If true (I haven't got round to reading his transcript through yet), that won't have gone down well. 

What you say I think reinforces my point, though.  If you are right and Rivlin/Terzeon did adopt an approach based on 'challenging the evidence' as opposed to 'asserting innocence', then they needed to be as parsimonious as possible: cross-examining Julie Mugford may have been one of their mistakes.

He said "That is for you to prove".

[Holly Goodhead]

I think the point is that any 'doubt' or prevarication has to be weighed in Jeremy's favour as a rule, as he's the defendant and now appellant.  That's how the system ensures impartiality, by compensating for Jeremy's inherent disadvantage as a defendant.  That being the case, in relation to your point, there's nothing wrong with Jeremy seeking to make a favourable impression on the jury, as he's the man on trial, but in my view there is something wrong with a prosecution witness being used instrumentally in the surreptitious and not entirely legitimate role of 'jury-influencing' in the form of what amounted to irrelevant and unsupported character evidence, including redundant hearsay as to the crucial question.

Anyway, I've fully made my point, and you may look at things differently.

If the defence didn't cross-examine and attempt to break her testimony then surely the prosecution would have a field day?  As I said in another post her examination in chief and cross examination doesn't seem to have survived so we have no real idea how strong or weak it was and how jurors may have perceived it.  No one is party to a jury's deliberations so we have no real idea what weight the jury attributed to the various aspects.  Jury's questions put to the judge would seem to suggest the blood and silencer loomed large.

All the research shows even when lay witnesses want to be truthful eg eye witness testimony it is very unreliable.  In this day and age of forensic science I would like to see an end to lay witness testimony other than obviously direct evidence from victims of crime eg assault, GBH, mugged, raped etc.

IMO parts of JB's trial were akin to a kangaroo court with the likes of Christine Bacon called.