INVESTIGATING PEOPLE IS AN UGLY BUSINESS, EVEN IF IT IS WELL-INTENTIONED

AN ESSAY

Yesterday I saw the movie Doubt. In it, Meryl Streep plays a cantankerous Catholic schoolmaster who is determined to unseat the new parish priest (Philip Seymour Hoffman) because she thinks he is abusing a troubled student. She has no direct evidence for her crusade. She has seen him hug the student in the hallway. But everyone else says there is nothing inappropriate about the relationship. The priest says that love is essential to the Christian spirit; he said he hugged the boy because he was enduring ridicule from classmates. In the end, the schoolmaster confronts the priest by claiming that she "spoke to his former parish" about his "history." This leads the priest to leave his post.

Ironically, the schoolmaster later admits to a friend that she never called the priest's former employer. The friend is horrified that her austere confidante would ever lie, even when pursuing a just end. She responds: "In the pursuit of wrongdoing, one naturally steps away from God."

What an incredible line. It made me think about proof and truth, as well as investigations into others' personal history. It also made me think about prosecutors. After all, prosecutions involve the "quest for truth" while "pursuing wrongdoing" through "investigation." Yet that quest--despite its good intentions--often leads prosecutors into serious ethical quandaries, just as it did to the schoolmaster in Doubt. And beyond ethics, investigating people for supposed "wrongs" often brings out the worst in everyone involved.

We all have histories. When someone wants to dig into them, he will always uncover something unpraiseworthy, embarrassing, scandalous or simply ugly.

Meryl Streep's character in Doubt represented a familiar "type:" The self-righteous investigator who wants to find evil in a person's past. Such types do not just appear in Catholic schools or District Attorneys' offices. Rather, they appear everywhere in our society. Whenever a person assumes a morally superior position above another and launches an "investigation" into that person for some "official" purpose, he or she effectively becomes the schoolmaster in Doubt. I have encountered them in private employment, in law practice, in academics and in State licensure boards. There is an inherent condescension in their work: They hold the power; they assemble the knowledge; and they pronounce a judgment on another person's history. All the while, they never acknowledge that they, too, may have "skeletons in the closet."

It is uncomfortable to undergo investigation. When I applied for admission to practice law in Illinois, I had to submit to a grueling "Character and Fitness" inquiry. For months, an entire committee combed through my past. They made me fill out an exhaustive "personal history" questionnaire in which I had to disclose all my addresses over the past ten years, as well as confess any disciplinary infractions, criminal convictions, criminal charges, debts and basically anything else "bad" I had done in my life up to that point. They also deeply wanted to know whether I had ever lied under oath or otherwise been "dishonest" when "investigated in an official capacity." Every question seemed to lay a trap: Should you answer fully? Should you answer everything? Should you try to get away with an omission? It was as if the committee wanted you to think they knew everything, but perhaps might overlook something. Every question radiated mistrust, as if inviting you to risk a lie. The whole process seemed designed to make you feel inferior and minuscule. It left you feeling like a specimen under a microscope. And it was your "character" on the block: You either had to confess or they would find out the "truth" by some other means.

Private employers do similar things when "vetting" potential employees. They want references. They want work history. They run credit checks and peruse public records. They compare your resume to other sources to see if you're lying. They even call former employers to get "outside impressions" about the "kind of person you are." Just as the Bar Committee ruthlessly investigates applicants, so too do private employers subject hopeful workers to a suspicion-laden process in an effort to "certify" them. They get to judge personal histories; it is a one-way street. They might be total scoundrels themselves, but they're not the ones applying.

But sometimes we need investigations, don't we? After all, we want to find out bad things about people so we can punish them, or at least prevent them from working, right? Of course we do. Still, that does not mean that investigations are noble. In fact, as the schoolmaster said in Doubt, the "pursuit of wrongdoing" moves us "away from God." In other words, it is somehow undignified to grub in the ground for bad facts about people. It leads to uncomfortable inconsistencies, awkward explanations and outright embarrassment. And taken to the extreme, it leads the investigator to employ dishonest means to accomplish his "honest" ends. Put simply, the quest to affix "truth" to an individual can quickly degenerate into an obsessive witch hunt. When that happens, we should wonder whether the value of "truth" about people is worth the ethical leaps we perpetrate to find it.

I mention all this because truth interests me. We cannot talk about investigation without talking about truth, because investigation aims to produce "truth." Yet it makes no sense to talk about truth without analyzing the concept. After all, truth is about human knowledge. Human knowledge, in turn, stems from human sense. There are comparatively few things in this world that an individual can sense, and those are the only things that he can really "know as true." We know the sky is blue because we see it; we know we are angry because we feel anger in our stomachs. But how do we know about others' pasts? We are limited to our own senses for knowledge and truth. If we do not see a person act "badly," what proves to us that they are truly "bad?"

Investigators set about assembling all the circumstantial facts that produce the impression that a person is "bad" or has "done wrong," even if we personally know nothing about it. That takes real effort--and it takes a lot of scavenging. That "scavenging" takes us "away from God." Scavenging is dirty; that's what pigs and vultures do. Yet this is also what investigators do, even when they have the best intentions.

Theologians say that only God knows the "truth" about other people. In that light, any human attempt to find it seems a hopelessly imperfect enterprise.

Leaving God to one side, modern-day investigations merely reflect power. The investigator sits back, asks questions, assembles facts and makes a judgment about a person based on his "past." The investigator has a past, too. But he need not answer for it. He's the one doing the investigating. He has his own truth; he keeps it comfortably concealed in his memory. But he gets to affix truth to someone else.

It is, after all, an immense power to declare the truth about others.

ANOTHER DAY IN COURT ; ANOTHER OPENING STATEMENT

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Docket No. 09-1006

In the matter of:

The United States of America

v.

Tom Biltmore

CHARGE: (1) “Knowingly transmitting materials dangerous or injurious to life, health or property by the mails” under 18 U.S.C. § 1716(b), and (2) “conspiring to knowingly transmit materials dangerous or injurious to life, health or property by the mails” under 18 U.S.C. § 846.

BEFORE: Hon. Harold H. Hennessey, District Judge

OPENING STATEMENT: Mr. George D. Pullings, Esq., Associate United States Attorney

Good morning. Ladies and gentlemen of the jury and Judge Hennessey, my name is George D. Pullings. I represent you, ladies and gentlemen. I represent the United States of America. It’s my job to put bad men behind bars. It’s my job to enforce your laws every single day. And today it’s my job to prove to you that that man sitting over there, Tom Biltmore, abused our mail system by knowingly sending pictures of hamsters to his friend, Fred Jackson, in Columbus, Ohio. By the end of this trial, the evidence will show that Mr. Biltmore not only knew what he was doing; it’s also going to show that he did it intentionally. And I’m confident that you will return a verdict against him.

This is not a case about hamsters. It’s not even a case about pictures. This case is about safety. You’re going to hear a lot of excuses and explanations from Mr. Biltmore. He’s going to tell you he didn’t know he was sending pictures. He’s going to tell you he didn’t know that pictures of hamsters were dangerous. But let’s focus in on what’s really important in this case: Safety. Without safety, our country could not function. If our country were not safe, our children could not go to school. Our schools could not function without safety or the mail system. Thus, our mail service demands safety, and as citizens we have a duty to make sure that our mail system is safe. When men like Tom Biltmore knowingly send hamster pictures through the mail, we not only endanger our mail system; we also endanger our children. Basically, ladies and gentlemen, we cannot tolerate people who abuse our mail system.

Today, we will show you evidence that will prove that Tom Biltmore owned hamster pictures. We will call an acquaintance to the stand—Phil Parker—who will testify that he saw Tom put hamster pictures in an 8 ½ X 11 inch Handi-Mailer® envelope. Phil is also going to tell you that he saw Tom put that envelope in a mailbox, and he is going to tell you that Tom said: “I can’t wait until Fred sees those hamster pictures” as they walked back home. You are going to hear that Phil has nothing to gain by testifying. In fact, Phil and Tom have been friends for years. But he is not a snitch. He is not testifying in exchange for lenient treatment. Indeed, he does not even have a criminal record and has never been arrested. When you hear from Phil, you can trust him. He is just going to tell you what he saw. And what he saw is enough to find Tom Biltmore guilty.

But that’s not all. As prosecutors, we have a duty to establish that the defendant violated the law. In our system, it’s important for you, ladies and gentlemen, to believe beyond a reasonable doubt that the defendant did what we say he did. We respect people’s rights in this country. We do not want to send people to prison unless we know beyond a reasonable doubt that they broke the laws that protect us all. Believe me, we don’t like sending people to prison. We do not prosecute people unless we feel virtually certain that they broke the law. But we believe that Tom Biltmore is a danger to society. And we believe the evidence will show you—beyond a reasonable doubt—that he broke the law.

You are also going to hear from Mr. T.J. Boneweather, Tom’s boss at Fred’s Fireball Tire Shop in Camden. He is going to tell you about Tom’s obsession with hamsters. He is going to tell you that Tom decorated his workstation with hamster pinups and had a hamster screen saver on his computer. He is going to tell you that he often overheard Tom making phone calls to acquaintances about hamsters. And he is going to tell you that Tom owned both a camera and hamsters. Like Phil Parker, you’re going to hear that T.J. has nothing to gain, either. You’re going to hear that Tom never quarreled with his boss. In fact, you are going to hear that Tom was a good employee. The evidence will show that there was never any tension between T.J. and Tom. We are certain that you will trust T.J., too.

We are confident that the evidence will show you that Tom Biltmore knew he had hamster pictures. It will show you—beyond a reasonable doubt—that he knew he was transmitting them through the mails. And we will show you that he knew hamster pictures were “dangerous and injurious to life and health.” Finally, we will present evidence to show that Tom Biltmore agreed with his acquaintance in Columbus, Ohio—Fred Jackson—to send hamster pictures through the mails. That will prove that Tom conspired to send dangerous materials through the mail, endangering us all and breaking the law. When you hear all these stories and all this evidence, you will see that Tom Biltmore violated the statute in this case. And when the evidence shows—beyond a reasonable doubt—that a person violated a statute, you must find him guilty.

You might be thinking: So Tom sent some hamster pictures: What’s the big deal? We can understand your concern. From your perspective, ladies and gentlemen, sending hamster pictures through the mail doesn’t seem like a serious offense. But from the law’s perspective, it is a serious matter. The law does not like hamsters. Judge Hennessey will explain to you that our courts have repeatedly determined that hamsters are “dangerous and injurious to life and health” under the statute involved in this case. You, ladies and gentlemen, must faithfully respect the law when you decide the facts. It is not for you to decide whether the law is “inappropriate,” “silly” or “harsh.” It is not for you to make policy judgments about hamsters. That is Congress’ job; and Congress has already decided—in the People’s name—that hamsters are dangerous. You must merely decide whether Tom Biltmore knew he possessed hamster pictures, whether he knew the pictures depicted hamsters, whether he agreed with Fred Jackson to send them to Columbus and whether he knew he placed those pictures in a mailbox. If you find that Tom Biltmore knew these things and did these things, you must find him guilty.

I’m from Tennessee. We have a saying down there: A barn is not the same thing as a henhouse. I’m sure you know what I mean. I trust you, ladies and gentlemen, to make a fair and informed decision because you are fair, honest and decent people. The law entrusts you with a great responsibility in our system because the law respects the people. The law respects you because your common experience, memory, intuition and sense are the best way to ensure fair decisions in legal cases. Heck, even George Washington knew that juries made better decisions about everyday experience than some government official. In our system, we don’t need lawyers and judges to decide facts; we just need you. I myself applaud you, ladies and gentlemen, because I know you know that barns and henhouses aren’t the same thing. I know your experience, judgment and intelligence will lead you to view in the evidence in the only sensible way. And the evidence will show you that Tom Biltmore knowingly sent dangerous hamster pictures through the mails. The evidence is going to show you a lawbreaker.

Remember that this case is about more than just Tom Biltmore and hamsters. This case is about safety for all Americans. This case is about safe schools and safe children. Remember that when you weigh the testimony. And no matter what you hear from Tom’s lawyers, remember that you must merely decide a few simple facts. This is not about hamsters or pictures; and it is not about “fairness.” This is about law and safety. Don’t let Tom’s lawyers shake you from that. He either knowingly sent the hamster pictures or he didn’t. That is all you must decide.

You are about to perform a vital service, ladies and gentlemen. You are about to show once again why our legal system is the best in the world. By the time this trial is over, you will decide whether Tom Jones knew he sent hamster pictures through the mail. That is a monumental achievement. And the law will respect your decision. We are confident that you will answer “yes” to the question before you. Thank you.