NORMALIZING JUDGMENTS CAN REALLY PISS ME OFF

OESTERHOUDT STRIKES

It astounds me how much material I can mine from newspapers. Every story is rife with hidden biases. Every perspective is jilted. Every judgment is faulty--at least from particular angles. My writing, too, is faulty from particular angles. But newspapers "disseminate information on a large scale." They even claim to publish "the truth." I make no such claim. I am just a lonely Nietzschean in a categorical world. My facts are my perspectives, no more. To say anything else would be presumptuous at best.

Yet I am not writing to attack factual inaccuracies in news reporting. Rather, I write to illustrate the ubiquitous, subtle value judgments that underlie even the most innocuous articles.

Last week, for instance, the New York Post ran a brief article about the new "Limelight Mall" that opened in the old Episcopal church on 6th Avenue. See N.Y. Post, May 8, 2010 at p. 6. For New Yorkers, this is a seismic shift. Beginning in 1983, a notorious nightclub called "Limelight" operated in the space. It closed down a three years ago. It remained vacant. People thought the building was falling apart. They thought it was ugly. Actually, they never liked it much when it was a nightclub, either. People used to have sex, do drugs and dance there.

But now it's a high-end shopping mall. You can't hang out with lascivious nocturnal denizens in the Limelight anymore. You can't get lost in Byzantine mazes searching for chance encounters there. Nor can you dance away the night to the techno beat. No, now the Limelight has regular business hours. And rather than offering New York nightlife, now it peddles $400 dog collars, custom soaps and Petrossian caviar.

This is Bloomberg New York at its finest. Out with fun. Out with uniqueness. In with drab, revolting commercialism. In with chain stores, banks and luxury boutiques. It makes me want to vomit.

Yet the New York Post voices its values by praising the transformation at Limelight. Although the staff writer does not directly say that a boutique mall is better than a nightclub known for rollicking Epicurean license, she uses a surrogate to make the judgment for her. Specifically, she quotes a 30-year-old lawyer with a 7-month-old daughter who came down to check out the new shops. The lawyer said: "It's fabulous. It was really a dump before."

Wait a minute. What could a 30-year-old lawyer possibly know about what the Limelight was 20 years ago? She was 10 years old back then. She probably didn't even live in New York. The Limelight has been closed for three years. That means she was 27 when that happened. Kids usually graduate law school at 25, which means that for three years before that, she probably never set foot in a nightclub, let alone assessed whether the Limelight was a "dump." Even assuming she did have the time, most law students don't go to places like the Limelight; such indulgence might reflect poorly on their character applications for bar admissions.

In all likelihood, this lawyer moved to New York very recently and rented an apartment in the neighborhood at some obscenely inflated rent. She had a job waiting for her, then popped out a kid. She probably noticed that the church was unoccupied. She probably also noticed that the other buildings in the area housed nice little restaurants and shops, so the church looked "run down" by comparison. So when a boutique mall opened in her neighborhood, she probably thought to herself: "How consistent! Just what I expected for my block! Now I can get caviar!"

This is revolting value imposition. Who the hell is this little lawyer to say whether the Limelight was a dump? She could never have gone to the Limelight in its heyday. She was studying contracts and torts during its last years in operation. She merely heard about the Limelight and immediately concluded that a boutique mall is better than a nightclub. That is a value judgment. And it reflects allegiance to quiet bourgeois comfort. The Post endorsed that judgment.

Screw her. I think boutique malls are dumps. I'll take the nightclub.

Alas, she made the paper, not me.

Thus spoke Oesterhoudt.

JOHN MAYER IS A FUCKIN' ASSHOLE, PURE AND SIMPLE

OESTERHOUDT STRIKES - FOR THE THROAT

I've never liked John Mayer. I always branded his music vacuous, unimpressive, pretentious, lightweight, bourgeois-pleasing, chart-serving rubbish. And I knew from day one that he was no reclusive "shy boy" type. I knew that was all just a lady-luring façade. As the tabloids now routinely report, Mayer is no "in-bed-by-10" sort of dude. He's more an "in-bed-with-10-chicks-by-10-the-next-morning" sort of dude. So all that whispery, faux romantic, breathy, oh-I'm-so-sweet, honey-dipped, bedhead lyricizing all amounts to a big stinking heap of hypocritical bullshit.

Having written my opening paragraph, you can see I have a bias against him. I won't conceal that.

But I'm not writing today to player-hate John Mayer. After all, there are plenty of men out there who would want to be in John Mayer's lady-killing shoes right this minute. They sling dirt at him just because they are envious. To be clear, I'm not envious. There are other things about John Mayer beyond romantic prowess that really repel me. The kiss-and-tell womanizing and the ignorant suburban pretentiousness pale in comparison to his much more substantial misconceptions about social realities in the United States.

Many others have already written about Mayer's recent interview in Playboy magazine. I will recount it in order to show that John Mayer is just an opaque asshole, pure and simple.

During the interview, Mayer fielded this question: "If you didn't know you, would you think you're a douche bag?" In response, Mayer said: "It's like I come on very strong. I am a very…I'm just very. V-E-R-Y. And if you can't handle very, then I'm a douche bag. But I think the world needs a little very. That's why black people love me."

Wait a minute. Just wait a goddamn minute. Black people love you? What the hell is going on here? What is this white man from Fairfield County, Connecticut talking about? Does he really think that African-Americans in any way identify with him? Isn't it enough that he copied their musical forms and passed them off as his own? I suppose John Mayer thinks--as many breathtakingly naïve white hipsters do--that it is "cool to be black." And somehow his imitation of black musical forms entitles him to adoration from those "cool black people." In other words, Mayer thinks that being "loved by black people" means you're "cool."

This is beyond embarrassing. It is insulting.

John Mayer's cultural experience could not be more different from the average black American's cultural experience. John Mayer grew up in Connecticut's wealthiest county. I know what it's like there: I grew up three counties over: Most people's biggest worry is whether to buy a new Range Rover or a Volvo. And there aren't many black people around, I can tell you that.

Mayer's parents were comfortable bourgeois. He went to college. He didn't even go into debt for it. He never wanted for anything. He did not suffer discrimination or abuse. His biggest challenge was dealing with suburban angst, for which he took Xanax pills. He achieved remarkable commercial success by copying blues musicians, even though nothing in his background even remotely compares to what original bluesmen endured in the segregated South a hundred years ago. Sure, maybe John Mayer's "baby left him (ie, Jennifer Aniston, Jessica Simpson, etc.)." But that transitory woe hardly compares him to 1920s black musicians, who not only lamented losing their girlfriends, but also struggled to escape lynch mobs and scrape a living working on a railroad in Arkansas or something. Put simply, John Mayer doesn't know shit about the blues with his well-situated Connecticut ass.

Yet it doesn't end here--not even close. Mayer went on to say that black people love him so much that they gave him a "hood pass." In the Playboy interview, he clarified what he meant: "And by the way, it's sort of a contradiction in terms, because if you really had a hood pass, you could call it a nigger pass…[] I said, 'I can't really have a hood pass. I've never walked into a restaurant, asked for a table and been told, 'We're full.'"

Oh no he didn't. Oh yes he did. He said it. He not only said it. He said it publicly. This is the same guy who claims that "black people love him." Well, from John Mayer's perspective, I suppose it really doesn't matter. He gets to be cool like a black guy without the attendant complications, like being turned away from restaurants because you're black. Nope, he doesn't need to worry about that. On stage, he can be a brother. But off stage, he can just be another rich white cocksucker from Fairfield. Oh, double standards… how very convenient they can be when they work for you.

Inconsistencies bother me in any intellectual endeavor. True, it is hard to escape inconsistencies in life. We are all wracked with contradiction and conflict. I have my own contradictions. But the smugness in John Mayer's strikingly inconsistent positions about race really makes my blood boil. After all, Mayer has made his career imitating black musical forms. He owes African-American culture everything for his success. If it weren't for soul, R&B and the blues, he wouldn't have anything to play. He styles himself "just another black guy." He relishes adoration from black audiences. He touts his "hood pass." But then he turns around and remarks that he never has to suffer the same social handicaps as his black "heroes." And he likes it that way.

Worse, in the Playboy interview, he even said: "My dick is sort of like a white supremacist. I've got a Benetton heart and a fuckin' David Duke cock."

Correct me if I'm wrong, but I don't think many black people would "love" any white man who favorably mentions David Duke in any context. And this is the maddening thing about John Mayer's racial inconsistencies. On the one hand, he owes black Americans everything and "loves" them. On the other hand, he uses the term "white supremacist" to describe his sexual life. Now, everyone is entitled to their sexual tastes. But favorably invoking white supremacy in any context is a bit problematic for a man who claims that black people love him. And it is even more troubling for a man who has made a fantastic career commandeering black musical forms. My conclusion: Once again, John Mayer is just an asshole, plain and simple.

John Mayer swiftly apologized for his statements--in a bite-sized Twitter sentence, no less. He explained that "he should not have used the word" during the interview, remarking that it is impossible to "intellectualize it." Yet Mayer missed the point. The fact that he used the word "nigger" in the Playboy interview is only symptomatic of a much larger issue, namely, his simplistic and self-contradicting positions about race in the United States. John Mayer needs to understand this more than most white Americans, because John Mayer makes his money imitating black music. While many white Americans routinely get away with casual racism, Mayer cannot. He cannot have it both ways. He cannot both be a hood hero and a white supremacist. Despite his contention that "black people love him," he coarsely generalizes about black Americans just as much as the most ignorant white teenage rap wannabe: They're "cool." They're "hip." It's "cool to have a hood pass."

And once again, he does not end there with the generalizations. First, he said that "black people love him" because he is "very." That puzzled the interviewer. But a little interpretation makes clear that Mayer was just stereotyping. "Very" is an adverb that means "more than usual." There is "black," and there is "very black." It intensifies the adjective. John Mayer said that "black people love him" because he is "very." Very what? Simply "very," meaning "living intensely, excessively, recklessly, thoughtlessly, frolickingly." In other words, living "more than usual." Mayer's statement, then, implies that all black Americans live this way; and that's why they love him. He lives "very." He lives "black." This is gross stereotyping.

I am not going out on a limb here. John Mayer truly feels this way. Consider what he said later in the interview: "What is being black? It's making the most of your life, not taking a single moment for granted. Taking something that's seen as a struggle and making it work for you, or you'll die inside. Not to say that my struggle is like the collective struggle of black America. But maybe my struggle is similar to one black dude's."

So now John Mayer--a wealthy white Connecticut suburbanite--is an authority on the meaning of black identity in America? This is so stunningly condescending it's funny. But then you realize it's not funny at all, because this guy actually believes he understands black Americans because he can imitate their guitar-playing. It is simply ludicrous for John Mayer to even suggest he knows a thing about the "collective struggle of black America," let alone to compare his "struggle" (whatever that is… maybe bagging some dancer chick on tour) to "one black dude's."

No matter what he says, John Mayer has not faced struggle in his life. Worrying whether a song about pillows makes the Pop Top 10 does not qualify as a "struggle." By contrast, battling to overcome the pernicious historical legacy of slavery--all the while contending with rampant poverty, educational inequality, discriminatory treatment, unequal housing, violence, broken homes and crime --is a "struggle."

John Mayer is no hero. He's an arrogant, self-righteous, fake, low-frequency imitator who knows nothing about racial realities in the United States. That really bothers me. Every American must come to terms with racism. Our Nation's racial conflict will never end; it stains the land. But there is a way to address it respectfully and a way to address it irresponsibly. John Mayer not only addresses it irresponsibly; he also profits from it. Then he gloats about how wonderful it is to be white and rich in America. So he gets the best of both worlds: Cool like a black guy; privileged like a white guy. Plus he gets all the white chicks and never has to wait for a table in a trendy restaurant.

All this makes him a straight-up asshole in my book.

And this is not slander. This is just an opinion about a nauseating public figure. But it really doesn't matter, because you can't slander anyone with truth.

BIAS AND PREJUDICE IN THE PRESS : NO STORY IS EVER SIMPLE

AN ESSAY

I read the New York Post for two main reasons. First and foremost, it makes me laugh. The headlines are just flat-out funny. Its staff writes in a nasty, even satirical style to mock celebrities and other visible, well-off folks (invisible tycoons are different story because they are not visible). It also covers local New York City stories quite well. In all these ways, the Post is "populist:" It provides a laugh while dispensing relatively accurate local news.

Still, I read the Post for a second reason: To understand my intellectual opponents. While the Post's generic local coverage is populist and funny, its editorial spirit is neither populist nor funny. In fact, it is terrifyingly biased. That's not to say that the Post is any more biased than another newspaper. Every newspaper has a distinct perspective. But the Post's perspective is extremely right-wing. Bill O'Reilly writes columns in the Opinion section. 'Nuff said.

I like getting my news from as many sources as possible. I understand that human sense does not permit me to directly perceive too much in the world. So I turn to second-hand reporting to fill in the gaps. And because second-hand reporting necessarily reflects the bias of those who perceive things, I expect bias when I read newspapers.

For me, reading the news is as much about learning competing arguments as it is about learning "facts." As a philosophical matter, I have difficulty even understanding what a "fact" is, especially when I have no first-hand knowledge about the matter in issue. News reporting purports to relay "just facts." But in reality, its "facts" reflect interpretation and bias as much as any objective "truth." In that light, I suspect every fact I read in a newspaper. The only things I can confidently learn are the newspaper's biases and arguments.

And what luscious biases I find in the Post. To be fair, all American newspapers espouse a particularly virulent bias against Islam. But the Post takes shortsighted prejudice to a fantastic extreme. For almost a decade now, Americans have wondered why "Muslim extremists" attacked the United States on 9/11. I have always known why: Because Western commercial values--which treasure earthly existence over all things--clash fundamentally with Muslim teachings--which eschew earthly success for spiritual success. The fact that Western powers have long encroached on Muslim territory for commercial gain brings this tension in values to confrontation. In essence, the struggle between the West and Islam is a struggle between competing views of human existence: One grossly secular; the other grossly religious. Both are anathema to one another. Misunderstanding and acrimony are inevitable.

But you won't find that analysis in any American newspaper. Rather, you'll find self-righteous odes to the American way over the Muslim way. It's a colossal exercise in "us vs. them." No newspaper makes an effort to see the debate from the Muslim perspective. Heavens no; that would be treasonous. Instead, American newspapers--especially the Post--fan resentment against the "mortal Muslim enemy" by exulting American values over Muslim ones. In the process, they cast difficult questions in a simplistic light, using prejudice and stereotypes distort reality.

Consider two recent Post articles that illustrate these tactics at work. In the first, the Post reports about a Muslim man who fled the FBI, leading agents on a 90 MPH chase through Queens that culminated in a crash and foot chase on the Bronx-Whitestone Bridge. See N.Y. Post, Bridge 'Terror' Thug's Allah Cry, Jan. 9, 2010 at 5. The article says that the man--Adis Medunjanin--was a "high school acquaintance" of Najibullah Zazi, the New York student arrested last year for hoarding drugstore hydrogen peroxide in an alleged effort to build a bomb. Id. The FBI staked out his home for months. Finally, Medunjanin just left the house and ran. According to the report, he "praised Allah" in Arabic shortly before striking a car on the bridge. The report also claims he said: "We love death more than you love life!" in Arabic. Id. Finally, it says that authorities first merely charged him with leaving the scene of an accident. Later, they added terror-related charges. Id.

It is not clear how anyone heard these statements. The article does not say how FBI agents could hear what Medunjanin was saying in the instant before he crashed his car. It is also not clear under what circumstances he said "we love death more than you love life."

What is the net effect here? In short, the report leads the uncritical reader to assume that Medunjanin is a terrorist because he "said things in Arabic" and because he praised Allah. These are gross stereotypes. After all, what does the neutral evidence show here? It shows that Medunjanin was a high school acquaintance of a terror suspect six years ago. There is no evidence that they interacted with each other since that time. The FBI surveilled Medunjanin for months. Presumably, they also wiretapped him. The article does not divulge what the FBI may have heard in those wiretaps. All we know is that Medunjanin fled and crashed his car after saying something in Arabic about Allah, life and death. Those details suffice to brand him a terrorist.

That is bias at its worst.

What about presuming people innocent in the United States? What about fairness? How can Medunjanin escape the stigma that will now follow him? I find all these things unfortunate. After all, we are talking about a criminal prosecution for terrorism. That carries severe penalties. Yet the Post here gave Medunjanin an unfair trial before he was even arraigned. In so doing, it revealed the pernicious American bias that pervades our media: It made him a terrorist because he spoke Arabic, had a Muslim name, mentioned Allah and knew a suspected terrorist six years ago.

But is this the only conclusion to draw from the evidence? Perhaps Medunjanin simply "lost it" after being surveilled without reason for so long. And how do we know what he said in the car before he crashed? What if he said something in English, rather than Arabic? Would that have made a difference? What if he had said: "Oh shit, I'm about to crash" in Arabic? Would that still make him a terrorist? Who knows. All I know is that no one ever reports on these difficult questions in the American press--and especially not the Post.

In the second article, the Post again espouses its virulent prejudice toward Muslims. See N.Y. Post, How Did 'Undy Bomber' Get a Visa? Jan. 9, 2010 at p. 19. Columnist Michelle Malkin takes the opportunity to both generalize about Muslims and castigate the Obama administration for not spotting Umar Farouk Abdulmutallab before his failed bomb attack on Christmas Day.

Malkin argues that U.S. consular officials should never issue "coveted entrance pass[es]" to "globe-trotting, Nigerian-born nomad[s]" who "buy tickets in cash" without "checking in much baggage." Id. Later, she adds that "unmarried, rootless Muslim male nomads" should never receive U.S. visas, either.

Leaving the practical problems associated with Malkin's consular formula to one side, I find it appalling that she recommends a Federal policy based on invidious religious and ethnic stereotypes. After all, Malkin says that "Muslim male nomads" should not be allowed into the United States. Neither should "Nigerian-born" nomads, or "rootless" people, or "globe-trotters," or "unmarried people" or "people who fly with little baggage." These are not workable standards. And they are certainly not standards to which the United States should subscribe, a country that has always prided itself on diversity and equality. It would be awkward at best for the U.S. State Department to advertise America's openness to the world by saying: "Come one, come all…unless you're Muslim, a nomad, unmarried or Nigerian-born."

Hell, I'm unmarried, I fly with little baggage and I sometimes globe-trot to Europe. I shouldn't get a visa, either. Imagine if I was Nigerian: I'd really be in trouble.

In short, Malkin wants prejudice on a governmental scale. Yet her anti-Muslim views find strong support in the Post. Although Malkin's position is extreme, her basic bias against Muslims finds constant expression throughout the American press. In that light, I wonder why the Arab world casts a suspicious eye on America? Could it be that its media routinely mocks them and judges them as terrorists before the fact? I wonder.

We will not solve the tensions between the Muslim world and the West until we stop viewing Muslims as one-dimensional villains. The problems between the Muslim world and the West are understandable. We must merely examine the sharp contrast between the two value systems to see why problems persist. Unfortunately, newspapers do not like talking about value systems. Newspapers do not analyze values; they simply voice them. But the confrontation between the West and the Muslim world will continue until the West tries to understand why its values contrast so strongly with Muslim values.

Sadly, I do not think that's going to happen any time soon. Stubborn self-righteousness inheres in Western thought. And I think the West would rather fight a permanent war against a religion-based civilization than deign to comprehend it.

ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?

AN ESSAY

I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.

My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."

In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."

And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.

This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.

Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.

We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.

And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.

I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.

Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.

This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."

In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.

Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.

TERROR TRIALS IN NEW YORK : DO WE REALLY CARE ABOUT FAIRNESS?

AN ESSAY

On Friday, the U.S. Department of Justice announced that it would try several key al-Qaeda suspects for their alleged role in the 9/11 attacks. That was big news; under President Bush's direction, the Justice Department deferred exclusively to the military for handling so-called "enemy combatants" captured in the "War on Terror." Unlike President Bush, Obama decided to heed the United States Constitution and prosecute these suspects before U.S. civilian courts. After all, these detainees are not "soldiers captured in War" under the Geneva Convention, because al-Qaeda did not sign the treaty. Yet American authorities hold them on American territory for breaking American laws. In such circumstances, there is only one lawful alternative: Try them in domestic courts.

This was a significant step. But the Justice Department announced something even more significant: It would try the suspects in New York.

From a legal perspective, it makes little difference where the sovereign chooses to try a criminal defendant for violating the law. Here, the United States seeks to convict terrorists for plotting to attack the World Trade Center and ultimately destroy it. As long as the sovereign holds the defendant in his realm, he can prosecute him under the ancient principle of "personal jurisdiction over the body." If you are present in a country and you commit a crime there, you can be prosecuted for it in that country--it is very simple.

It also makes sense to try 9/11 conspirators in New York from a practical perspective. In criminal trials, venue is proper when it is easy for witnesses to get to the courthouse. Certain districts have a greater interest in trying a case than others, especially when all the "sources of proof" lie in those districts. Venue is also proper when the crime has a direct connection to the locale. Even the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amd. VI. This makes common sense as well as constitutional sense. It is practical--and somehow just--to try cases in the places where the crimes happened. Every jurisdiction has a public interest in punishing wrongdoing in its own borders.

Yet there are times in which it does not make sense to try cases in the most logical places. New York seems the most fitting place to try those accused of destroying the World Trade Center. All the witnesses are there, and obviously New York has a burning local interest in punishing those who caused such havoc in its borders.

But these practical advantages spawn larger concerns. After all, the Sixth Amendment guarantees criminal defendants "a speedy and public trial by an impartial jury." U.S. Const. Amd. VI. It is also guarantees that "no State shall deny any person of life, liberty, or property, without due process of law." Id. at Amd. IV, s. 1 The Supreme Court has held repeatedly that a State deprives "a person" of "due process of law" if it does not afford him a "fair trial." For obvious reasons, 9/11 conspirators may not get a "fair trial" by an "impartial jury" in New York. That is why it might not make sense to hold the trial there.

How can any New York jury be impartial about 9/11? Daily newspapers routinely run stories about "dangerous Muslims." Bitter memory about 9/11 runs deep. Many people knew individuals who died in the attacks, or they know their families. 9/11 is a focal point for national anger; and it burns hottest in New York.

These are the people who will sit in the "New York jury pool" when the conspirators step into court in New York. Can they be impartial? Can they render a judgment free from passion, excitement, resentment, anger or emotion? Trials are fair when they are based on evidence admitted under law in open court. They are not fair when they are based on emotional reaction, prejudice or bias.

And how can New Yorkers insulate themselves from pervasive press coverage about the trial? As soon as the Justice Department announced that it would try the suspects in New York, the New York Post published a blaring headline: "NOW DIE! 9/11 Fiends Coming Back to New York for Trial--Next Stop Hell."

That headline reminded me about the famous Supreme Court case about trial publicity and Due Process: Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard held that every criminal defendant has a right to a "fair trial free from massive, pervasive and prejudicial news coverage" that is "reasonably likely" to lead the jury to find against him based on inadmissible evidence and emotion. The case also concluded that the trial judge has a duty to control press access to the trial, and to monitor every juryman's out-of-court attention to news comment about the case. After all, according to the Court, the State provides trials in order to "adjudicate controversies, both civil and criminal, in the calmness and solemnity of the courtroom according to legal procedures." Id. at 350, 351, quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965). Those "legal procedures" include the requirement that the jury base its conclusions on evidence admitted in court, not on outside sources or emotion. Id. Prejudicial and pervasive press coverage undermines these goals when it poisons an entire population against a criminal defendant. And it undermines another key goal in our justice system: Fairness.

Many people discount fairness in legal questions. Law professors used to scoff at me when I suggested that certain results in cases were "unfair" or that legal forms resulted in "unfairness." After all, the law attempts to introduce scientific certainty into the maelstrom of human existence. It attempts to govern the ungovernable. In many ways, humans are ungovernable because nothing can control their emotions. Emotions are not reasonable; they are intuitive. Sometimes they flow from perceptible evidence. At times they do not. Legal formalism fails when it refuses to accept just how important emotion and intuition are to the human mind. Like emotion, it is difficult to quantify fairness. We know it when we feel it. We know when a process is unfair, even if we cannot articulate why. Fairness is important to the law, even if it draws ridicule from law professors. And sometimes even the law recognizes how important it is. In more hopeful moments, even the Supreme Court sees that no legal rule can survive unless it comports with intuitive fairness: "[O]ur system of law has endeavored to prevent even the probability of unfairness." Sheppard v. Maxwell, 384 U.S. 333, 353 (1966), quoting In re Murchison, 349 U.S. 133, 136 (1955).

I doubt whether the 9/11 suspects will receive a "fair trial" anywhere in the United States. But I am certain they will not receive a fair trial in New York. The fact that the New York Post blared a headline telling the suspects (who are not convicted) to "Go Die" and mentioned "hell" indicates how New Yorkers feel about the case. True, not everyone reads the Post. But it voices a very popular sentiment, and it is almost impossible to avoid seeing such headlines each day. And these are the people who will receive jury duty summonses. Can we expect them to be "unbiased, calm and serene" as they consider "only evidence produced in court" in this case? I think not.

All this begs a question: Why even bother holding a trial at all for these suspects? In theory, the State and the individual should be equally matched at trial. The State attempts to divine the "truth" about the individual's "criminal act," while the individual--whom our system presumes innocent--is free to cast doubt on all the State's claims. As long as he produces a reasonable doubt about his guilt, he must go free.

But this is all theory. Few Americans presume everyday criminal suspects innocent, let alone the 9/11 conspirators. These men have been demonized in the press for over eight years. They have been held in orange jumpsuits at Guantanamo Bay. We have all seen the pictures. Can any American truly presume them innocent? Can any American reflect on them without bias or prejudice? Yet we now expect Americans--in New York, no less--to put aside all their emotions about 9/11, as well as all the negative publicity they have heard about it for the past eight years. We now expect that they will calmly and serenely reflect solely on evidence produced in court. We expect them to drop all their emotions, preconceptions and prejudices. We expect them to magically forget all the horrible things they have been told in the press since 2001. And we even expect them to respond to a judge's command to "exclude any information I deem inadmissible," including confessions induced by torture.

If our jury actually acts in the way the law expects, the 9/11 suspects will get the "fair trial" to which the Constitution entitles them. But people do not simply shut off their bias or emotion. Nor can they erase a fact from their memory simply because a judge says: "Disregard that fact, please." In short, national hysteria surrounding 9/11 for the last decade has so inflamed the American public that there is no way the 9/11 conspirators will get anything approaching a fair trial.

In this case, emotion, prejudice and a rabid press have already made the decision.

As guilty as the conspirators may be, we should step back and ask ourselves how "fair" our process truly is. And while we're at it, perhaps we should wonder whether we even want "fairness" for "monsters."

But if we sacrifice fairness in one case, what happens in the next one?

FOX NEWS, THE UNITED NATIONS, 9/11 AND OTHER FUNNY STUFF

OESTERHOUDT STRIKES

I found some untroubled moments to watch the news this afternoon. Once in a while I like to know what FOX News has to say about the world, if for no other reason than to assemble new ideas for satire. I must actually hear crazy arguments before I can properly mock them. You can't do impressions without listening to your subject first.

FOX started its 7 PM broadcast with "Three Top Stories." The first involved a Muslim terror suspect who allegedly scoured beauty salons throughout New York buying up hydrogen peroxide. The newscaster said that hydrogen peroxide is a "key ingredient in explosives." FOX showed FBI men leading a young, Arab-looking man away in handcuffs.

In the second story, FOX informed me about a "terror imam from Brooklyn." He allegedly knew about the young man's plot, then lied to the police about it. FOX told me that he was being held on a $1.5 million bond for conspiracy. It also told me that authorities charged this "terror imam" with sexual abuse in 1992. I didn't see the connection between sexual abuse and international terrorism, but it sure made the "terror imam" look like a villain. After all, terrorists are bad, and so are sexual predators. But terrorist sexual predators are worse than both: A sum is always more than its component parts.

Finally, FOX interrupted its broadcast to alert me that officials in Dallas arrested a "young Muslim man" for attempting to car bomb a government building. They did not have any pictures to show. They just showed the man's long, Arab-looking name underneath a menacing-looking silhouette. FOX told me that they "would bring me more on this story as soon as they could."

Why were these the top stories? Did 9/11 just happen or something? Is it still October 2001? Does the whole Muslim fear-mongering thing still have traction among FOX viewers? Michael Moore famously mocked FOX for its relentless fixation on "evil Arabs" and vague, terrifying plots in 2004's "Fahrenheit 9/11." It was funny then, even relatively soon after 9/11. But now it's been eight years; Bush's fear-mongering has decayed beyond passe. Any assertion that bloodthirsty Muslims lurk among us now seems pathetically old-fashioned, even hackneyed. It's not 2001 anymore; there's no more Anthrax in the air. People are more worried about Medicaid now than Osama bin Laden. And for good reason: Because health care in America affects many, many more Americans than any terrorist ever will.

But for some reason FOX didn't get the memo or check the calendar. On FOX, it's still a brave battle between proud Americans and evil Muslims with long names and skull caps. Black is still black and white is still white. Hey, I guess it sells; Rupert Murdoch doesn't dish stuff that doesn't sell, truth or fashion be damned.

This is not the only funny thing I saw on the news tonight. I also saw coverage about all the world leaders at the United Nations this week. Leaving all media bias aside (ie, United States and Israel = good; Iran and Libya = bad), I just have to say how silly "collective security" really is. Woodrow Wilson started the League of Nations back in 1920. He wanted Nations to get together and respectfully solve differences without war or acrimony. It didn't work. Franklin Roosevelt tried to do the same when he conceived the United Nations in 1945. There have not been any world wars since then, but just one look at history shows that there has not been too much world peace since the United Nations started hosting world leaders.

But I am not writing about diplomacy. I am writing about the utter foolishness of U.N. speeches. No one listens to them for their substance. No one even really hopes to change minds or solve problems with them. Rather, people listen to them solely for theatrical value. After all, it's all-too predictable what happens, and it is all very staged. For example, Moammar Ghadaffi got up yesterday and railed against Israel, capitalism and the United States for over 90 minutes. As if on cue, the U.S. and Israeli delegations theatrically walked out. They did the same thing when Iran's Ahmedinijad got up and made similar points. Today, Israel's Prime Minister got up and spoke. Libya's and Iran's delegations theatrically walked out. Then the Prime Minister denounced every delegation that did not walk out on Libya's and Iran's speeches the day before.

So is this international diplomacy? Is this genuine dialogue? No--it is classic theater: Simple, emotional, sensational, uncomplicated. The orators speak in grand, emotional tones. They play to the audience. Their rhetoric delights some and outrages others. It is intentional. Delighted delegations applaud; outraged ones visibly walk out. Then later orators chastise delegates who did not walk out on speeches the orators did not like.

Funny stuff. But the sad part is that after all the fun and games, the world's differences remain starkly unchanged.

TRAGIC NEWS FROM IRAQ

NEWS FLASH

BAGHDAD--Reason, Commerce, Justice & Free Beer regrets to report that an American soldier has died in Iraq. At 5:30 AM EST, the Pentagon confirmed that Private First Class John C. Earl of the Army’s First Division (The Big Red One) succumbed in a hospital after suffering injuries in a vicious firefight with Sunni insurgents near Baghdad. Pfc. Earl was 23 years old. We express our deepest sympathies to Pfc. Earl’s family and loved ones. When American heroes fall, we all feel pain.

Pfc. Earl was a model soldier and citizen. He hailed from Mansfield, Ohio, where he worked at a local car insurance company as an assistant claims representative prior to joining the Army in February 2008. Earl explained to his parents that he joined the army “because al-Qaeda [was] a real threat to all Ohioans.” According to friends, Earl also said that “Osama bin Laden knew Saddam Hussein” and that “Saddam [had] to be stopped,” even though Saddam had been hanged in January 2007. Risking all for his beliefs and his country, Earl left behind a promising insurance career and young wife to protect Ohio from international terror in Iraq.

Pfc. Earl conducted himself with great dignity and responsibility during civilian life. As a teenager, he financed his own high school education by taking out private loans (at 9% APR) from a local Ohio bank. He took out loans from another bank (at 7.6% APR) in order to purchase a 2005 Chevrolet automobile. Despite his early age, Earl worked hard to fulfill his financial obligations to his creditors. He studied full-time and held down three jobs at the same time, including a job at the local ice cream parlor. He never failed to make timely payments on his loans. Upon graduation from high school in 2004, Earl married his sweetheart, Joanna C. Edwards. Earl took out another loan (at 6.9% APR) to purchase a home for his new family. He never missed a mortgage payment, even when he needed to work seven days a week to satisfy his debt responsibilities.

Earl was just as responsible a husband as he was a debtor. He never cheated on his wife. In fact, he accompanied her to the Third Mansfield Methodist Church every Sunday at 10 AM. For Earl, fidelity was a virtue. He honored both the wife to whom he owed faithfulness and the banks to whom he owed money. Most importantly, Earl never even entertained bad thoughts. He took the Bible’s teachings to heart. According to acquaintances, Earl always said: “A sin in the mind is just as bad as a sin in deed.” Despite pressures, temptations and difficulties, Earl never shirked his responsibilities. He understood his place in society. And he worked hard to fulfill his obligations every single day.

Earl believed that military service was the best way to give back for his rewarding life in America. Earl was proud of his job at the Mansfield Property & Casualty Insurance Company, where he earned $23,300 per year with limited co-pay medical insurance (with in-network providers and subject to the company’s right of refusal). He was proud of his wife, mortgage, car and church. Earl was happy in his civilian life. But he understood that al-Qaeda could take it all away unless he stood up to protect it. He volunteered for active duty in Iraq, determined to stop the terrorists bent on taking away his job, church, wife and obligations. Over his wife’s desperate pleas to stay home to raise their child, Earl went off to war.

Not surprisingly, Earl lived military life with the same spirit of duty and responsibility that blessed him in civilian life. He manned a 50-caliber machine gun atop an armored vehicle assigned to protect a fortified compound in Iraq that housed important American energy industry contractors. Within weeks, Earl had his first taste of battle. In a violent engagement known as Operation Purple Anaconda, Earl’s unit preemptively attacked an insurgent base in Baghdad, inflicting 5,612 enemy casualties without losing a single American soldier. Earl personally killed 672 insurgents, none of whom went to church, paid rent, filed income tax returns, owned automobiles, owed interest on back loans or held down responsible jobs. In fact, each insurgent Earl killed had sworn a vow to murder American children, disrupt American commerce, refuse to pay bills and kill American pets. Worse, every insurgent Earl killed had cheated on his wife, inhabited several addresses over the past six years and failed to return phone calls from prospective employers. In Earl’s words: “They weren’t just terrorists. They were irresponsible, too.” In that first battle, Earl served his country well.

Following his baptism by fire, Earl quickly became a veteran. In battle after battle, he showed outstanding valor by gunning down both actual and suspected terrorists, including veiled men masquerading as women. In each case, he showed great responsibility. Although he grieved when comrades died, he took solace in the knowledge that roughly 4,012 Iraqis died for every American who fell. And he took added consolation in the fact that every single Iraqi he killed was an irresponsible terrorist who threatened American jobs and investment ventures. If he could not save his buddies, at least he could kill thousands more insurgents to protect America.

Earl saw his final battle on July 10. While protecting a convoy of American natural gas excavators on a foray to locate fossil fuel deposits south of Baghdad, an enormous insurgent force—including terrorist raiders on camelback—swooped in from the desert hills. Earl laid down a curtain of fire with his 50-caliber machine gun, mowing down 982 insurgents and camels. His comrades called for air support. A-10 ground attack planes raked the terrorists with 30-millimeter cannon fire and deluged them with napalm. A-64 Apache attack helicopters hammered them with missiles. Over ten thousand extremists perished under the withering American fire, but they just kept coming. Like obsessed banshees from Muslim Hell, they charged Earl’s brave defenders, shouting: “Allah, ackbar!”

At some point, Earl ran out of ammunition. According to eyewitnesses, a cowardly insurgent fired a rocket-propelled grenade into the side of Earl’s armored vehicle, catapulting him from his position. He suffered injuries in the fall but kept fighting. He drew his sidearm and shot four camels, then killed their riders with his standard-issue knife. But there were too many insurgents. Taking meticulous aim, Earl fired his last shot into an insurgent’s head. Like all the others, Earl’s final victim—an Iraqi terrorist insurgent bomber named Ibrahim al-Khalifi, age 19—was a perennial marital cheater, credit dodger and deadbeat tenant who never paid rent or went to church. With his last bullet gone, Earl valiantly tried to fight his oppressors with his bare hands. Although he strangled six irresponsible terrorists, a cowardly insurgent blew himself up with a grenade less than 5 feet from Earl, sending lethal shrapnel into his chest. He collapsed to the ground. Minutes later, M1A1 tanks from the 1st Armored Division arrived, killed the remaining 75,000 insurgents and saved the natural gas excavators from certain death. Medics carried Earl from the field and transported him to a military hospital in Baghdad.

Earl put up a brave fight for survival. He endured for ten days before finally slipping into a coma. Immediately before his death, Earl told his commanding officer: “At least I took a few thousand of those deadbeat terrorist bastards with me. They might have taken my life, but they’ll never lay a hand on my wife or steal my job. And I made all my payments, too. I never missed one. I don’t regret anything. I made all the right decisions. I never cheated. I never asked anyone for help. Please make sure someone sends in the checks for July to GMAC and the bank. They’re in my knapsack. I even put stamps on the envelopes. I am proud to have given my life for a country where I could take out loans for my necessities.” In short, in his last moments on earth, Earl was thinking responsibly.

Back in Mansfield, George G. Custice, Earl’s former employer, reacted to news of his employee’s death with great emotion. Starting next week, however, he plans to honor Earl as an American hero by offering special “Hero’s Insurance Rates” for Mansfield residents. Those rates offer a 15% discount on collision policies purchased before August 31, 2009 (subject to special limitations; see store for details). “It’s the least we can do to salute a great American,” Custice said.

Earl’s wife said: “I’m sad. But I’m glad my husband protected Ohio against Saddam Hussein.”

TRUTH IN THE NEWS?

AN ESSAY

Last week, I read an interesting little article in the New York Daily News. See L.I. dad slain uptown, N.Y. Daily News, July 17, 2009. Newspaper reporting interests me not so much for what the writers disclose, but rather for what they do not disclose. Ironically, newspapers ask readers to accept their reports as “truth,” even though close inspection reveals myriad unanswered questions in every article. Even the smallest, most insignificant news stories often conceal luscious “subtexts.” In the past, I rarely thought about subtext. Now that I’ve gained some experience in life, I see that subtext is far more important than printed words. In the end, I never fully trust a news report. I simply use it as a basis from which to draw my own conclusions, applying my own experience and memory to the “facts” presented. In short, I do not rely on the news for “truth.”

So how exactly does “subtext” work? And how do news outlets warp perceptions? Let’s examine L.I. dad slain uptown. It’s a short article. The reporters tell us that a “motivational speaker from Valley Stream, Long Island” named Jeffrey Locker, 52, drove into Manhattan last Wednesday afternoon. He was white. We know this because the News includes a picture next to the headline. We then learn that two young “neighborhood people” in East Harlem (a largely black and Hispanic neighborhood) saw Locker walking into a Deli on Second Avenue at around 3 A.M. Immediately thereafter, they saw him exit the Deli carrying a bottle of water and “some Trojan condoms.” One witness told the reporters that he looked “cool, relaxed.” Two hours later, the same “young people” saw Locker in the driver’s seat of his 2007 Dodge Magnum. On closer inspection, they saw that his hands were tied behind him and there was a cord around his neck. He was dead. According to the “police report,” he had been “strangled and stabbed.”

Upon reading these “facts,” I made my own conclusions. Here was an affluent white man with a successful career as a “motivational speaker.” He lived in the suburbs with his wife and three children. So what could possibly draw him to East Harlem at 3 A.M., park his station wagon on the street, then buy condoms and water? The News does not speculate. But is it not obvious? It is a well-known urban truism that affluent white men often drive into “bad neighborhoods” for drugs and sex. They patronize prostitutes. They buy crack cocaine. They pay for all the “wild things” they cannot get in their “respectable neighborhoods.” They indulge. Then they get on the parkway and head back to their wives and “respectable lives.” Their wives inevitably ask: “Why are you so late?” To which comes the familiar reply: “Oh, I got held over at work.” Why else would this man have been East Harlem? And why else would he have bought condoms? To make water balloons?

You might ask how I know this. My answer: I’ve seen it happen. When I lived in Chicago, there was a “skid row” near my apartment a few blocks from some busy nightclubs. These clubs drew the seedy as well as the trendy. Not everyone went to the clubs; in fact, most came simply to “mill around the streets.” Some preyed on drunk kids staggering home. Women donned high heels and hot pants to attract “business.” And then there was a cadre of wig-wearing black transvestites who flagged down cars and hopped into passenger seats. Most of these cars were “suburban:” station wagons, family-edition SUVs, sports cars. The drivers were all white. They were suburban men who came into the city for “exciting hookups” thinking no one back home would ever know. In short, I know from experience that white men often visit cities in order to get “exciting sex” that they never get at home during their “respectable lives.”

I could not ignore experience when reading about Jeffrey Locker. Nor could I ignore my cynical assumption that suburban white men do not go to poor black neighborhoods for saintly purposes. Perhaps the News did not explicitly mention why Locker was in East Harlem at 3 A.M., but expected readers to make their own conclusions. That may be so. But the report contained some other “facts” that cut against this interpretation. These “facts” try to paint Locker as an “innocent victim,” not someone who knowingly put himself in a compromising position. For example, the article quotes Locker’s wife: “He was going into the city and coming home. He was supposed to be coming home…He was supposed to come home. He wasn’t there by choice.” See L.I. dad slain uptown, N.Y. Daily News, second column, July 17, 2009. It also quotes Locker’s mother-in-law: “He probably trusted someone…He was a very trusting person. That’s probably how it happened. You could sell him the Brooklyn bridge.” Id. Finally, it quotes a neighbor who “often took bike rides with Locker:” “He was a nice, really great guy…He was a really wonderful father.” Id. at third column.

Was the News mocking these people? Or was it genuinely trying to suggest that Jeffrey Locker was a “great father” who was not in East Harlem “by choice,” but rather because he was a “trusting person?” True, these people knew Locker from his “respectable life” in Valley Stream. They likely had no idea that he had secret sexual desires, or at least refused to acknowledge them. But they are the only people quoted. They did not even quote a neutral police source that might have shed some objective light on the reasons why a suburban white male was alone in a “bad neighborhood” at 3 A.M. on a weeknight.

If the News expects its readers to think that Jeffrey Locker was completely innocent and that some “evil minority person” took advantage of him because he was “too trusting,” then it is both racist and naïve. Jeffrey Locker was in the city because he wanted to patronize some prostitutes in East Harlem. He would not have bought condoms if sex were not his goal. He thought he would park his car, buy some condoms at the local bodega, invite some hookers into the car and do what he came to do. But he was playing a dangerous game. He was in a risky position by choice. “Reasonable people” do not go to “high-crime” areas late at night, let alone park expensive cars there. Apparently someone saw him as a mark and attacked him. We cannot know exactly why it happened, but it is not very surprising. It was a crime of opportunity. And it simply defies belief to suggest that someone “seduced” Jeffrey Locker. Did someone “entice him” on his way home to Long Island, convince him to drive all the way uptown, park his car in a “bad neighborhood,” then kill him? That kind of thing just doesn’t happen. Moreover, the unbiased eyewitness statements contradict that scenario. According to the “neighborhood people” who saw him, Locker was “cool” and “relaxed” as he walked from a Deli carrying condoms. That does not sound like some overly trusting, misled soul to me.

In sum, this was a white suburban man who was unsatisfied with his boring sexual life at home, so he went into the city for some fast, anonymous sex with black and Hispanic prostitutes. This was a man with secrets. He was leading a double life. To his neighbor, he was a “really nice guy” and “a great father” who “rode bikes.” But the “neighborhood people” saw his dark side. Who knows how many times he had gone to East Harlem in the past? All this was clear to me when I read the article. I saw a sexually frustrated white middle-aged suburban man using lower-income city dwellers to play out fantasies that he could not indulge in his “respectable life.” It is not complicated. It may be embarrassing and pathetic, but not complicated.

Yet the article reported none of these things. To fully grasp what happened in Jeffrey Locker’s case, I had to apply my own experience and analysis. I could not rely solely on the information in the report. Still, newspapers claim to present “unbiased fact” so that we learn the “truth” about “what happened” in particular events. Newspapers report on “matters of public concern.” Murders concern the public. Nonetheless, the article about Jeffrey Locker does not remotely report the “truth.” No one will ever know the “truth” except Jeffrey Locker and the person who killed him in his car. A few witnesses saw Locker two hours before he died. Their sensory recollections provide us some insight about his motivations and why he was in East Harlem. But they know nothing about his final moments.

Despite the News' best efforts—and every reporting company like it—we can never really grasp the “truth” about events we do not perceive. At best, we can interpret what “may have happened” based upon our own experience, memory, intuition, impressions and emotions. When we do that, we do not actually perceive “what happened,” nor do we come any closer to the “truth” as an absolute matter. Rather, we create truth in our own minds. We hear recollections. We read details. We digest reports. These things interact with our own experience to create something we believe. We see events in our mind’s eye even if we never saw them with our real eyes. We think these mental images are “truth.” In fact, they are nothing more than interpretations based on our own experience. To that extent, truth is entirely subjective. And because it depends on experience, no two people will ever precisely agree on what is true. After all, we all draw on unique experiences to guide our interpretations.

At best, we can agree on certain “indisputable details” when analyzing events. Nothing can replace actual sense. But our society demands “truth” about events, even when no one was there to observe them. Our news media answers this demand. In so doing, it assumes a central role in our consciousness. If we cannot be present to experience every event that concerns us as a society, at least we can receive some information upon which to make our own conclusions. Still, how many people really draw their own conclusions from news reporting? After all, as the Locker case shows, news reporters have the power to selectively publish certain details about past events. Those details channel interpretation. Not everyone has the same life experience to tease out the subtleties concealed in a story. In fact, news stories lure the reader into feeling that he is reading “the pure truth” about a past event. But this is delusional. The mere fact that a newspaper describes an event does not make it true. Rather, the fact that a newspaper describes an event should make the reader even more suspicious about “what actually happened.”

I do not rely on any news media for “truth.” But I do not completely discount it, either. After all, news outlets perform an essential role in disseminating details about events. Without them, we would have no information at all about “things that happen.” Beyond that, however, it is up to me to sort out what “actually happened” based upon my own life experience. It is not easy; interpretation never is. Yet if we simply credit everything we hear in the news, we lend ourselves to deception far more than “truth.” After all, we humans have very limited sensory range. Our senses provide the best pathway to “truth” about the external world. Unfortunately, we can use them to grasp a comparatively minuscule proportion of all the things that happen during our lifetimes. For everything else, we depend on language, second-hand reports, stories, memories, distortions, recollections, biased impressions and legend. In all these cases, “we weren’t there” to perceive the event reported. Nor can we really say whether it “really happened.” We can choose simply to believe it did—or did not. And even then, we see something in our mind’s eye that might be totally different than what “actually happened.”

Is there any way to sift through language, fragmented details, memory and bias to find “truth?” Is it a hopeless endeavor? Or worse, do we just reveal our own individual biases when we try to “create truth?”