A Legal Point for Voodoo Doughnuts: Contra Spoliatorum, Omnia Praesumunter

by Mary W Maxwell, LLB

Every now and then we find “the smoking gun” or the item that will assure a win for our side.  And then it slips away. Fiona Barnett’s new article about a doughnut shop, whose real merchandise is children, is a good example.

You recall we had Pizzagate, where it was revealed that US politicians’ emails had made reference to “hot dog,”  “cheese pizza” and other ordinary terms that are known to investigators to be code words for “underage sex.”  But the Voodoo Doughnut material is graphic and indisputable.

The customers seem to have had the audacity to order online so there must be an extremely incriminating database of their names and bank details.

I’m here to say do not worry that the data base could disappear and we will have no evidence of the crime.

Maxim of the Day

This is where the law maxim “Contra spoliatorum, onmia praesumuntu” comes in.  Against the one who destroys evidence, everything can be presumed.  Some people say the Law is an ass.  No, no it isn’t.  Legal thinking is one of civilization’s treasure troves.

We often hear that the records of wrongdoing “were lost in a fire” or that the keeper of the records went out of business or whatever.  Almost invariably people say “Ho hum, natch, the powerful crims got rid of the means of having themselves indicted or convicted.” Wait a minute!  To get rid of evidence is tantamount to putting your head in the noose.

I hope you’ll enjoy pronouncing the Latin with me now. (It helps if you’re Catholic, as you will have been trained in Pater noster and all that):

Con-tra spo-li-a-tor-um [against the spoiler],  om-ni-a prae-su-mun-tur [all is presumable]. Wow.

Vigilante Justice?

A Commenter to Gumshoe is advocating vigilante justice. I am not going there – yet – as there are many other possible roads. I will enumerate them in a later article. Granted, our experience to date has been Roadblock City. Granted, there are worthwhile instances of vigilante justice in human history, but it can bring a whole set of new problems.

Here is one Australian example of vigilante justice – or, perhaps, spontaneous justice – that did the job without causing further problems. I am referring to the beating to death of someone who deserved to be beaten to death.

The late Robert Hughes wrote about it in his book The Fatal Shore, concerning the convicts sent to Tasmania from England as a form of punishment – known as Transportation – often for small crimes such as theft.  At the Port Arthur prison, conditions were horrible.  Men died from such things as exposure to the elements, not to mention beatings administered by sadistic guards.

One such guard, (I think his name was Price), taunted and belittled the men every chance he got.  One day he had to deal with a prisoner who had obtained a gun. Price’s life was in danger.  Price dealt with him in the usual way, “putting him down” in front of the other men. After calling him a coward and telling him he was too weak to carry out the deed, Price persuaded the armed man to drop the gun.  Poor fellow did then drop the gun, and so let himself in for terrible punishment.

That great opportunity was lost, but on a certain day many months later, Price was walking through the prison yard. He was so arrogant and self-assured as to not carry a gun himself. Either the men had a sudden urge to get him, or maybe had plotted it for a long time; I don’t recall from Hughes’ telling of the story.  But all at once the men converged on Price – and that was Price’s last hour on Earth.  Justice was attained.

Note that numbers figure into the calculation, and so does weaponry. There is also the factor of morale and support from the wider group.  Still, the psychology of self-assurance can work both ways. On the earlier occasion it saved Price’s life.  On the later occasion it cost him his life.

Reviving the Maxims

The law maxims, which were used to guide judges, have fallen by the wayside but they need to be revived.  The one mentioned earlier implies: if you destroy the evidence of a crime, or even just hide the evidence, you no doubt have a reason to destroy it or hide it. Logic then leads us to conclude that the reason is that you are guilty.

Under the law, you’re only presumed guilty; you still have a right to prove that the evidence got lost by means outside your control. But it’s a good start and is rarely invoked today.  Bring back the maxim! Contra spoliatorum, omnia praesumuntur.

Herewith another ten maxims, in English and Latin:

When a common remedy ceases to be of service, recourse must be had to an extraordinary one.  Ubi cessat remedium ordinarium ibi decurritur ad extraordinarium.

Where there is culpability, there punishment ought to be.  Ubi culpa est ibi paena subesse debe.

Where there is a right, there is a remedy.  Ubi jus, ibi remedium.

Let a man be punished when he commits the offence.  Ubi quis delinquit ibi punietur.

Wherever there is a wrong, there damages follow.  Ubicunque est injuria, ibi damnum sequitur.

Things universal are better known than things particular.   Universalia sunt notoria singularibus.

Vain is that power which is never brought into action. Vana est illa potentia quae numquam venit in actum.

The laws serve the vigilant, not those who sleep upon their rights.  Vigilantibus et non dormientibus serviunt leges.

He who does not speak the truth, is a traitor to the truth.  Veritatem qui non libere pronunciat, proditor est veritatis.

Force is inimical to the laws.  Vis legibus est inimica.

Now translate this one again, into Latin, without looking:  Against the spoiler of evidence, all things can be presumed.

Yay!

 — Mary W Maxwell is the assistant editor of GumshoeNews.com