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?

DOMINIC CARTER, EVIDENCE LAW, HEARSAY AND TRUTH : IT IS NEVER EASY TO SAY WHAT "ACTUALLY HAPPENED"

AN ESSAY

Earlier this week, I read about Dominic Carter, a disgraced New York TV anchorman. Last year, authorities charged Mr. Carter with domestic abuse after his wife complained that her husband tried to strangle her during a fight. She later recanted her story, claiming that a mysterious "day laborer" was the assailant, not her husband. That did not faze the prosecutor. He proceeded with the case against Mr. Carter.

Mr. Carter appeared in Queens County court to answer the charges last week. In addition to flatly denying that he "had done anything wrong," he begged the judge to dismiss the case because he was "too important" and had "many friends in New York State government." He dropped several names, including Judith Kaye, the Chief Judge of New York's highest court. The judge was flabbergasted, admonishing Mr. Carter: "Don't drop names in here! You know better than that!" She did not dismiss the case. Mr. Carter's employer publicly condemned his conduct and appeared ready to fire him.

Mr. Carter decided to fly to Kansas City after his hard week back home. While waiting to take off, he stood up and made his way toward the restroom. Although no one exactly knows what happened next, a flight attendant screamed: "I want this man off the plane. He tried to assault me." Mr. Carter vigorously denied the accusation, explaining that he "must have bumped into her" while "bending over to tie his shoes." In any event, the flight attendant won the debate and Mr. Carter was ejected from the plane.

Police arrived to investigate the complaint. They determined that the flight attendant caused the altercation. They did not file charges. Mr. Carter took the next flight without incident.

I recount this story because it made me think about proving things. Evidence law represents our legal system's attempt to inscribe past events with "truth." I have written many times that it is impossible to know "the truth" about anything without being personally present to perceive it with our own senses. Yet we must rely on reports to formulate our beliefs about almost every event in our lives. We cannot sense everything that happens on earth. So we must put our trust in stories. Evidence law tries to assign credibility to stories. It also tries to screen out information likely to confuse the truth rather than find it.

Consider Mr. Carter's relatively banal story. The question is "what happened on the plane as he walked down the aisle?" Did he "deliberately assault" the flight attendant? Or did he really bend over to tie his shoes? Was it an accident? How do we know? We certainly weren't there. I read about the conflicting stories in the newspaper. How, then, can we satisfy ourselves about "what actually happened?"

Let's suppose the authorities decided to put Mr. Carter on trial for assault. To prove assault, the State would have to show that Mr. Carter intended to touch the flight attendant in a harmful or offensive way, and that he did touch her in such a way. From a philosophical standpoint, it is extremely difficult to prove intent, because intent exists solely in another person's mind. When threatened with punishment, a person rarely confesses to what he "actually intended to do," so evidence law requires us to look to external factors to "infer" intent. In other words, we must look to observable facts (ie, behavior, words) to conclude an unobservable fact (the actor's intent).

Mr. Carter's defense would depend upon his ability to show he did not "mean" to offensively touch the flight attendant. That is an intent defense. But to prove his intent, he would have to point to external factors. The best way to do that would be to call witnesses who directly perceived the event, preferably from a close distance. They could say what they saw: Did he slap the woman? Did he raise his arms in a threatening way? Did he "look angry?" Did it "look like he meant to hit her?" These are visual perceptions, and they carry the most weight when attempting to convince a listener to adopt "the truth" about a particular event.

But what about words? We can correctly infer a person's intent based upon his verbal conduct. What people say (and how they say it) can lead us to guess what they feel, intend and think. Still, whenever words enter an evidence question, the analysis becomes much more complicated. Everyone knows the word "hearsay," but fewer know the legal definition. In popular understanding, "hearsay" simply means "reported speech from someone else." In evidence law, however, it has a much more technical meaning. It means any "out-of-court statement offered to prove the truth of the matter asserted." See Federal Rule of Evidence 801(c). "Statements," in turn, mean "oral or written assertions or nonverbal conduct of a person, if intended by the person as an assertion." See Fed. R. Evid. 801(a). Applying these definitions, we see that even the defendant's own words can be hearsay if he repeats them in court. In short, hearsay does not have to come from "someone else," nor does it even have to be verbal.

This introduces a serious problem in criminal cases in which the defendant tries to explain what he intended to do. At the same time, the prosecution has an advantage over the defendant because another evidence rule permits a "party-opponent" to introduce an "opposing party's statement" against him. See. Fed. R. Evid. 801(d)(1)(A). This means that the opposing party here (namely, the prosecutor) could use Mr. Carter's statements against him, but Mr. Carter could not use his own statements to defend himself. For example, if Mr. Carter wanted to prove that he said "I was just bending over to tie my shoes" after the flight attendant accused him, he could not testify that he said it because it is "hearsay." But if the prosecutor brought in a witness who said Mr. Carter exclaimed: "Get outta my way, biatch" on his way down the aisle, it would be fully admissible against Mr. Carter as a "statement by a party-opponent."

This is a bizarre result. It almost seems unfair. After all, shouldn't people get to say what they said on earlier occasions in order to explain themselves? When the question involves individual intent, the individual is really the only one who can confirm or deny it. Yet evidence law turns away from this "best source" because it presumes that accused individuals will not tell the truth.

Thankfully, evidence law offers another way for Mr. Carter to get his statements before the jury. Although he could not testify that he said: "I was just bending over to tie my shoes" after the flight attendant accused him, a different witness could. Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for statements relating to the "declarant's then-existing state of mind," including their "intent." In this case, if a nearby passenger heard Mr. Carter say: "I was just bending over to tie my shoes" immediately after the flight attendant screamed at him, it could be admitted to show that Mr. Carter did not intend to harmfully touch the flight attendant. It would not be hearsay because the defense does not offer it to prove the "truth" that Mr. Carter actually tied his shoes. Rather, it would offer the statement to prove the declarant's (ie, Mr. Carter's) then-existing mental state: Namely, that he did not intend to offensively touch anyone.

I mention all this to show how difficult it is to prove things. It is even more difficult to prove them according to technical evidence rules that prohibit people from explaining what they actually said, yet permit others to use their words against them.

Do all these rules bring us any closer to the "truth?" I don't think so. In the end, ascribing truth to a story depends as much on available evidence as it does to pure intuition. In my view, lawyers make a colossal philosophical blunder when they think they have a greater claim to "uncovering truth" because they apply technical evidence rules. No man-made rule can change the fact that human beings have limited senses. When it comes to believing something that allegedly happened outside those senses, one man's guess is virtually as good as the next man's.

INSCRIBING TRUTH : DO WE EVER KNOW "WHAT ACTUALLY HAPPENED?"

AN ESSAY

We believe what we see with our own eyes. At least, skeptics and empiricists do. When it comes to everyday belief, our senses reign. More particularly, our vision reigns. We must be present to observe something to say for certain that it happened. And if we are not present to observe something, we will only believe it if we can visualize it in our minds as “having reasonably or likely happened.” That is a more complicated endeavor than merely seeing something. But we do it all the time. Our minds constantly alternate between belief and unbelief. Belief reflects our conscious decision whether or not something happened, or whether something exists. We constantly weigh whether or not we believe things. We nurture our beliefs. We express both trust and judgment with belief. If we deem something “worthy of our belief,” we believe it. If not, we say it is “not credible” and dismiss it.

Our eyes and ears have limited range. Our noses and skin nerves have an even more limited range. For better or worse, our immediate ability to sense things is strictly limited to the relatively small size of our bodies. In that light, we have precious limited ability to truly “perceive” things in order to “truly” believe them. Yet our observations and experiences provide us the most reliable pathway to “truth.” We know something is true when we perceive it ourselves. But because our senses are so limited, there are very few things in life we can verifiably believe “true.” For everything else, we must rely on reports. We must accept others’ accounts about “what happened,” then decide for ourselves whether to believe them. Unlike “sensory belief,” this is “second-hand belief.” It does not directly involve the senses. It requires far more intellectual effort than merely seeing something and remembering it.

In general, we can say that we are not bound to believe anything that we do not perceive. If our senses do not directly observe an event, condition or act, there is no way we can say it “actually happened” or “it actually exists.” Rather, we decide whether to believe things we do not observe. Still, we readily believe things we do not observe as long as we satisfy ourselves that the report is “reliable.” What makes stories reliable? This is the core of evidence law. Evidence law aims to regulate the information juries hear in order to provide them only those details that are “most worthy of belief.” In the law—as well as in life—the question for any listener is: What is the truth? That, of course, is the monumental inquiry. And it is not easy, because truth is a tricky subject.

Truth relates to belief. Leaving metaphysics to one side, truth in the law means “what actually happened” in a particular case. That sounds simple, but it is actually immensely complex. After all, “sensory truth” and “sensory belief” only exist in the minds of those who personally experienced an event or perceived a condition. They were “there.” They know “the truth.” But for everyone else—and that means the judge, jury and lawyers—truth is a matter of belief. They were not there. Thus, they must decide for themselves what the “truth” is. It is not what “actually happened.” Only those who perceive something know that. For the listeners, truth becomes a simple question of belief. More to the point, it becomes a subject for judgment. Listeners only believe what they decide “probably happened.” That may be completely different from what “actually happened.” In short, truth in court means nothing more than what the jury is willing to believe.

My evidence professor in law school should have focused on sense and belief before he began teaching us all the Byzantine rules that govern whether particular information is “admissible as evidence” in a court case. If he had begun with belief—and what makes people believe whether something “actually happened”—it would have rendered all the rules easily understandable. The Federal Rules of Evidence methodically screen what information juries may hear before deciding whether to believe a story. In the end, it all comes down to belief. The evidence rules merely channel the information that leads to a jury’s decision whether or not to believe something. No one in the jury has access to “sensory truth” when listening to each side’s story. Rather, like any listener, it must rely on reports. The evidence rules monitor the substance of those reports. In short, they make sense and perception dominant. They allow jurors to hear about what witnesses saw, because vision is supposedly most worthy of belief. Yet the rules carefully restrict a jury’s access to reported language (“hearsay”), because language can distort as much as it can enlighten. And when someone’s life or fortune is on the line, the evidence rules presume that a witness will more likely distort words for his advantage than candidly report what he actually heard. In sum, jurors are free to believe whatever they want. The evidence rules simply try to feed them the “most reliable information” before they decide what is “true.”

But there is more to truth than what a jury decides. Human beings constantly struggle with truth because so much happens that they cannot perceive. They have no choice but to evaluate others’ words. In life, there are no evidence rules to screen out supposedly “unreliable” reports about events, acts and conditions that occur beyond our sensory range. We want the truth, but there is no way we can say it “actually happened.” We must believe things despite imperfect information. We make decisions on imperfect information every day. We judge things “true” even if we cannot verify them.

Still, there are certain institutions that help us believe things we do not perceive. The law provides a ready example. In fact, the law wields a disproportionately large influence on our willingness to believe things we do not perceive. In our legal system, for instance, we theoretically subject suspected criminals to exhaustive procedures designed to affix “truth” to their alleged misdeeds. The State begins by accusing the suspect. Is the accusation “true?” Does the verbal form match what “actually happened?” That is the question. Obviously we cannot know whether it is true for the same reason we cannot know whether anything is true if we are not present to observe it. Yet legal machinery does its utmost to assure us that accused suspects “truly” broke the law. It requires prosecutors to prove “beyond a reasonable doubt” that the suspect committed every single element of the crime. By that requirement, the law seeks to assure the public that the criminal “truly” did what the State says he did, even though the jury never perceived the act. This machinery really has no greater claim on truth than anyone else who was not there to perceive the suspect. Yet it reassures us. It inscribes truth on the offender. After all, truth is persuasive because it reflects belief. If we believe that someone committed a crime, we feel justified in punishing him. Still, just because the law inscribes “an official truth” on a criminal does not verify that he actually did what the State says. We weren’t there. Our senses did not perceive what we believe. To say that the criminal “truly” committed a crime, then, really represents a judgment, not a perception.

Truth is essential to maintain government authority. It is no accident that the State expends maximal effort to affix truth to a criminal’s acts. In so doing, it reminds the people that it not only has the power to punish, but it also has the power to say what “actually happened” without ever perceiving the event. The law, in other words, manipulates public belief and controls truth. Most people readily believe that a convicted criminal did the act for which he received punishment. After all, from a listener’s perspective, there is no reason to doubt the jury’s findings. The listener was not there to witness the criminal’s act. He has no “sensory access” to truth. So he relies on “official channels” to truth. If the State says he committed the crime, and the jury found “beyond a reasonable doubt” that he did, then suddenly the charge becomes “true,” although no one saw it. Listeners comfortably conclude that a convicted criminal did act as charged. They cannot say they know for sure. But they rely on the State’s truth-branding authority. They reward the State with their belief. This is a substantial reward. For when people believe a report, they implicitly approve and respect the person who gives it. The State, then, maintains its control by inspiring belief in its listeners. If the State can cause people to suspend their skepticism and believe things they never see, it truly wields power. In sum, “actual truth” does not really matter. Again, the real question is belief, not “what actually happened.”

Should “actual truth” really matter? I would like to think it does. But that may be asking too much. We cannot sense everything. In fact, considering all the events, acts and conditions that occur and have occurred on this planet, we sense virtually nothing. Everything else comes to us second-hand. We hear, we weigh, we judge, we believe. We make our own truth based on the information before us. Yet many vie for our belief, including the State. We are not bound to give it, but we do. Procedures and rituals awe us. Trials and executions write truth on their subjects. We believe things as long as the State takes the time to grind through the ritual. Does it make an event any more likely to have happened than it would have without the ritual? Not really. If we weren’t there, we can’t really know. Every report is tainted by the bias and perspective of the person who gives it. But we can choose whether or not to believe reports. The State has numerous mechanisms intended to win our belief. And they are quite effective. After all, when we hear that a person has a criminal record, do we believe he committed the crimes, even though we never met him and never saw him do anything? Yes. We have no sensory access to truth in this situation, but we assuage our doubts because the State has written truth upon the man.

In virtually every case, we judge truth. We rarely know it.

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.

WE NEED DNA TESTING FOR ALL CRIMES NOW

CONSIDERED OPINION

By : Dr. Carl J. See, Ph.D. (Occupational Psychiatry), M.D. (Sports Medicine); Chairman, The Safe Children Society; Deputy Fellow, The Institute for Practical Biological Application, Ltd.

Human genes reveal us. Modern medical science can now pinpoint genetic codes that define our personalities, propensities, proclivities, habits and inclinations. When genetic coding first arose as a scientific discipline, scientists could only identify DNA strands for simple attributes, such as hair color, eye color and shoe size. Now, researchers at several major institutes—including The Institute for Practical Biological Application, Ltd.—have discovered that DNA can predict much more subtle behavioral characteristics. Researchers at the institute recently found, for example, that a convicted murderer in Florida had a special gene. Comparing that gene to other murderers' genes, the researchers discovered that they all shared an identical, unique DNA code. Intrigued, the researchers analyzed gene codes from convicts who committed property crimes. They, too, had a unique DNA combination. Acting on these discoveries, our scientists declared that they had discovered “criminal genes” that define whether a citizen has committed—or will commit—crimes.

These discoveries should both impress and sober us. In brief, we have made a startling breakthrough with immense practical application. With continued research, our team will pinpoint genetic codes for all crimes, from major felonies to the pettiest misdemeanors. When we complete our work, we will have the power to exactly know whether our neighbors are potential killers, bandits, thieves, child neglecters, tax evaders or check forgers. Our research can even pinpoint whether a person will urinate in public, slap a police officer or park in a tow-away zone. Our society has a right to know—and to punish—everyone who violates the criminal law, no matter how trifling the offense. The Institute’s DNA research will make it possible to know precisely who will violate the law, as well as those who have already violated it. Our researchers have even discovered a subtle RNA strand change that occurs when a potential criminal becomes an actual criminal. If an observer sees this RNA strand change, it certifiably determines that the subject actually committed a crime. In short, science will both control potential crime and investigate crime that has already occurred. No longer will authorities worry about “catching the wrong man.” Now, DNA will tell the whole story, trial or no trial.

Despite these great advances, we must make legal and social changes to fully prepare our society for the benefits they will bring. First, we must obtain DNA samples from every living citizen in the United States. This is the only way we can assemble a reliable DNA database from which to make predictions and judgments concerning every citizen’s potential and actual criminality. With children, this will be easy. We can lobby Congress and State legislatures to pass laws that require all newborns to submit DNA samples at birth. With adults, we face a somewhat more difficult road. But we believe that all citizens have a right to know who is a criminal. To that extent, we believe that adults will voluntarily surrender DNA samples to law enforcement scientists. We also believe that most Americans will support legislation forcing unwilling adults to deliver DNA samples to responsible authorities. While we understand that some “privacy advocates” may disagree with this course, we note that DNA sampling is no different from fingerprinting or taking blood samples. The Supreme Court has held in several cases that such “biological screening” does not constitute a “search” under the Fourth Amendment. See, e.g., Schmerber v. California, 384 U.S. 757 (1966). From a legal standpoint, there is nothing intrusive about taking a DNA sample. True, DNA samples reveal a person’s complete biological roadmap—including his tastes, hobbies, inclinations and future behavior—but that is not relevant as a legal matter.

Second, we must establish new law enforcement departments to analyze every citizen’s DNA code. Once the Institute assembles the final lexicon matching particular DNA strands with particular crimes, these new departments must assign every citizen’s DNA file a list of potential crimes. Following this work, the departments must determine whether there have been telltale RNA strand changes each file’s criminal DNA chains. If so, that means the citizen has actually committed a crime. This will require the department to alert enforcement authorities to track down and arrest the criminal. For all other individuals with criminal DNA chains, the department must refer the file to police authorities for monitoring and oversight. Additionally, the department must make its discoveries public. The public has a right to know who has criminal DNA. To that extent, law enforcement authorities must publish the names, addresses, phone numbers and social security numbers of all individuals with criminal DNA. These publications must also list the crimes that each named subject will potentially commit. These measures will not only help prevent crime. They will also aid employers in screening out dangerous and unwelcome potential employees.

Criminal law enforcement is everyone’s responsibility. Although police forces and courts administer the criminal law, every citizen plays a role. Citizens created the criminal law by electing representatives to permanently enshrine their values. In that sense, every citizen has an interest in tracking down and punishing those who break their rules. That is why criminal cases speak for “The People” rather than individual parties. Moreover, crime affects us all. Crime impacts commerce, lowers wages and makes people afraid to go to work. When commerce suffers, all citizens suffer. Effectively investigating, tracking and punishing crime protects commerce. And when commerce functions properly, everyone can go to work and enjoy their lives without fear. DNA screening will ensure this result. All citizens just want to work and enjoy their lives. They want lawbreakers to suffer if they do not get with the program. To that extent, the Institute’s DNA discoveries will enable everyday citizens to live better lives.

DNA testing is not an entirely new idea. For several years now, authorities have used DNA evidence to link defendants to crimes involving bodily fluids, hair or skin particles. But now we can do so much more than link defendants to crimes. Today, DNA reveals not only who committed a crime, but also who will commit a crime. It also does far more than merely identify defendants. It provides a complete readout concerning a person’s character and personality. We believe that effective crime control depends not only on good identification, but also on properly understanding people’s character. As mentioned, law enforcement is everyone’s responsibility. Criminals do not belong among law-abiding people. To that extent, decent people must know who has bad character before they cause harm. When our reforms come into force, law-abiding citizens will know whether their neighbor ever forged a check, parked improperly, abused a child, committed a lewd act, lied under oath, pickpocketed, beat a dog or stole welfare benefits. They will even allow law-abiding citizens to “watch out” for people with DNA likely to lead to public urination, vandalism, domestic violence, lying on employment applications or resumes, unruly behavior, criminal tardiness, petty theft, trespassing or downloading child pornography. DNA does not lie. Good citizens deserve to know who the bad citizens are. For the first time in history, criminals will not be able to hide. Both good citizens and law enforcement officials will know exactly who and where they are at all times, even before they commit offenses.

In view of these benefits, it is remarkable that “civil liberties advocates” raise objections to the Institute’s work. According to these critics, there is something “sacred” about “privacy.” They say that a person’s personality and spiritual characteristics are internal matters that no one has a right to know. They also say that government has no right to make assumptions about whether a person is a “potential criminal,” and the Institute’s research will eviscerate the presumption of innocence guaranteed by the United States Constitution.

We strongly disagree with these objections for several reasons. First, the Institute’s DNA research does not make “assumptions” about potential criminality. It establishes scientific fact. When a person has a gene for public urination, he will commit the offense as a genetic matter. There is no “assumption.” An assumption is a belief in facts without personal knowledge. The Institute’s research does not assume; it establishes fact. Through scientific reasoning, observation and logical conclusion, it pinpointed genes that invariably lead to criminal behavior. This may dishearten criminals, but a fact is a fact. Criminals are criminals because their DNA proves it. Unlike the law, there is no disputing science.

Second, we must point out that advances in science necessarily force retreat from outdated social customs. While our Constitution may allow for fair trials and “presume innocence” for all criminal defendants, those guarantees arose at a time when science did not provide the means to precisely know who committed crimes. To that extent, the “presumption of innocence” is a superstition from an earlier, unenlightened age. Now, it would be asinine to presume a person innocent whose DNA conclusively proves to be a criminal. If the subtle, telltale RNA strand shift is present in a suspect, there is no doubt about his guilt. Although this result may infuriate civil libertarians, it is the necessary consequence of scientific advancement. We no longer need “trials.” Either the suspect is a criminal by DNA or he is not. In that regard, the guilty will no longer go free by exploiting foibles in human sense and emotion, and the innocent will not have to fear wrongful conviction. All law enforcement will begin and end at birth—at the moment the authorities obtain a citizen’s DNA sample. After that, it is merely a question of matching the DNA code to the person’s potential crime list.

We are not willing to allow “privacy” to jeopardize our interest in law enforcement. For too long, “privacy” has imposed a cripplingly high cost on society. “Privacy” has freed drug dealers, pimps, hoodlums and mass murderers because the law could not assemble the empirical evidence it needed to convict them. Society does not approve these results. Rather, society wants to see its laws enforced, not flouted. We are glad that science now offers a way to solve the age-old “privacy” dilemma. For the first time in history, we can now live in a completely crimeless society. Through modern genetic science, we will all know who the “bad people” are; and we will all know who “did it” if there is ever a doubt. We believe that great benefit outweighs any burden we shoulder by compromising “privacy.” The public has a right to know what lies in everyone’s DNA. We have a duty to protect our children. DNA testing will tell us who is a potential car thief, income tax faker or prescription drug peddler. This knowledge will keep us all safe from bad people. Science truly can lead to a better society, even if it forces us to abandon comfortable, outmoded customs like privacy. In short, we want security and knowledge, not insecurity and ignorance.

We have a great opportunity to decisively root out crime. Let us ensure that science and knowledge advance, no matter what ancient traditions say about it. Let us begin mandatory DNA screening for all crimes now. Our children depend on it. You want them to grow up in a safe society, don’t you? Of course you do.

INFERENCES, IMPLICATIONS & FACTS

AN ESSAY

In Alexander O’Neal’s R & B hit Fake (1987), we hear about a woman who constantly changes her appearance and tells lies. In sum, Mr. O’Neal “decides” that the woman is “fake” because she changes her name and story too often for his liking; plus she cuts her hair and nails in a different style every day. I always liked this song because it was “convincing.” The singer sets forth “facts” that lead the listener to conclude that the woman is lying. After studying evidence in law school, I appreciated the song even more because it demonstrates the correct way to understand the word “inference.” Many people confuse the noun “inference” and the verb “to infer” with the noun “implication” or the verb “to imply.” The two concepts are very different. “Fake” can help us sort out the differences.

In Fake, Alexander O’Neal sings: “Your hair was long/ But now it’s short/ You said: ‘I Got it cut’/ But I don’t see no hair on the floor.” You don’t need to be a lawyer to grasp Mr. O’Neal’s attack on his subject’s credibility. He tells us that he saw the woman with long hair. Later, he saw her with short hair. She claims that she got a haircut. But Mr. O’Neal sees “no hair on the floor;” in other words, he sees no evidence to substantiate the woman’s story. Mr. O’Neal uses his senses and observations to undermine the woman’s claim. He tells us what he saw, what he heard and he gives an evidentiary reason to doubt the story. It is convincing. And it perfectly illustrates how lawyers use “facts” and “sense” to construct truth in court. In essence, Mr. O’Neal asks us to infer that the woman did not get a haircut from the fact that he saw no “hair on the floor.” If you see a person’s hair on the floor, that means something or someone cut the hair off. One fact proceeds from the other. That is an inference.

To understand inferences, we must understand some underlying terms. First, we need to agree what constitutes a “fact.” We all think we know what “facts” are. Yet if you’ve spent any time studying law—or even watching court shows on television—you recognize that we constantly argue about facts. We never agree on what they are. From a basic perspective, many people believe that a “fact” merely refers to what “actually happened.” Throughout law school, many professors gave exactly that definition. But this definition did not placate me. “What actually happened?” What does that mean? To apply that definition, we must assume that a human being senses something through sight, hearing, touch or taste. He perceived something. Then he tells about what “happened.” It requires an individual perspective. When the individual recounts what “actually happened,” he does not provide his listeners with the same knowledge he has. Rather, he presents his memory, which is necessarily weaker than actual experience. After all, we are sensory creatures. Our emotions and our experiences flow from our firsthand perceptions. If we are “not there” to experience an event with our senses, hearing someone’s memory about it does not provide the same knowledge. It is “second-hand” and far “weaker” than true experience. In my view, it is insufficient to define a “fact” as “something that actually happened.” Facts encompass much, much more. After all, no one doubts that the Revolutionary War “actually happened.” But can anyone present his or her personal memory about it? No. Yet everyone believes that the Revolutionary War happened. Why do we believe things that no living person perceives or even remembers?

I have long struggled to define “facts.” No law professor ever provided a satisfactory answer to this question, so I undertook to answer it myself. Now, facts intertwine with human sense. They also intertwine with human belief. If we perceive things with our senses, we believe them. When I say “belief,” I mean that an individual forms a subjective impression that something is true. A person may believe in something that does not exist; subjectively, he holds an impression that it is true, even if he cannot perceive it. For example, a person believes in God. That means he has the subjective impression that God exists. He believes, even though he cannot see God. We can agree that it is a “fact” that this man believes in God. But we cannot agree that it is a “fact” that God exists.

Why the distinction? To grasp this point, let us attempt to define facts. In my view, a “fact” is any act, event or condition that is objectively verifiable and perceptible to the human senses. Under this definition, we can confidently say that “facts” include more than what “actually happened.” After all, can we say that a person’s “belief in God” “actually happened?” Not really. “Belief” is a “condition,” namely an individual’s subjective impression that something is true. Whether someone holds a belief is verifiable and we can perceive it when the person tells us what he believes. But we cannot perceive God with our senses. He is not “objectively verifiable.” His existence may be a “condition,” but it is not perceptible to us. We cannot ask God whether he exists, and we cannot hear him when he answers. To that extent, we cannot accept as a “fact” that God exists.

Yet there are many other things that we can accept as “facts.” As long as someone could reasonably have perceived an act, event or condition, we can believe it to be a fact. In this sense, belief and fact intersect. For example, if we hear from an accident victim that he was “thrown 20 feet from his car” after feeling a “violent impact from behind,” we can reasonably believe that another car rear-ended him at relatively high speed, even if the victim did not see the car. We even believe that the negligent driver must have been traveling very fast, even though we were not sitting next to the negligent driver to personally see the speedometer before the crash. We believe these “facts” even though we did not perceive them because we make inferences from other facts. An “inference” is a fact we did not perceive that naturally follows from a fact we did perceive. There is nothing intuitive or magical about inferences. They are simply facts we can believe after perceiving other facts. After all, we cannot perceive everything in the world. Our sight and hearing have a very limited range. Yet by perceiving some things, we can infer that other things “must have happened.” For example, if we see blood on the sidewalk, it is a “fact” that there is blood on the sidewalk. We can infer that blood fell onto the sidewalk from some external source. We did not perceive the blood falling. But it is still a “fact” that blood wound up the sidewalk. This is an inference. It is a fact that necessarily flows from a fact we directly perceive. If we see our friend with a black eye, we can infer that something—or someone—struck our friend in the face with some force. We cannot infer anything more from that single fact. To get the full story, we need to investigate further.

Implications present a different question. Unlike inferences, implications do not lead us infallibly to facts. Rather, implications involve our intuition, not our logic. An implication refers to the likely circumstances explaining a particular fact or facts. If we see our friend with a black eye, we can infer only that something or someone struck him in the face with some force. Yet we can draw on our common experience to speculate that our friend probably got into a fight. Most black eyes happen when someone punches another person in the face. The implication here is that our friend got in a fight. Yet that is not an inference. The fact that our friend got a black eye does not necessarily lead to the conclusion that he got in a fight. A branch could have fallen from a tree and hit him in the face. He may have stumbled into an iron bar protruding from a building. We simply do not know the cause. Black eyes invite us to speculate about the facts surrounding the trauma. They offer us numerous implications. Yet we can only make one fair inference: That something or someone struck our friend in the face with sufficient force to cause bruising. That is the only fact that we can deduce from the fact we perceive.

What does it mean to “imply” something? There is a subtle difference between the noun “implication” and the verb “to imply.” Generally, “imply” refers to authority and degree in power and belief. Smaller powers are “implied” in large powers. Smaller beliefs are “implied” in large beliefs. When we speak about “implication” in this context, we normally face some interpretative venture. For example, questions about “implied power” commonly arise in agency problems. If we delegate authority to an agent to “buy us a home in San Diego,” and he winds up spending money on a real estate broker for Southern California, did he have authority to do this? Of course—it was a smaller power implied in his “larger” power to buy a home in San Diego. To achieve the large goal, it is implied that the agent may take suitable, “smaller” actions intended to reach it. It is a question of degree and congruence. When a person has a sweeping mandate—or maintains a sweeping belief—he implies that he can do numerous, unnamed “smaller” things to fulfill his objectives. Similarly, if a person believes in capital punishment, he implies that he believes in imprisonment, too. For to believe in something more severe implies that a person also believes in something less severe in less severe cases.

Many people confuse “imply” and “infer.” For the most part, they substitute “imply” for “infer.” We hear “imply” more often than “infer,” so more people use it. For example, a person might say: “I implied from the dirt on your jacket that you were working.” In fact, the person meant to say: “I inferred from the dirt on your jacket that you were working.” That may not be a fair inference, but the speaker nonetheless attempts to conclude a fact he did not perceive (that the person was working) from a fact he perceives (the dirt on the person’s jacket). “Imply” has nothing to do with it. The “implication” behind dirt on a jacket may be that the person was at work. Work may be “implied” in a dirty jacket. Yet we do not “imply” when we attempt to conclude one fact from another. That is an inference.

So how does this all fit in with Fake? Alexander O’Neal understood how powerful inferences can be when evaluating truth. When he sings that he “doesn’t see any hair on the floor,” he asks us to make several inferences. It is a “fact” that Mr. O’Neal did not see hair on the floor. That is an “act, event or condition” that he perceived with his own eyes. First, he asks to infer that the woman’s claim that she “got her hair cut” is a lie. After all, if there is no evidence to suggest a haircut, then we cannot rightly believe that the woman got her hair cut. If she had gotten her hair cut, we would have perceived a “fact” that leads us to that conclusion, namely, “hair on the floor.” Common experience tells us that when we get our hair cut, our hair falls on the floor and we can see it. Even if we walk into a barbershop after a person gets their hair cut and we see their hair on the floor, we can infer that the person (who now has short hair) just got his hair cut. That is a fair inference. Here, however, Mr. O’Neal tells us that he saw no evidence to substantiate the woman’s claim. We can “infer” that her claim is untrue—her untruthfulness is an “act, event or condition” that naturally flows from the “fact” that there is no hair on the floor.

Lastly, Mr. O’Neal asks us to infer that the woman did not get her hair cut. This has nothing to do with her trustworthiness. It is a straightforward inference. If we spend time around a person and never see their hair fall to the floor, we can correctly infer that they did not get their hair cut, even if we were not there to perceive it. That fact “naturally flows” from the fact we perceive.

I mention all this because “facts,” “inferences” and “implications” are words that we typically use without conceptual clarity. Even lawyers do not properly use these words. It is worth making the effort, however, to tease out the subtle distinctions between these words because they help us construct “truth.” In this context, truth refers to “human perception.” We believe what we perceive, and if we are not “there” to perceive something, we believe what makes logical sense to our eyes and ears. Inferences make perfect logical sense. They allow us to believe “facts” without ever “being there” to perceive them. That is an extremely useful tool. When we precisely understand inferences, we can more fairly judge what we see and hear. It is difficult to sort out the truth in this world. When we approach it with some logical consistency, it makes our job significantly more bearable. In this narrow approach to truth, our senses provide all the answers.

GOOD, BAD OR JUST SICK : WHY WE PUNISH CHOICE

AN ESSAY

Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.

JUDICIAL OPINION FROM THE COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 08-9872 C

The United States of America, Petitioner-Appellant
v.
Willie Wilson, Respondent-Appellee.


Before COLDWATER, HERZLOS and LOVEJOY, Judges.

I. OVERVIEW

A. Coldwater, J.

In this case, the United States appeals from a post-trial finding that the jury’s verdict against Respondent Willie Wilson (hereinafter “Wilson”) was against the manifest weight of the evidence.

Following a 12-day jury trial, a jury constituted in the United States District Court for the Northern District of Georgia found Wilson guilty of Aggravated First Degree Murder. Acting sua sponte, the trial Judge, Hon. Charles F. Licht, reversed the jury’s verdict on the ground that: “No reasonable juror could have reasonably ignored compelling inculpatory statements made by an unavailable witnesses. Any reasonable juror would have evaluated these statements in such a manner as to cast reasonable doubt on the guilt of the accused. In this case, justice requires that the jury’s verdict be rejected.” The United States objected to the trial Judge’s ruling. The trial Judge overruled the objections. The United States timely appealed, arguing that the trial Judge had no authority to ignore the jury’s finding of fact without “evidence of wrongdoing in the jury deliberation process.” Counsel for Respondent Wilson urges us to sustain the trial Judge’s ruling on the rationale that “justice dictates the Judge’s action.” Wilson further points out that the jury was solely composed of white individuals, while Wilson is black.

II. FACTS

The record discloses the following facts. On August 21, 2006, Willie Wilson was at home in Atlanta. He lived in a self-described “ high-crime neighborhood” where drug deals were common. At approximately 11 PM, Wilson heard a “loud noise” in front of his house. Because his house had been burglarized several times in the past, he grabbed a 9mm pistol and put it in his waistband before walking outside. He went outside, where he saw six or seven youths struggling on the sidewalk about 50 feet away. He also said he saw a “flashy metal object” passing between them. About 10 seconds later, Wilson said he realized it was a pistol. Soon thereafter, one youth pointed the gun at another and fired. The group scattered in all directions, leaving the injured man behind. Wilson went over to the man, whose name was Tyrone Gibbons. Gibbons was bleeding profusely from the stomach and gasped for air. Wilson said he told Gibbons: “Everything is going to be all right; you just have to hang in there.” Over defense counsel’s objections, the jury also heard Wilson testify that Gibbons told him: “I never should have gotten involved with Rock. That (expletive) is a killer. I’m dying, man. Ain’t nothing going to stop that now.” While attempting to help Gibbons, Wilson got blood on his hands and clothing. At some point thereafter, Gibbons died.

Approximately four minutes later, four police cruisers arrived on the scene. Officers found Wilson perched over Gibbons’ bleeding body. One officer testified it appeared that Wilson was “looking for something” in the injured man’s jacket. Officers commanded Wilson to “step away from the body” and “put his hands above his head.” Wilson complied, but allegedly shouted: “It wasn’t me! Rock did it! I’m just trying to help this kid.” The officers placed Wilson under arrest. They found the pistol in his waistband. Later that evening, Wilson was charged with Aggravated First Degree murder.

Police made no further arrests in Wilson’s case. Wilson was the only suspect. Ballistics reports showed that a 9mm pistol bullet killed Gibbons. Investigators also determined that there was one bullet missing from Wilson’s ammunition clip. But investigators could not determine whether the pistol had been fired that night. Wilson said he had fired one bullet from the pistol at a gun club about a week before the incident. During interrogations, Wilson adamantly maintained his innocence. He told the detectives what Gibbons told him before he died. He also said that “Rock” was a notorious drug dealer who hustled in Wilson’s neighborhood, often with violence. The detectives said that Rock was not a suspect in Wilson’s case. The Deputy United States Attorney urged Wilson to plead guilty because, according to Wilson, he “had the goods to fry his ass.” Wilson refused to plead guilty.

Before his trial, Wilson received word from his appointed attorney that “Rock” had been arrested for narcotics distribution and racketeering in New York. His attorney reported that he had another client who had been cellmates with Rock in a New York jail. During a conversation with this client on an unrelated case, Wilson’s attorney heard that “Rock” joked about killing a youth named Gibbons in Atlanta with his “Glock,” and that no one could touch him because he paid off members of the Atlanta city government. In street language, a “Glock” refers to a 9mm pistol. “Rock” is currently on bail in New York awaiting trial, beyond the power of the United States District Court for the Northern District of Georgia to summon him to testify.

Six months later, a jury in the United States District Court for the Northern District of Georgia found Wilson guilty of Aggravated First Degree Murder. The jury said it believed beyond a reasonable doubt that the ballistics evidence and officers’ eyewitness accounts immediately after the shooting established that Wilson intentionally killed Gibbons “for the purpose of stealing drug proceeds.” Although counsel for the United States objected, the jury also heard Wilson’s story about Rock’s alleged confession in New York. The jury did not find Wilson’s story credible and returned a guilty verdict after only 10 minutes’ deliberation.

Acting sua sponte, trial Judge Charles F. Licht peremptorily reversed the jury’s finding. Noting that Wilson’s evidence, objectively viewed, “would weigh heavily upon the conscience of a reasonable juror,” Licht concluded that “it would offend notions of justice and right to convict a man about whose guilt for a capital crime there is clearly reasonable doubt.” Judge Licht observed that there was “nothing in the record to make a reasonable juror disbelieve Wilson’s testimony, and no just rule of law should preclude a reasonable juror from believing Rock’s inculpatory story.” In sum, Judge Licht wrote: “To find Wilson guilty of Aggravated First Degree Murder on this evidence would be to disserve the very foundations of justice that the law and the Constitution are intended to protect.”

The United States appealed, contending: “Judge Licht’s preposterous actions set a new standard for judicial lawlessness.”

III. ANALYSIS

Under long settled principles, a Federal Court will not disturb a jury’s factual conclusions unless its conclusions are “clearly erroneous.” Neither a trial judge on a post-trial motion, nor a Court of Appeals on direct appeal may ignore a jury’s factual conclusions if the jury’s conclusions are “plausible in light of the record in its entirety.” Anderson v. Bessemer, 470 U.S. 564, 573-574 (1985). This standard vindicates the common law’s respect for the jury as an institution. In our system, we trust everyday people to use their common sense, intelligence and perception to determine facts. If judges could merely cast aside their conclusions, juries would have no power at all. Juries exist to protect constitutional liberties from government authority. Our “clearly erroneous” standard of review exists to give juries the discretion they need to protect liberty.

In this case, it was entirely “plausible in light of the record in its entirety” for the jury to conclude that Wilson intentionally killed Gibbons with a purpose to steal drug proceeds. Several officers testified that they saw Wilson huddled over Gibbons’ body “looking for something.” The jury also heard that Wilson had a pistol that matched the caliber of the bullet that killed Gibbons. The fact that Wilson’s pistol had one bullet missing from its ammunition clip only strengthens the inference that that bullet killed Gibbons. The jury was entitled to disbelieve Wilson’s explanation that he “fired one bullet at a gun club” one week before the incident. It is not for a trial judge—or an Appeals Court—to criticize the jury’s common sense conclusions simply because the Court feels “something else could have happened.” The jury’s conclusion was “plausible.” That ends our factual inquiry. We do not dwell on “possibilities.” We examine whether the evidence “plausibly” supports a jury’s conclusion. That is all. What “actually happened” has no bearing on our legal analysis.

We hold further that Judge Licht committed legal error in admitting the “Rock” story as evidence. Generally speaking, Rock’s story constituted hearsay. It was a statement made out-of-court offered to prove that Wilson did not intentionally kill Gibbons. Federal Rule of Evidence 801(c). Hearsay is categorically inadmissible at trial under Federal Rule of Evidence 802, unless it meets the exceptions prescribed explicitly in Rules 803 or 804.

Judge Licht concluded that Rock’s story was admissible under Federal Rule 804(b)(3) as a “statement against interest.” We strongly disagree. Under Federal Rule of Evidence 804(b)(3), “statements against interest” made by “unavailable” declarants are admissible as exceptions to the hearsay rule. But admissibility under this exception is difficult to establish, especially for so-called “inculpatory statements offered to exculpate the accused,” such as Rock’s story. In pertinent part, Rule 804(b)(3) bars such statements unless “corroborating circumstances clearly indicate the trustworthiness of the statement (emphasis added).”

In this case, there is virtually nothing that corroborates Rock’s story. Wilson offers nothing but a third-hand report from his attorney that some felon in New York heard Rock confess to Gibbons’ murder. There is nothing objectively credible about this. In fact, if believed, it totally exonerates Wilson, so he has every incentive in the world to fabricate it. Wilson’s attorney swears in an affidavit that he heard about Rock’s story without any prompting from Wilson. This is irrelevant. Under Federal Rule of Evidence 804(b)(3) we do not examine whether the offered statement was “prompted” by a request from the accused; we simply look to see whether there are “circumstances that clearly indicate” the statement’s trustworthiness. Here, we find the Rock story utterly incredible and self-serving. Moreover, there is not a shred of objective evidence that even remotely suggests that the story is anything but blatant fabrication. It would be fantastic to suggest that “corroborating circumstances clearly indicate” that Rock’s story is credible. In that light, we hold that it was legal error for Judge Licht to admit the statement in the first place.

Our conclusions require us to remand this case to the District Court for the Northern District of Georgia with instructions to reinstate the jury’s verdict. Prior to disposing of this case, however, we must make several important observations concerning Judge Licht’s conduct at the trial. We agree with the United States’ argument that Judge Licht “set a new standard for judicial lawlessness” in this case. Judge Licht ignored his oath to defend the Constitution and the laws of the United States by invoking such nonsense as ‘notions of justice and right,’ ‘the very foundations of justice and law that the Constitution was intended to protect,’ and the ‘heavy weight of conscience’ upon a ‘reasonable juror.’

These ‘notions’ are not legal authority. Judges do not have a free hand to ignore juries simply because they think they know what is ‘just’ and ‘right.’ We follow written laws, not conscience. In this case, both established written precedent and the Federal Rules of Evidence required Judge Licht to bar hearsay testimony and to uphold the jury’s factual conclusions. Judges do not intuit. We do not seek justice. We seek only to apply written standards, no matter what we actually think about the evidence tendered. Conscience, justice and right have absolutely nothing to do with our legal analysis, and Judge Licht’s conduct in this case represents a dangerous break from acceptable judicial practice. Are judges free to ignore juries simply because they think the jury acts unjustly? Surely not. If a jury acts upon a “plausible view of the record,” judges have nothing more to say about it. It may bother our conscience. It may even insult our view of justice. But that does not entitle us to contradict the jury’s factual conclusions, especially when written standards clearly command us to respect them. In sum, we squarely reject Wilson’s argument that “Justice dictates Judge Licht’s action.” We respond that law dictates our judicial actions, not justice.

Judge Licht seems to think that he is a philosopher prince with the power to determine just results. Yet the judge is not a philosopher; the judge is a technician who applies written standards. We are a nation of written laws. It would gravely upset our entire system of justice if judges began pursuing “right” and “conscience” in every case. That is not our system, and we refuse to travel in that direction.

We strongly suggest that Congress take disciplinary action against Judge Licht for his gross disrespect for American law.

REVERSED AND REMANDED, with instructions to enter a GUILTY verdict for Aggravated First Degree Murder.

SEEING, BELIEVING, MISJUDGING AND TRUTH

Friedrich Nietzsche was my hero in college. When I began to mature intellectually, Nietzsche inspired me. He made me defiant. Granted, during my first encounters with his writings, I struggled to find quotes that matched my own rebellious sentiments. I wanted his words to fortify my own philosophy of rugged individualism. To a large extent, Nietzsche's works supported me.

But now I have different priorities. I am still a rugged individualist and I still detest group-oriented thinking, but now I approach texts for what they are, not for what they can gain me. Studying law taught me how to drain passion from my intellectual analysis. After reading spiritually barren arguments for over three years, I learned how to deconstruct language and grasp its implications without considering whether it would support a personal cause. Returning to Nietzsche nine years later, I see why I loved him. Now I think I love him even more. It is a joy to read forceful arguments again. And no one argues with as much passionate, iconoclastic force as Nietzsche.

Lately I have been re-reading Human, All-Too Human (1878). Nietzsche was in his middle 30s when he wrote this book, and its pages provide a blueprint for all his famous later works, including Thus Spoke Zarathustra (1884) and On the Genealogy of Morals (1887). Best of all, it showcases his concise, elegant style. Nietzsche makes his points in tiny aphorisms and mini-essays. It is possible to dig deeply into these small writings to find multiple layers of meaning. And while it may not take a long time to read an aphorism, you can spend all day thinking about what it means.

It is not coincidental that my own writing picks up on many Nietzschean themes. Nietzsche profoundly influenced me when I was young, and my own personality developed those influences as I experienced "real life." Consider this aphorism from Human, All-Too Human's chapter titled: "Assorted Opinions and Sayings:" "79. Twice Unjust - At times we support the truth by a double injustice, specifically: When we see and recount both sides of something that we were not able to see at the same time, in such a way that we either misrepresent or deny the other side in the delusion that what we see is actually the whole truth (my translation)."

Immediately I recognized that Nietzsche shared my views about "legal truth" and linguistic imprecision. In previous essays, I wrote that "empirical truth" depends on the human senses. Empiricists believe that "seeing is believing," and the "truth" must be "perceived by the senses." Yet Nietzsche's aphorism reveals a startling weakness in that view, because he intimates that "what we see" may not be the "whole truth." Nietzsche here makes us consider the weakness inherent in our own perceptions, especially when they involve "two sides" to a particular event. Whenever we try to recount the event from a different perspective, we "misrepresent" or "deny" details implicit in the other side.

This is exactly what happens in a jury trial. No one really knows what "happened" in an event without "actually being there" to perceive it. Language is the only way to get an understanding about what happened, and language is at best an imperfect tool to understand events. Lawyers attempt to prove their cases by presenting testimony from witnesses, who likely perceived the event in profoundly different ways. Whenever a witness describes his "version" of what happened, he "denies" or "misrepresents" the other side of the story. This is not the witness' fault. According to Nietzsche, this is precisely the danger in thinking that "seeing is believing." Every witness is "deluded" in the sense that he believes what he saw. But perhaps there were details that evaded his perception. Perhaps his own opinions, prejudices and preconceived notions colored his memory. Thus, he cannot possibly tell the "whole truth," because his own perception and memory are imperfect.

Nietzsche saw the "injustice" implicit in any philosophy that ties truth to the senses. After all, sense depends on an individual's ability to see, hear, smell, touch or taste something. No two individuals will sense something in precisely the same way, and no two individuals will use language in precisely the same way to convey their experiences. This segues into Nietzsche's core argument that "truth" is individual; it depends on perspective. Thus, it is presumptuous to believe that there is a "whole truth" accessible to everyone. Nonetheless, our senses seem to tell us the truth. Our senses tempt us into thinking we know the truth. That is why Nietzsche called it a "delusion" that "what we see" means the "whole truth." In other words, our senses give us our own truth. But that does not entitle us to say that our own perceptions equal "the whole truth" for everyone else.

How does the world function if there is no "whole truth?" How do we know whether we are doing right if we can never know what is true? The answer is simple: We create fictions. Fictions dominate life in society. In order to escape the relativism inherent in our own perceptions, we agree on matters for mutual convenience. Rather than descending into a circular debate about "what is true" from our own perspectives, we simply say: "The light was red and everyone agrees it was red." Society depends on these "stipulated truths" in order to function. Without them, no individual could ever "rightly" impose his views on another. This process is called "objectivism." By "objectifying" perception, we can say whether an event happened or not, even if individual perception is faulty. We measure the event by an external standard, not an individual one. This allows us to say whether something is right, wrong, good or bad according to the standard. Yet it is easy to mistake an objective standard for the "truth." Objectivism is simply a fiction to make life more manageable. It does not give us "truth." If anything, such standards reflect power, for someone had to set the standard under which everyone else operates.

At the end of the day, we are all individuals. We have only our own senses--and beliefs--to provide truth. But we defer to objective standards every day in order to function in society. Those objective standards, while alluring, do not provide truth. They are mere administrative conveniences intended to ease the "delusion" that derives from individual perception, memory and communication. The danger lies in putting our full trust in objective standards rather than ourselves. When we do that, we deny our own perspectives and submit to fictions imposed by the powerful; and there are few powers greater than the power to impose objective standards on something as fluid and subjective as human life.