During law school, I discovered a principle I call, When It Matters Most, It Matters Least.
An example in a non-legal context: let's say you have a friend or spouse with whom you have a policy of "no secrets." The problem is, you did this one thing once, that if you told them, it would destroy the relationship, so you make the determination to keep that one thing secret. That may be a perfectly valid conclusion, but it completely undermines your policy of "no secrets" so that it's more of a policy of "no secrets except for the things you'd most want to know." When it matters most, it matters least.
In the legal area, there are three whoppers.
Whopper 1: The process of asking questions of potential jurors to determine their suitability to serve on a jury for a particular trial is called "voir dire" (generally pronounced among non-French lawyers and judges to rhyme with "more tire"). According to Supreme Court jurisprudence on the matter, in a normal trial, the lawyers are forbidden from asking the potential jurors about their willingness to impose a particular sentence. The reasoning is that it taints the juror's deliberation because it gets the juror to start thinking of the defendant as guilty.
Except that rule is completely suspended in death penalty cases. In death penalty cases, jurors are required to be specifically asked whether, should they find the defendant guilty, they will be willing to follow the law and impose the death penalty. It's called "death qualifying" a jury. The reasoning behind this gigantic exception is that, because the law allows the imposition of the death penalty for certain crimes, jurors shouldn't allow their personal objections to the death penalty to keep them from frying someone. Of course, the courts haven't explained why, if they're worried so much about planting a seed in the jurors' thinking in normal cases that they preclude questions about punishment during voir dire, they don't seem troubled by it when the stakes are even higher in the capital punishment context. When it matters most, it matters least.
Whopper 2: In a normal age discrimination case, you're required to prove the employer intended to commit age discrimination. The problem is, you can almost never find the smoking gun statement which proves the employer's intent to fire someone because he or she is old. Instead, parties alleging age discrimination are allowed to establish intent based on a pattern of discrimination. That is, if you can prove that your company habitually fires people the day before they turn 65, that's sufficient to establish intent.
Okay, in a landmark Supreme Court decision called McClesky v. Kemp, the Court was presented with some pretty strong evidence that there is a racial bias in the imposition of the death penalty. Specifically, a fairly rigorous scientific study determined that, while the race of the defendant doesn't have a huge impact on whether the defendant gets the death penalty, the race of the victim does. That is, people who are black are slightly more likely than people who are white, all other things being equal, to get the death penalty, but people who kill white people are far more likely than people who kill black people to get the death people. And if you're black and you kill a white person, forget about it.
But the Supreme Court ruled that, essentially, this discrimination is simply too pervasive to address or remedy. If they were to recognize the overwhelming racial bias so endemic to the criminal justice system, the entire house of cards would collapse and cease to function. So, like a teenager with her hands over her ears yelling, "La, la, la, I can't hear you!", the Supreme Court ruled that it would ignore the study regarding racial bias in in the judicial system and not change a thing. When it matters most, it matters least.
Whopper 3: One of the mainstays of almost any criminal prosecution is eyewitness testimony. If a witness can say, "Yes, I saw John Doe strangle his wife," a jury will convict. I was in law school during the time of the O.J. Simpson murder trial. My professor in Evidence, who had been involved in a number of murder trials, explained the verdict to his confused classroom by saying that murder cases that lack an eyewitness to the murder, as the Simpson case lacked, almost never result in convictions, no matter how strong the other evidence.
However, there is a scientific study which raises significant questions about the veracity of eyewitness testimony. The study doesn't say people get things wrong; its conclusion is more subtle. What the study says is that there is no correlation between the accuracy of the eyewitness testimony and the certainty with which the witness proffers the testimony. In other words, a witness who says, "I think I saw John Doe strangle his wife, but I could be wrong," is just as likely to be accurate as a witness who says, "I am 100% certain I saw John Doe strangle his wife."
Which helps explain the testimony of rape victims. It is not uncommon for rape victims to testify, "I am 100% certain it was John Doe, who is now sitting at that table, who raped me. The whole time he was raping me, I was staring at his face so I could pick him out of a line-up later." But, as we now know from all the rape convictions which have been thrown out based on newly-admitted DNA testing, even some cases with testimony as unequivocal as what I quoted, sometimes sympathetic, unequivocal rape victims identify the wrong perpetrator. Now, this would be mitigated somewhat if a defense attorney could introduce into evidence the study I referred to regarding the relative accuracy of eyewitness testimony -- it would help juries give the testimony the appropriate weight.
But no. Again, courts have ruled that this study is inadmissible in court. (Lawyers and judges love scientific studies, except the ones which apply to them and their legal system.) The courts stated that eyewitness testimony is a bedrock of the legal system, and allowing the introduction of a scientific study which would undermine its role would undermine the entire legal system so -- again with the hands-over-the-ears "La, la, la, I can't hear you!" -- the study cannot be introduced at trial or its contents argued before a jury. When it matters most, it matters least.
But, as they say, the truth will out.
As I alluded to above, the steady parade continues of defendants being released who were wrongly convicted based on eyewitness testimony (and, let's not overlook, shoddy police work), and have now been freed based on DNA evidence. The most recent member of the parade is Luis Diaz, released August 3 in Miami, Florida, after serving 26 years for multiple rape convictions, now all overturned.
Now, the release of these wrongly convicted men may call for a day for rejoicing, but it hardly returns things to the status quo ante, nor does it relieve us, as a society, from being responsible for the legal system that wrongly imprisoned these men for decades. The importance of releasing these men and allowing many still in prison access to the DNA testing which could prove their innocence cannot be overstated, but it still doesn't give these men their lives back. Nothing can. The civil rights mantra is true, "Justice delayed is justice denied."
On the other hand, as much as the cynic is tempted to belittle those who would find comfort in delayed justice, there is absolutely no denying the unmitigated joy on the faces of these men as they are released from prison, and when I see those pictures, my cynicism just melts away. Perhaps no one more than they understands that, as John Claypool, Episcopalian priest and writer, has said on many occasions, "Life is gift, and birth is windfall," and that despite life's pain and injustice, "I wouldn't have missed being born for anything." (To read the sermon from which this quote is lifed -- one of my favorites -- go here).
Our system let these men down. It allowed them to rot behind bars, largely without regard. But being wrongly convicted, and even being wrongly viewed as a rapist or child molester by their closest friends and family didn't change the reality that these men were innocent.
I don't know what the answer is. Obviously, allowing defense attorneys to present evidence at trial which would call into question the weight given to eyewitness testimony would be a start. So would more meaningful opportunities for post-conviction review of exculpatory evidence.
I don't know what the answer is, but because of the vagaries of fate and DNA testing, we all now know that a substantial portion of our prison inmates are innocent, and we must redouble our efforts to find out which ones.
Because sometimes, even if not everytime, when it matters most, it must matter most.
Monday, August 22, 2005
Tuesday, August 09, 2005
As the corporate world turns
There was an old country song called, "I'm My Own Grandpa," about a man who married the (widowed) mother of his father's second wife. It's one thing when Jeff Foxworthy jokes about straight family trees, but circular ones just make my head hurt.
There are some great examples of this phenomenon in the corporate context. Here's my top three.
In the 1995, CBS was acquired by Westinghouse. Then, in 1997, Westinghouse renamed itself CBS and spun off the entirety of its old Westinghouse operations as the new Westinghouse. At the beginning of the day, two companies, CBS and Westinghouse. At the end of the day, two companies, CBS and Westinghouse. You get the idea.
Long before the Westinghouse episode, CBS had a subsidiary called Viacom (formed to own the syndication rights to CBS original programming), which it spun off in 1970 and which, in turn, became an entertainment conglomerate in its own right. After the Westinghouse episode, in 1999, Viacom acquired CBS. Viacom is now, in 2005, on the verge of splitting itself in two, with the two companies to be called (no suspense here) CBS and Viacom. (For the Westinghouse/CBS/Viacom timeline, see here.)
Once upon a time, in 1985, the then-biggest acquisition in history involved the takeover of Nabisco by R.J. Reynolds Tobacco, valued at $ 4.9 billion, with the resulting company called RJR/Nabisco. First, in 1993, Kraft Foods (which itself is owned by Phillip Morris Companies, which also owns Miller Brewing Company and its eponymous tobacco company), acquired the Nabisco cereal line. In 1999, the tobacco company was spun off as R.J. Reynolds Tobacco. A year later, Nabisco's holding company sold its Nabisco operations to Kraft a/k/a Phillip Morris and sold itself, the now childless parent holding company, to R.J. Reynolds Tobacco. (The thinking was this kept all the RJR/Nabisco's liability for tobacco-related litigation in the same place.) (For the timeline, see here, here, here, and here.)
And several years ago, AT&T (to pick up the convoluted story of this company at a fairly late chapter) decided to divide itself into separate companies, among them AT&T and AT&T Wireless. AT&T Wireless was recently acquired by Cingular (which itself is owned by BellSouth and SBC Communications, two companies which were once, at a far earlier point in the story of AT&T, spun off from AT&T as so-called "Baby Bells" -- I told you it was convoluted). Now, AT&T has decided that it is advantageous to offer wireless services to its business customers, so it is contracting with Sprint Communications (which is about to acquire Nextel) to provide the services it was once able to provide itself. (See here.) AT&T itself, of course, was recently acquired by SBC Communications, its former subsidiary, which, in turn, is expected to divest itself of its interest in Cingular as part of the deal.
Makes you appreciate Melrose Place for its straightforward plotlines, doesn't it?
There are some great examples of this phenomenon in the corporate context. Here's my top three.
In the 1995, CBS was acquired by Westinghouse. Then, in 1997, Westinghouse renamed itself CBS and spun off the entirety of its old Westinghouse operations as the new Westinghouse. At the beginning of the day, two companies, CBS and Westinghouse. At the end of the day, two companies, CBS and Westinghouse. You get the idea.
Long before the Westinghouse episode, CBS had a subsidiary called Viacom (formed to own the syndication rights to CBS original programming), which it spun off in 1970 and which, in turn, became an entertainment conglomerate in its own right. After the Westinghouse episode, in 1999, Viacom acquired CBS. Viacom is now, in 2005, on the verge of splitting itself in two, with the two companies to be called (no suspense here) CBS and Viacom. (For the Westinghouse/CBS/Viacom timeline, see here.)
Once upon a time, in 1985, the then-biggest acquisition in history involved the takeover of Nabisco by R.J. Reynolds Tobacco, valued at $ 4.9 billion, with the resulting company called RJR/Nabisco. First, in 1993, Kraft Foods (which itself is owned by Phillip Morris Companies, which also owns Miller Brewing Company and its eponymous tobacco company), acquired the Nabisco cereal line. In 1999, the tobacco company was spun off as R.J. Reynolds Tobacco. A year later, Nabisco's holding company sold its Nabisco operations to Kraft a/k/a Phillip Morris and sold itself, the now childless parent holding company, to R.J. Reynolds Tobacco. (The thinking was this kept all the RJR/Nabisco's liability for tobacco-related litigation in the same place.) (For the timeline, see here, here, here, and here.)
And several years ago, AT&T (to pick up the convoluted story of this company at a fairly late chapter) decided to divide itself into separate companies, among them AT&T and AT&T Wireless. AT&T Wireless was recently acquired by Cingular (which itself is owned by BellSouth and SBC Communications, two companies which were once, at a far earlier point in the story of AT&T, spun off from AT&T as so-called "Baby Bells" -- I told you it was convoluted). Now, AT&T has decided that it is advantageous to offer wireless services to its business customers, so it is contracting with Sprint Communications (which is about to acquire Nextel) to provide the services it was once able to provide itself. (See here.) AT&T itself, of course, was recently acquired by SBC Communications, its former subsidiary, which, in turn, is expected to divest itself of its interest in Cingular as part of the deal.
Makes you appreciate Melrose Place for its straightforward plotlines, doesn't it?
Monday, August 01, 2005
Of tolerance and apathy, and the distance between
As a card-carrying member of Generation X (I was born 1971, so I'm smack-dab in the middle), I can say on behalf of my generation that we've been steeped on tolerance as a virtue our entire lives. Concepts such as pluralism, multiculturalism, and tolerance that (mystifyingly to us) were controversial in the 1960's were, by the time I came of age, almost anodyne. We were shown the multi-ethnic "Electric Company" in school, and read in our textbooks the unblemished hagiography of Martin Luther King, Jr.
But somewhere between then and now, the unarguable virtue of tolerance in theory got translated into apathy in practice. It wasn't simply enough to tolerate other beliefs, political or economic philosophies, religions, or lifestyles; one was required to eliminate all normative judgments and accept the equal validity of all choices made by others. Regarding religions, it's not p.c. to believe in one "true" religion. Instead, all religions must be said to be equally valid -- they are merely different paths to the same "god," whatever "god", or lack thereof, a person may choose to believe in.
But what is a religion but the sum of its constituent beliefs? To use an extreme example, if a religion believes in child sacrifice, is that an equally valid religion?
I, as a Christian, believe that my religion is the one true religion. And I fully expect adherents of any religion to believe their religion is the one true religion. Otherwise, why would they belong to that religion? The fact that I believe my religion is true and others' isn't doesn't mean non-Christians should be subject to any discrimination on the basis of their beliefs. By the same token, the right of others to freely practice their religion or non-religion is in no way infringed by my assertion that their belief structure is wrong and mine is right.
In one sense, it is true that there is some truth in any religion, because any religion is an honest attempt to respond to God's presence in our lives. It is also the case that there is some truth in atheism and agnosticism. At its best, atheism is an attempt to be intellectually honest about the state of the universe and a rejection of soft-headed religiosity; it's an assertion of existential self-reliance. Similarly, agnosticism captures the truth that God created us to do more than just go to church every day, read the Bible, and sing from the hymnbook -- he created us to live life. Some of us have inherited the lot of grappling with larger than life issues about the nature of humanity's struggle, but I'm not surprised or disappointed that others find such grappling tedious or superfluous to daily life (I feel this way myself sometimes).
I would also concede that there is more truth in atheism, agnosticism, and some other religions than there is in Christianity as wrongly practiced by many prominent Christians today. But that doesn't mean -- by a long stretch -- that all belief structures or "faith traditions" (to use the p.c.-approved term) are equally true.
The central precepts of Christianity are freedom, forgiveness, self-discipline, and care of others. Yes, we believe in miracles, the virgin birth, and the death and resurrection of Jesus, and some people can't accept the dubious factual historicity of these beliefs based on their subversion of observable scientific principles. My short response to this is that scientific paradigms do not explain the entirety of existence, and scientific skepticism as a posture from which to experience life is very often useful but can also become a stumbling block in understanding the larger truths about human experience and the meaning (if you want to call it that) of our existence.
I give this one paragraph summary of Christianity to return to what I said earlier: A religion is nothing if not the sum of its constituent beliefs. This is what I believe true Christianity is, in my own words, and it's why I believe Christianity is "true" and other religions aren't. If you don't agree with my assertion that Christianity is better than other religions or with how I've summarized the precepts of Christianity, fine. But at least recognize that Christianity (again, as I've described it) stands for something, and so do each of its alternatives. And when well-meaning "tolerant" people treat Christianity, Islam, atheism, and New Age as interchangeable belief structures, they're doing a disservice to each of these belief structures and their adherents.
Tolerance is difficult dance. One of the great ironies of American history is that the same Pilgrims who fled Europe in search of religious freedom wasted no time upon arriving on the "new" continent in enforcing their own religious orthodoxy and persecuting deviants. It's hard to separate beliefs from the person who holds the beliefs. But while I believe my beliefs are better than others', as a person I am in no way superior to anyone else, even remotely, and I would steadfastly defend anyone's right to believe whatever he or she chooses.
But tolerance and apathy are different. One is a great virtue. The other is merely a lazy excuse for refusing to take a stand.
But somewhere between then and now, the unarguable virtue of tolerance in theory got translated into apathy in practice. It wasn't simply enough to tolerate other beliefs, political or economic philosophies, religions, or lifestyles; one was required to eliminate all normative judgments and accept the equal validity of all choices made by others. Regarding religions, it's not p.c. to believe in one "true" religion. Instead, all religions must be said to be equally valid -- they are merely different paths to the same "god," whatever "god", or lack thereof, a person may choose to believe in.
But what is a religion but the sum of its constituent beliefs? To use an extreme example, if a religion believes in child sacrifice, is that an equally valid religion?
I, as a Christian, believe that my religion is the one true religion. And I fully expect adherents of any religion to believe their religion is the one true religion. Otherwise, why would they belong to that religion? The fact that I believe my religion is true and others' isn't doesn't mean non-Christians should be subject to any discrimination on the basis of their beliefs. By the same token, the right of others to freely practice their religion or non-religion is in no way infringed by my assertion that their belief structure is wrong and mine is right.
In one sense, it is true that there is some truth in any religion, because any religion is an honest attempt to respond to God's presence in our lives. It is also the case that there is some truth in atheism and agnosticism. At its best, atheism is an attempt to be intellectually honest about the state of the universe and a rejection of soft-headed religiosity; it's an assertion of existential self-reliance. Similarly, agnosticism captures the truth that God created us to do more than just go to church every day, read the Bible, and sing from the hymnbook -- he created us to live life. Some of us have inherited the lot of grappling with larger than life issues about the nature of humanity's struggle, but I'm not surprised or disappointed that others find such grappling tedious or superfluous to daily life (I feel this way myself sometimes).
I would also concede that there is more truth in atheism, agnosticism, and some other religions than there is in Christianity as wrongly practiced by many prominent Christians today. But that doesn't mean -- by a long stretch -- that all belief structures or "faith traditions" (to use the p.c.-approved term) are equally true.
The central precepts of Christianity are freedom, forgiveness, self-discipline, and care of others. Yes, we believe in miracles, the virgin birth, and the death and resurrection of Jesus, and some people can't accept the dubious factual historicity of these beliefs based on their subversion of observable scientific principles. My short response to this is that scientific paradigms do not explain the entirety of existence, and scientific skepticism as a posture from which to experience life is very often useful but can also become a stumbling block in understanding the larger truths about human experience and the meaning (if you want to call it that) of our existence.
I give this one paragraph summary of Christianity to return to what I said earlier: A religion is nothing if not the sum of its constituent beliefs. This is what I believe true Christianity is, in my own words, and it's why I believe Christianity is "true" and other religions aren't. If you don't agree with my assertion that Christianity is better than other religions or with how I've summarized the precepts of Christianity, fine. But at least recognize that Christianity (again, as I've described it) stands for something, and so do each of its alternatives. And when well-meaning "tolerant" people treat Christianity, Islam, atheism, and New Age as interchangeable belief structures, they're doing a disservice to each of these belief structures and their adherents.
Tolerance is difficult dance. One of the great ironies of American history is that the same Pilgrims who fled Europe in search of religious freedom wasted no time upon arriving on the "new" continent in enforcing their own religious orthodoxy and persecuting deviants. It's hard to separate beliefs from the person who holds the beliefs. But while I believe my beliefs are better than others', as a person I am in no way superior to anyone else, even remotely, and I would steadfastly defend anyone's right to believe whatever he or she chooses.
But tolerance and apathy are different. One is a great virtue. The other is merely a lazy excuse for refusing to take a stand.
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