That Lehrmann rape trial which was aborted

is not something which I can directly comment on. I wasn't there. I have not been in court to hear the evidence.

What I can say is that it is almost certainly no longer possible for the defendant to get a fair trial.  Let me try and explain why.

First of all this trial almost did not take place at all. The reason for this was the amount of publicity the alleged incident generated even before a decision was made to prosecute the defendant. Even after the decision was made the publicity continued. The judge warned the alleged victim and the media against further comment. Comment has continued although the media has been more cautious until the trial started. That alone is a problem.

Second, in the jurisdiction in which the trial is being held it must be held before a jury. There is no provision for trial by judge alone. Now a new trial has been set for February next year. Trying to find twelve jurors within the jurisdiction who have not been influenced by the publicity and the discussion is going to be very difficult, if not impossible. Even if they went to the extraordinary measure (and expense) of finding twelve jurors outside the jurisdiction then it is still going to be difficult finding jurors who have not, at very least, heard about the case. 

Third is the cost. One reason for the defence not giving evidence will be an attempt to reduce the costs for their client. If they believed, as they obviously did, that the prosecution case was so weak that there could be no conviction then it would have been wrong to continue. At very least they believed there could not be, as there must be under the law, a unanimous verdict. Yes, the defendant can seek legal aid at a certain point but prosecution will be at an advantage. 

And yesterday another issue was added to this volatile mix. The alleged victim made a tearful statement outside court. Why her legal team allowed this is beyond my comprehension. The police have, rightly, been informed and asked to consider prosecution.  Yes I am well aware she was seen to be very upset. It still does not mean that she can make statements of the nature she allegedly made. The media repeating those alleged statements could also be in contempt of court.

Those are legal issues. Then there are the other issues. There is the issue that the alleged victim was, if reports are to be believed, offered a very large sum of money to "tell her story". What is more this was apparently offered to her before she went to the police and laid the complaint. If true this will raise questions in the minds of some people, including potential jurors, about the other purposes of pursuing the matter. No, it is not a "simple" matter of alleged rape. Rape itself is never a simple matter. There are also issues with the timing of the breaking of the story and the alleged involvement of other people, in this case some of them being politicians seeking reelection. To even suggest there is nothing in any of this merely leaves many of those following the story wondering whether there is something in it after all. It was even suggested to me yesterday that the alleged victim's outburst yesterday was encouraged by those advising her in order to have the case abandoned. She would then be free to pursue her lucrative book deal and all that goes with it. I won't comment on that suggestion but it was made.

Then there is the question of jurors doing their own research. This was almost bound to happen. The nature of the academic paper which was researched is perhaps interesting and if it had not been presumably copied and taken into the jury room would anyone have been any the wiser? The only way to prevent a jury from accessing the internet for legal information is to sequester the jury - something which almost never occurs. It is expensive to do and places undue pressure on the jury if a unanimous decision is required.

The very fact that the jury was apparently having difficulty in coming to the required unanimous decision is cause for concern in itself. What if that happens again?  Even if the required guilty or not guilty verdict is reached there will be many who disagree. Either way lives and careers have been ruined. There will be no winners in this affair.

It should never have been allowed to reach this point. How do we ensure a fair trial for both sides without allowing the media to take over?