Saturday, June 22, 2013

The Truth, The Whole Truth, and Whatever Those Women Think Is True

So the jurors are all of what has occasionally been referred to as the "female persuasion." This has, somehow,  become a newsworthy piece of information.  Can six women be fair?  Are they tough enough to convict?  Do they have the cojones?*  Are they too weak-kneed, too faint-heartedly feminine to acquit even though a man's gotta do what a man's gotta do?

And who are these six on whom the fate of the western world depends?  These six women about whom we (or at least I) know essentially nothing but odd factoids.
  • 2 rescue animals, though not professionally (is there such a profession?)
  • 2 have been victims of "non-violent" crimes
  • 2 are married to lawyers.
  • 1 has been arrested and had her case "disposed of" (whatever that might mean).
  • 1 looks Hispanic maybe.
  • 0 appear to be African-American.
Their job will be to sift through the evidence they'll hear over the course of the next month or two, decide who's telling the truth about which things so they can agree about what actually happened that night (the law doesn't require that they be right, just that they agree) and how those agreed "facts" fit within the framework of the likely impenetrable instructions on the law the judge will give them.

Will they be fair?  Can they be?  Can 6 non-blacks fairly sort the evidence (whatever it might be) of an incident which has become racially charged whether or not it was racially motivated?  Can soft-hearted animal rescuers fairly evaluate the circumstances and motivation of human killing?  Do those husband/lawyers screw everything up?

When they're done, and assuming that they eventually do agree about what they must, George Zimmerman will have been found guilty of something or not guilty of anything.  And neither you nor I nor anyone else (including those 6 women) will know whether those factoids had anything to do with whether they were or were not fair in how they listened and discussed and evaluated and decided.

Nor will we know whether they got it right (whatever exactly that means).

I still won't know what happened that night.  Nor will you.  Nor, and this is central, will they.

That's not exactly true, of course.  I know, and unless you've been living under a rock so do you, and surely they do or will, that Zimmerman shot Trayvon Martin and that Martin died from the gunshot.  Almost everything else is, and will ultimately remain, a subject of conjecture and guesswork.

Many years ago, my sister was called for jury duty and made it into the box to be questioned.  It was, as I understand it, a civil case involving something falling off a building or a scaffolding or some such and perhaps injuring a passerby.  Several years had passed since then.  Finally the trial.  Justice.  Truth will out.  All that good stuff.

My sister raised her hand.  
I don't see how it's possible to know what happened after all this time just because these people will come in here and tell their stories.  It's just not possible to know who's telling the truth and who's not and who's just mistaken and how memory might have ebbed over the years.
She was hauled into chambers.  She was sent home.  She was also, of course, right.

See, it matters who those 12 6 jurors are because they have to decide.  But it's impossible for them to know.  Which is why the lawyers work so hard to get jurors they think might be inclined to accept their version of what the evidence shows or doesn't show.

And why I've spent so much time over the years explaining to my client that
  • No DNA doesn't mean the jury has to acquit.
  • No eyewitness doesn't mean the jury has to acquit.
  • Haven't found the gun doesn't mean the jury has to acquit.
  • Your brother or mama or baby mama or the fucking Pope coming into the courtroom and testifying that you couldn't have done it because you were with him/her at the time doesn't mean the jury has to acquit.  (The Pope would be great, though, if he'd come to court and testify to the right things.  Baby mama not so much.)
  • You getting on the stand and saying you didn't do it sure as hell doesn't mean the jury has to acquit.
  • And the fact that you're absofuckinglutely innocent absofuckinglutely doesn't mean that the jury has to acquit.
Because no matter how much they talk about trials as a search for truth, they're not.  And Beyond A Reasonable Doubt means, in the real world, whatever the jury believes enough to satisfy itself.  Because trials, as I've said before, are about proof not truth.  And proof, as I've said before, is whatever convinces those folks in the jury box.  Or what doesn't.

It's not random.  Most jurors try hard to get it right, and most juries probably come pretty close most of the time.  But innocent people are convicted.  Guilty people go free (or are convicted of something more or less than what they actually did).  

And sometimes . . . .  Well, they're planning to take another stab at trying to get 12 jurors out in Phoenix to agree about whether Jody Arias should be killed in prison or just rot away there until she dies.

But six women in Florida?

What will Nancy Grace say?

*I actually have the transcript snippet of a female criminal defense lawyer explaining to a judge that she "wouldn't have the balls" to make the argument the prosecutor was making.


  1. Nancy 'Ms. Bitch Face of 1954' Grace will say what she always says, and her ratings will (she hopes) move in the right direction.

    Trayvon Martin attacked Zimmerman and got what he had coming to him. Zimmerman is guilty of self-defense, no more nor less, and the entire business should be in a Florida landfill right now. It isn't, thanks to commercial media and the efforts of the Ayatollah Obama.

  2. A lot of times you can't know. But sometimes you can, because the evidence tells you. I mean "know" in the sense that most people would use it, without reference to the deeper questions of epistemology.

    I had to put in that disclaimer because I saw you quoting Kant and Kierkegaard - in one comment! And the 'teleological suspension of the ethical', if I understand it correctly, does not pertain so much to competing ethical values such as lying to save a life, as it does to the complete suspension of ethical considerations, such as when God tells you to kill your only son Isaac, whom thou lovest, which would ordinarily be a heinous act but when God tells you to do it and then you do, you're a hero and the father of faith.

    But then God won't actually make you do it. He'll send some angel or other to stay your hand at the last minute. Up to that point, of course, it's pretty intense.

    In any case, skepticism is fine, but dogmatic skepticism is as problematic as dogmatic just-about-anything-else.

  3. When god tells you to kill your kid, if you believe that doing what god says is a moral imperative, then whether to obey that moral imperative or instead the moral imperative of "Don't kill your kid" is exactly a moral dilemma. (And of course, the god who would so instruct and then retract the instruction - in order ostensibly to test the willingness of the instructee to do that god's being (or less ostensibly for a good giggle) - is a cruel, mean spirited, downright evil god, unworthy of adoration by any sane person.

    As for skepticism, it's always appropriate to have. That doesn't mean we can't act. It just means that the passage I've quoted several times from Irving Younger quoting Cromwell (you can find it via the search box) is exactly right.

  4. Jeff, it's hard for me to believe that you could have read Fear & Trembling and yet still think that the Abraham and Isaac story is about a cruel god.

    It would be far more accurate, in my opinion, to say that it is a story about love. It's a love story.

    Anyway, I favor Kierkegaard over Kant. Much, much better sense of humor.

    1. I don't doubt that Kierkegaard saw it that way. But he's wrong.

      The Old Testament god is a venal, vicious, mean spirited, cruel egomaniacal monster who will punish unto the 40th generation them who don't fall all over themselves in adoration.

      The New Testament version is, I suppose, better if you look to the beatitudes. Not a whit better if you think Paul was setting out his rules.

      I love Paradise Lost and the Commedia and The Faerie Queene and even Piers Plowman and Pilgrim's Progress. And the KJV is inspired writing. But the god they all worship - I think not.

    2. Jeff, far be it from me to preach. I can't help wondering why, though, in a world in which nothing is certain or true or false or right or wrong there's an exception for Kierkegaard, of all people.

      Perhaps that can be perceived as glib, so in sincerity I'll add that I do find it interesting that someone as nuanced and intelligent and well read and even profound as you obviously are has such a blunt and uni-dimensional opinion in this one area, not that that makes you wrong. It seems to me you're missing a few things but of course I don't presume to be more qualified to hold that opinion than you would be. You like Dante, after all.

      Hope you're enjoying your new job.

    3. Yes, in absolute terms quantum uncertainty means that there is no absolute truth or falsity and insofar as it does exist we can never know it. In everyday terms, I think that's so also. As a practical matter, of course, we live as if we can tell them apart. The only alternative is madness. But extreme acts in a world of ultimate ambiguity are inherently and always dangerous. (I've quoted Irving Younger's quotation and response to Cromwell on this point several times here and in at least a couple of different contexts.)

      But morals are different. There may be no absolute truth (or absolutely discoverable truth which amounts to the same thing). I have no doubt or difficulty with the idea of moral absolutes. (We can disagree about them, of course, just as we can about whether the light was red or green, but that doesn't mean they don't exist - just that one or both of us errs in the determination.)

      The story of God first ordering and then rescinding the command that Abraham kill his son is - whatever it says about Abraham - a story of relentlessly egomaniacal deity whose treatment of Abraham is cruel beyond measure. And who thinks well of itself for it. That Abraham, faced with a morally indefensible order (show me that you love me by destroying the blameless thing you love most) does not refuse (My love may be unqualified but I am unwilling to demonstrate it by doing evil, and by the way God, if you worthy of my love rather than the mere recipient of it, you'd never make such a command) speaks mighty poorly of the Patriarch.

      That Kierkegaard's interpretation of all this is different than mine is neither here nor there.

      In Lionel Trilling's wonderful short story "Of This Time,Of That Place," a perhaps insane student continually challenges his instructor in a first year college English class. After being called out for a grotesquely and unquestionably false interpretation of The Rime of the Ancient Mariner (a "warm and honey-sweet land of charming dreams [where] we can relax and enjoy ourselves"), the student "pounced, craftily, suavely. 'Do you mean, Doctor Hosed, that there aren't two opinions possible?'" To which How responds after a moment, "Yes, many opinions are possible, but not this one."