What is More Important to You, the System or the Outcome of a Specific Case?

 

© Charles Steele 2020

I suppose it was too much to hope that “Go Set a Watchman” would be as powerful a story as its sibling. And I knew that it was too much to expect that the wait would have anywhere near the hype and frenzy of the last Harry Potter book, but I can at least hope that it will drive people to reread, or read “To Kill a Mocking Bird.”

I have been thinking about TKM for a long while now; frankly, ever since the trial of George Zimmerman. (I would direct anyone who doesn’t see the connection to read the book; or at least see the movie.) I had been sitting in a class with forensic students who knew only what they had seen on TV and the internet, and I listen to them proclaim that they knew what “really” happened. When the media hype surrounding the death of Michael Brown came, the same thing happened. Based on media hype and internet snippets people proclaimed the officer guilty because “they know the police are abusers.”

It’s easy to see TKM as a story about racism. But realize that that is just the prejudice involved. The attitude of white people in TKM toward the defendant is no different than the attitude of the public toward the officer in the Michael Brown case.

“Ahh,” I was told. “But in the Michael Brown case we know an innocent boy was shot down by an officer because he was black. So, it’s like TKM because a black man was victimized.”

But the person who told me this had not read the grand jury transcript. They didn’t care what the “legal” facts were. They had already had a victim they sympathized with and chose to believe in, in advance of the facts. And they were so sure of this belief that they wanted to do away with the grand jury verdict. Set aside the rule of law in favor of popularly held belief of what the facts really were. Their heart may be in the right place, but this is mob rule. And that is what To Kill a Mockingbird is about.

Do you think that Atticus Finch wasn’t as racist as the rest of the town? Do you think that he empathized with the defendant and fought for him out of a personal bond? For a lot of reasons, I don’t. What I see is that Finch was fighting for the system. He put himself between the mob and the defendant, at great personal peril, because justice requires a just system. He was fighting vs. mob rule as surely as Aaron Van Langevelde did when he stood against political pressure from his fellow state Republicans and the followers of the sitting president. 

Mob rule is nothing new, the term comes from “mobile vulgus” meaning “the fickle crowd.” And fickle is the important and often overlooked part of the concept. The mob always thinks it’s right. It really doesn’t matter why it does, by nature of the mob mentality, certainty feeds certainty. Beliefs become facts. It is hard to stand against the mob, especially when you too want what they want. It’s hard to really embrace the idea that good ends can’t come from bad means. Siding with the mob is easier.

Back to Michael Brown, when I asked how the ideation of removing the courts in favor of public opinion wasn’t mob rule I was answered with “Because we’re right. We heard the statement of the witnesses” – to the press mind you not the court, no oaths were sworn. In other cases around the country where we have video, the fervor is even stronger. – “we saw the images on the internet and ‘a picture is worth a thousand words.’”

We want to believe that mobs are made up of evil people who hate for no good reason. The truth is sadly the opposite. Most mob want to do good. They believe their cause is just. And if the action that needs to be undertaken is hard to stomach, then they take strength from the group and cross the murder line - meaning choose to do something normally morally objectionable because it needs to be done.

Most people don’t want to think they are evil or even that they do evil. They will therefore convince themselves that anything they have done was good, or at least not bad. So, when people cross the murder line they rarely come back. To do so would require them to confront at least the willingness to do a bad thing and they were only trying to do good.

Think back to when it came out that the US was torturing suspects at Guantanamo. People were polarized. If you said to those who supported torture that it was a violation of our constitution you were dismissed by millions of people as not able to understand and told that our founding fathers didn’t know the challenges we face. “We have to. ‘Desperate times demand desperate actions.’”

Regardless of your feelings on torcher, I think most people agree that there are times when we as a society have to be hard and do things that we think are bad or even inhuman. I am not going to open the worm can on capital punishment; but what about quarantining the sick. People who, sometimes dyeing, need emotional support are cut off from human contact for the safety of the living.

I used to think that this was an easy, logical decision. Cruel and necessary. I think that very few people would say that it’s wrong to quarantine the sick. And yet, we are now in the exactly that situation with Covid-19 and it has become a major political issue of personal freedom vs. societal good.

You cannot deny that shelter in place orders do curtail civil liberties. It is also true that it sets a president for those liberties to be curtailed for the general good in the future. So, we are deciding to do a bad thing, something that flies in the face of our whole ideology of personal freedom. And we, most of us anyway, are agreeing that it is a good thing to do. But not all courts agree.

I would contend that the courts are making the right call, from a constitutional perspective. But this is at odds with public health concerns, possibly anyway. So, do we suspend the constitutional protections when this is not the only option? If so, where do we draw the line next time? I would rather people not gather in large groups. But, am I willing to suspend right and freedoms to force the issue? I don't know and society is split. 

So back to torture, when the Senate report came out, most of the people I talked to who were in favor of torture then said that the report is wrong. For them to say otherwise would force them to admit that they were a willing to be party to inhuman behavior for no good reason. Those who opposed torcher said that the report must be true and dismiss claims that it was written for political capital.

Most of us will cling to our beliefs because the issue is so polarized and whoever was wrong was very wrong. There is no middle ground. Either you wanted people tortured for no good reasons or you valued the lives of terrorists over that of society. Either way you’re over the murder line.

So, if you accept that people cling to beliefs once they cross the murder line let’s think about what drives them across it. As I said above, all mobs think they are right. Fortunately, our legal system requires facts. This is our protection. Because without them we cannot know if the other guy is right. Or more accurately, we can “know” but we could be wrong. Certitude is a conclusion. Being right is a conclusion. Neither of these are facts, they are what facts allow us to achieve. So, what are the facts leading the mob?

Last time I went on at length about what people accept as corroborative evidence. To that in the internet age we add pictures. “Use a picture. It's worth a thousand words,” is a quote credited to Arthur Brisbane. But he wasn’t talking about the truth; he was talking about publicity and advertising, about manipulating people’s beliefs and desires. Images are effective, this does not make them true. The truth requires more detail. But he is right, a picture can emote. Picture have always been and will always be used to stir emotion. Emotion is also not fact.

But as I said in my last post, people treat accusations as facts. They treat corroborative evidence as factual. To this I add that they will accept emotionally triggering images and recordings as overestimated “facts.” And this further exacerbates the situation.

Before we can reach the proper conclusion, we need to be a country that understands what is and is not confirmatory evidence. We need to be a country that will hold to our decisions until we can legitimately come to one and only one reasonable conclusion. Our mechanism for this is our laws, the courts – not the press and certainly not social media.

Consider the farcical "hearing" in PA this past week. They proudly proclaimed "evidence" that they dared not share in court. We should, we must seriously discount testimony that a many is not willing to swear to and be held accountable for. rhetoric is not testimony. Accusations are not evidence. 

Let’s go back to Salamon and Moyses. (See my last post) With no evidence to support the charges, public sentiment was still enough to drag them before an alternate court in the form of the Inquisition. Charges of heresy were investigated through torcher and confessions obtained could result in execution.

Fortunately for them the case was heard by a trained jurist, a Franciscan named, Johannes de Pogiali. He called the witnesses before him and examined them. In the end he did not find that the accusations against Salamon and Moyses were proven. In his justification he concluded that "it was better to leave a crime unpunished than to condemn an innocent person." This has become a foundation pillar of our legal system. One that we seem to be all too willing to knock out.

Now here I am going to switch stories. In 1957 a Reginald Rose reworked a teleplay he had written into the movie “12 Angry Men.” It is said that this is a movie about consensus building among strangers with different backgrounds. And indeed, no names are exchanged until two jurors are leaving the courthouse. They introduce themselves then part.

But as with many great stories there is more depth. The movie does indeed focus on consensus building. But it is in the backdrop of the principal of reasonable doubt. A murder is presented. The way the story is told, in all likelihood the defendant did commit the murder. At least at no point does the movie try to convince us that he did not.

What the movie does try to show is that even when people are certain, certainty is not a fact. Reasonable doubt has to be assumed when there are no reliable facts present. But breaking through people’s barrier of certainty is a difficult and often emotional project. Again, people cross the murder line.

In this movie, most members of the jury reach the most likely conclusion that will send the defendant – possibly justly – to his death. I don’t think any of them are portrayed as thinking the defendant is innocent. But, the evidence is not reliable. So, do you go with your gut and make the most likely choice, or follow the facts and say that a reasonable man must not have a reasonable doubt?

Too many people are willing to go with their gut. But realize that when the reasonable doubt is removed and we are back to general consensus without reliable facts, we are back to the mob. If you are with the mob you tend to think this is good, you are getting what you want and what you believe is just. But the mobile vulgus is by name and definition fickle. The crowd will not always agree with you or what is anyone’s best interest not even its own members.

And this all wraps back to the place we are here today. A fickle mob made up of millions of American citizens wants to set aside the rule of law because they don’t agree with the legal outcome. They are not evil. They are not intent of doing evil. They are trying to do what they think is right and that scares the hell out of me.

We are in a fight for the core of system that keeps us free. People protesting police brutality are encouraged to loot because they deserve it for reparations. People protecting their businesses are told that if they are close to a riot; they should be allowed to use lethal force against peaceful people they deem to be interfering with their business. People supporting a political candidate are being told that votes should be ignored, and the winner just appointed.

The fact that so many people are willing to destroy the system for the short-term gain of a particular outcome in one specific moment is truly a terrifying reality. So, let me ask you the question I ask my students every year. What is more important to you, the system or the outcome of a specific case? The way the masses answer this question will decided the fate of our nation.