Sunday, December 9, 2012

The Problem of Evil - Part I

In 1970, Jeffrey MacDonald was 26 years old, a physician and a green beret, stationed at Fort Bragg in North Carolina when his wife and young children were viciously murdered one night.  He was injured.  He was charged with the killings, but after a lengthy Article 32 hearing the military charges were dismissed.  There was no court martial.

He was later charged in federal court of the murders, tried in 1979, and sentenced to life in prison.  The Supreme Court affirmed his conviction in 1982.  He remain in prison to this day, insisting on his innocence and pursuing one post-conviction proceeding after another.

His case has spawned at least four books, a television miniseries, and websites galore.

He did it or he did not. 

At Crime and Consequences (where the only consequences they can find to crime are that criminals don't get treated harshly enough) Bill Otis wrote about MacDonald (link removed).

I got a feeling for criminal law as a result of that case.  Mike Moore [who drafted the government's brief] was a wonderfully fair-minded, bright and balanced man.  He would later become Solicitor General of Tennessee, where he served 17 years until his untimely death two years ago.  The SCOTUS argument was held on a cold day in December, but when Mike came back from it, he was sweating profusely  --  through his suit  -- and seemed to be struggling for breath.  He was a big guy, an athlete, and I was alarmed.  I asked if he was OK. His answer has stayed with me ever since.

He said he had been seated next to MacDonald, and had never before been in the presence of pure evil.
Otis accepts that.
Even for those of us used to debating the death penalty, the MacDonald murders stand out for their violent and grotesque character.
I could probably match Otis case for case with the grotesquerie and gruesomeness of case I know about or have worked on, but that's really beside the point.  Indeed, the point is that "pure evil" thing.  Which is what brings Otis to his question and, in my typical roundabout way, me to the point of this post inspired by Joachim Kuebler's question (how might one respond) on a listserv to which I belong.

First the question.
I wonder if our adversaries ever take the time to come to terms with what they are really defending.
Now the point of the post: What are we "really defending"? 

I suppose everyone has a different answer. And different cases draw different answers, too.  Here are a few that some folks might offer at various times:

  • The sanctity of life.
  • The moral/ethical/constitutional requirement of fundamental fairness.
  • The incompetence of humans to make accurate decisions about just deserts, if there even is such a thing.
  • The basic wrongheadedness of allowing a corrupt system to kill.
There are many others that folks would give.  Some lawyerly, some theological, some philosophical, some political, some practical, some -- enough, you get the point.

None of those, of course, would address Bill's real question, a particularly nasty variant of the Cocktail Party Question.
How can you defend evil? 
Of course, you can't.  Evil is bad.  There's no way to stand up and advocate for evil.
Three cheers for evil!
Let's hear it for evil! 
We need more evil!
Nope.  Can't do it.  Won't even try.*

But there's this.

What if Mike Moore was wrong?  It's cool and all to be able to recognize pure evil when you sit next to it in a courtroom, but who's to judge?  Fair-minded, bright, balanced?  Sure, I'll give Otis his general perceptions of Moore's character.  Infallible in his judgment?  Never wrong?  Just not wrong this time?  Sorry.  I mean, maybe. (Not about infallible, that's just wrong.  But this time?  I guess it's possible that there are some folks with not a shred of anything that isn't evil to them.  It's not possible that Jeffrey MacDonald is one of them.

How do I know?  He's saved lives as an emergency room physician.  

But of course that's a quibble.  Moore's real point was that MacDonald was a monster who hid it. He hid it by all those years of being a really good person who did really good things.  But he also did a monstrous thing which makes him an irredeemable monster who should be destroyed.  We are all to be measured by the worst thing we've done.  There can be no redemption - at least not in this world.

Everyone who does something evil is evil and must be eradicated.  And those who are probably guilty or are found guilty by something that passes for legal process did in fact do the evil deed.  

The claim is primal.  It's not an argument; it's a religious doctrine.  Believe it or don't.

The rebuttal is that we don't.  That it's a monstrous doctrine which condemns everyone.  The reply is that we needn't succumb.  Original sin need not be repeated.

And none of that advances everything, because faith is, well, faith.

Except that there's this nagging problem even for the faithful haters.  

What if the jury was wrong? What if, all these years, MacDonald's been telling something like the truth?  What if he didn't kill his wife and child?  

Forget likelihood.  Is it a possibility?

For Moore, the Javert to MacDonald's Jean Valjean (unless he's Sweeney Todd), there's no chance.  He cannot be wrong.  Maybe he is, maybe not.  At this remove, only MacDonald knows, and perhaps not even he.

And if he did? What then?

Exact the harshest possible judgment?  Because he is the worst of what he's done?  Or exact less than we might?  Because he's better than his worst?  Who am I to say?  And who Mike Moore or Bill Otis?

I don't know. I don't pretend to know. And I don't fool myself into believing I know. Condemnation requires a certainty and accuracy beyond human ken.

Irving Younger wrote
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.  
Therein is my faith.  And a piece (but only a piece) of my answer.

Yes, I know perfectly well what I'm defending.  

*Nor did Milton in Paradise Lost despite William Blake's observation in a note to  The Marriage of Heaven and Hell that
The reason Milton wrote in fetters when he wrote of Angels & God, and at liberty when of Devils & Hell, is because he was a true Poet and of the Devil's party without knowing it!
Blake didn't exactly mean that, and, in any event, was speaking of the Devil as a literary creation, as a character and an argument against power rather than as theological construct.


  1. Did you see Gene Weingaryen's piece in the Washington Post pointing out the flaws in Erol Morris's book? He also revealed that the deceased Marshall's affidavit, which was supposed to establish MacDonald's pros-misconduct claim, actually appeared to have been a lie that the disgruntled marshal and MacDonald's defense team carefully planned for when they thought the relevant records would be destroyed. Turns out, the records were still around and exposed the claim as false. Interesting stuff.

  2. As it happens, I'm reading Morris's book now (expect a review one of these days). And yes, I saw the article in the Post.

    Morris concedes that he can't prove MacDonald innocent. For some, that's enough to seal guilt. I don't think it even addresses the question. Whether he's ultimately right in his judgment that MacDonald is factually innocent even if he's wrong or even dishonest in the details of his argument raises a different set of questions than those I'm addressing here.

  3. The premise that human beings are fallible is incontestable. The conclusion that we can't ever know if Defendant X did it is absurd. Every practicioner knows that, in the great majority of cases, factual guilt isn't in doubt and isn't even contested.

    Bill Otis

    1. I started to do a reply. Instead, I wrote a new post.