Ranthosh MAHALINGAM

Written assignment #1 on question 1

Work presented to
Philip Alexander Steiner
Introduction to Legal Studies II
LAWS 1002
Groupe A
University of Carleton
Department of Law and Legal Studies
2 November 2023
 Law is seen as, or even defined as, a regulation imposed by the government and

enforced by an institution called the court. This regulation is also seen as impartial since it

doesn’t change from one person to another. This impartiality can only bring neutrality if the

judge or the jury is neutral. This means that there couldn’t be any kind of bias toward one

more than the other. Sometimes, without even knowing, there could be a predisposition in a

case called tunnel vision. This means that the person in charge of evaluating the case may

eliminate data that doesn't align with the prosecution's theory. This could result in a

wrongful conviction. In other cases, discrimination against someone can also lead to a

miscarriage of justice, as exemplified by the case of Donald Marshall Jr. In 1971, Donald

Marshall Jr., a Micmac individual from Nova Scotia, Canada, was wrongfully convicted in

the murder case of Sandy Seale. Based on my Critical Legal Studies, my senior lawyer is

attending a conference focusing on the "So-Called Neutrality of the Legal System." To help

him understand, I am writing a short discussion linking this theme with the case of Donald

Marshall Jr. At the center of this discourse lies the famous case of Donald Marshall Jr.,

illustrating the shortcomings of the legal system. Marshall's case provides a compelling

illustration of the legal system's failure to attain its intended goal of neutrality. This case

highlights the presence of bias, unfounded assumptions, structural deficiencies, and

economic disparities within the system. In this discussion paper, we delve into these issues,

connecting the dots between the ideal of a neutral legal system and the perturbing reality

that Marshall's case represents. Hence, our discussion will encompass the following key

elements: bias, assumptions, structural setup, and economic inequality just like Marshall’s

case.
 Let's begin our discussion with the case of Donald Marshall Jr. Marshall was born in

1952 in Nova Scotia and belonged to the Mi'kmaq clan, making him an indigenous

individual. At the tender age of 17, Marshall was wrongfully convicted of the murder of

Sandy Seale in 1971. During this period, the Canadian legal system harbored certain flaws

that could potentially lead to miscarriages of justice. In Marshall's context, these flaws

became evident as he did not stab Sandy Seale, causing him to bleed to death. The court

system later determined that the crime they attributed to Marshall was committed by a man

named Roy Ebsary. Consequently, after 11 years of unjust imprisonment, Marshall was set

free. The reasons behind his wrongful incarceration became clearer later on. One significant

reason was racial discrimination against indigenous people. This is evident in a book where

it is mentioned, “That the fact that Marshall was a Native was a factor in his wrongful

conviction and imprisonment”1 Therefore, we can observe that the court system doesn't

maintain its claimed neutrality and fairness. Another factor that brings forth the court

system's lack of neutrality is discussed in the book. The specific passage I reference states,

“A third man, Roy Newman Ebsary, who was one of the four people who had come

together in Wentworth Park that night, was charged with killing Seale and was convicted of

manslaughter following three trials. He was sentenced to three years in prison.” 2 This

passage points out two aspects of the court's lack of impartiality. The first is the evident

bias towards Ebsary, suggested by the need for three trials to convict him of Mr. Seale's

manslaughter, while Donald was convicted in his initial trial. Secondly, Ebsary's sentence

was only three years, in contrast to Donald's life imprisonment. This disparity underscores

the court's lack of neutrality, as Roy should have faced a consequence comparable to

1
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.32.
2
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.25.
Marshall's. This narrative also implies a bias in the legal system favoring Caucasian

individuals.

Now, let's examine the portrayal of bias in Melvin Green's article. Melvin states: “

[…] long recognized the existence of a “police culture,” a set of beliefs and attitudes that

influence the thinking, loyalties, and conduct of individual officers. Crown counsels are no

more immune than the police to the laws of social dynamics.” 3 Crown culture can introduce

bias against an individual. I believe this because prosecutors have the authority to select

witnesses and determine how their testimonies are presented. In a system that prioritizes

securing convictions, there is a potential for biased or unreliable testimonies, which can

influence the opinions of judges or jurors. This could be because of the beliefs that they

have which is to maintain public safety by upholding the law. So, if the prosecutor thinks

that he is a criminal, he will act accordingly. Then, there is the tunnel vision that could also

play a role in the neutrality of the court. Let’s start with what Melvin describes as tunnel

vision. He says: “ It filters out information inconsistent with the prosecution theory, or

compels the Crown to strain to rationalize it in ways that often test both credulity and

common sense. It leads to prosecutorial overreach and overzealousness.” 4 The concept of

tunnel vision can affect the neutrality of the law because it could create an inadequate

defense. So, if the defense doesn't get all the info because the prosecution is too stuck on

one idea, it's kind of like playing a game without all the pieces. It throws off the balance of

having two sides in court. This is done so that the defendant would be seen as a criminal

because the prosecutor thinks that the defendant is guilty. In other words, if the defense

performs poorly in representing their client because the prosecutor withheld information,
3
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.27.
4
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.29.
the judge might favor the plaintiff, even if the accuser is in the wrong. This is why bias in

the legal system leads to a lack of neutrality in the court. It prevents the judge from seeing

the complete picture from both sides.

Now, let’s turn to the other aspect that could cause a non-neutral legal system which

is the assumption. I think that the legal system is linked well together and allows one and

the other to rely on themselves. For example, a legal authority conducts an investigation

and finds out the defendant is guilty. When this case comes to the court, and the prosecutor

looks at it with the investigation document, most of them are willing to side with their

colleague. This willingness might be caused by the precedent decision that they had, or they

rely on the dependability and authenticity of evidence from certain agencies or specialists.

This can cause the legal system to not be entirely neutral which will be explained after the

next citation. In his article, Green states, “For many prosecutors there is, as well, an

ideological identification with law enforcement. The interpersonal relations that accompany

the work of a prosecutor reinforce these sentiments, including reliance on the police, the

teamwork essential to any substantial prosecution […]” 5 In this passage also, Melvin is

trying to elaborate on a relationship between a police officer and a prosecutor. He

emphasizes that their collaboration is primarily shaped by their mutual objective: to ensure

public safety and uphold the law. They work hard to build an environment where citizens

can go about their daily lives with a sense of security, free from the fear of harm or

injustice. Due to the common goal, the prosecutors have a special assurance in the

information and insight provided by the police, believing in their commitment to truth and

justice. Let's go back to the point of view where the legal system cannot be entirely neutral.

5
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp. 29.
Notable, we must know that the police have the right to charge a person or not. This is

called police discretion to charge. Therefore, an officer could charge a person due to his

skin color or even to his status in society. Thus, there is a bias towards the other party due

to the reason that his comrade believes so. The next statement shows this concept

beautifully. In the text, it says, “ Even when an officer is acting with conscious fairness and

objectivity, subtle influences may arise such as, in this example, whether the teenager

comes from what the officer perceives to be a “good” or “stable” family.” 6 Therefore, we

can see that if a police officer tries to sway a prosecutor or even if the lawyer listens to him,

this could upset the neutrality of the legal system. In the Commission on the Donald

Marshall Jr. Prosecution, it says, “[…] this miscarriage of justice could have – and should

have – been prevented, or at least corrected quickly if those involved in the system had

carried out their duties in a professional and/or competent manner.” 7 In the given quotation,

it is emphasized that if the individuals responsible with assisting him genuinely believed in

his innocence, he should never have faced a conviction for this particular crime. This

skepticism regarding his innocence was, in large part, rooted in his prior encounters with

the legal system. Being a Micmac and being a person who had a past with the legal system,

significantly disadvantaged him in this situation. This predisposition against him meant that

the institutions were quick to conclude that he was responsible for the tragic murder of

young Sandy. Such presumptions stalled the staff handling his case from pursuing

alternative leads or considering his innocence, as they were convinced that he was the

perpetrator deserving of the punishment. In this section, it says, “If, for example, the

Sergeant of Detective of the Sydney City Police Department had not prematurely concluded

6
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.38.
7
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.33.
– on the basis of no supporting evidence and in the face of compelling contradictory

evidence – that Donald Marshall Jr. was responsible for the death of Sandy Seale, Marshall

would almost certainly never have been charged with the crime.” 8 In this instance, police

discretion in deciding to charge was evident in Marshall's case. Doubts regarding his

innocence were largely influenced by his past encounters with legal authorities and his

ethnic background. The officer was so intent on incarcerating him, believing he was the

murderer, that he overlooked crucial evidence that was readily available. Hence, I believe

that making assumptions in a court case based on someone's ethnicity or social status can

lead to miscarriages of justice and compromise the neutrality of the judge or the legal

system. Therefore, we should not rely on an assumption about who committed the crime to

decide the faith of a case because it portrays the legal system as an organization that is not

entirely neutral.

Now let’s see, how the structural setup of the legal system allows it to be not entirely

neutral. In the Donald Marshall case, it says, “If the Crown prosecutor had provided full

disclosure to Marshall's lawyers of the conflicting statements provided by alleged

eyewitnesses; if Marshall's lawyers had conducted a more thorough defense, including

pressing for such disclosure and conducting their investigations into the killing; if the judge

in the case had not made critical errors in law; Marshall would almost certainly not have

been convicted.”9 In this section of the article, we could see the police officer had not

concluded that Donald was the culprit for the murder of Sandy, Marshall’s lawyer would do

a thorough defense to prove to him that he is an innocent man who was wrongfully

convicted. In this instance, police discretion in deciding to charge was evident in Marshall's
8
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.33.
9
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.33.
case. The doubts regarding his innocence were largely influenced by his past encounters

with legal authorities and his ethnic background. His lawyer who listened to his colleague,

the police officer, could have the same point of view. Consequently, the legal system that

Marshall was a part of was not neutral because he was a Micmac and had a little problem

with legal stuff in the past, he didn’t have a chance to plead guilty. This actively

demonstrates that if you are not Caucasian, you are in most cases represented as the

wrongdoer. So, the flaw in the structural setup, where a party can hide information, can

compromise the legal system to not be entirely neutral. Also in the text, it said, “Even after

he was convicted and sent to prison, however, there were numerous other occasions when

this miscarriage of justice should have been discovered and rectified but was not.” 10 In this

part of the text, it says that once you are convicted of a crime, it is going to be hard to

rectify your verdict. This resembles how students are not willing to admit that they messed

up in a group project because they are afraid of looking bad. It's kind of like that with law

enforcement, prosecutors, and the courts. They sometimes don't want to admit they made

mistakes because they think it'll make them look weak. But just like in school, if you don't

admit and fix those mistakes, it can lead to bigger problems down the road. Because of this,

the legal system may not be entirely neutral, as from the beginning of the trial, they might

have already presumed you to be the criminal. Therefore, we can see that the lack of a

structural setup in the legal system makes it not entirely neutral.

Now let’s see how economic inequality affects the neutrality of the legal system. In

the book of the Canadian Legal Studies Series, it says, “[…]there is often a recognizable

pattern to the legal problems experienced by low-income people and a direct consequence -

10
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.33.
social exclusion. When legal problems related to, for example, poor housing, family

breakdown, and unemployment remain unresolved there is a perpetuation of disadvantage

and a greater likelihood of increased detachment from the mainstream.” 11 In this section of

the text, they are trying to explain that low-income people don’t have the income to get a

lawyer to help them get a not-guilty verdict. This is why Vicki Schmolka says that most of

their problems remain unresolved, leading to a "detachment from the mainstream,"

referring to the legal system. Therefore, we can see that the legal system prefers to protect

the wealthy people. So, we can say that the legal system is not entirely neutral in giving a

verdict when it comes to social status. Another passage that solidifies this point is when she

says, “Studies show that unrepresented accused are often vulnerable and disadvantaged due

to their characteristics, low levels of education and literacy, and higher rates of drug and

alcohol addiction. Regardless of the seriousness of the charges against them, these

individuals cannot adequately advocate for themselves. Many of them end up in prison as a

result.” In this part of the text, Vicki that the people who are not represented in court are

usually the people that have drug addicts, lower education, or even alcohol addicts.

Therefore, we could also see that the legal system prefers to protect those who allow the

improvement of society, aiming to have a society that is crime-free and more educated. So,

we can say that the legal system is not entirely neutral in giving a verdict when it comes to

social status.

To summarize the points made earlier, the neutrality and impartiality of the legal

system are the two main pillars of this organization. However, from the discussions, it's
11
Tasson, Stephen, et al., editors. Introduction to Legal Studies. First edition, Captus Press, 2019, pp.183
evident that the legal system isn't entirely neutral from many angles. This is evident in the

text when discussing the biases, assumptions, and structural issues in the Donald Marshall

case. This lack of neutrality is also apparent in Melvin Green's article. Furthermore, tunnel

vision can restrict the scope of an investigation, leading to potential injustices. Assumptions

based on one's ethnicity, background, or prior encounters with the legal system can further

undermine the system's neutrality. Given the various examples highlighted, it's clear that

there's a pressing need for improved awareness, training, and reforms to ensure genuine

justice for everyone.

Bibliography

- Tasson, S., & Bromwich, J.R., & Dickson, J., & Kazmierski, V., & Kuzmarov, B.A., & Malette, S., &

Özsu, U. (2018). Introduction to Legal studies. (1st ed.). Canadian Legal Studies Series