Sunday, June 21, 2015

Learning From History

The mass shooting at an historically black church in Charleston, S.C., last week is disturbing on so many levels. It is overwhelming from a distance. I can only imagine what it must be like closer to Ground Zero.

There is, above and beyond all else, the disturbing story of the event itself — a young man sat through an hour or so of Bible study with a group of (presumably) strangers, then (apparently) calmly opened fire on them. Nine people were killed.

In case you're wondering why I used the parentheses on a couple of words in the preceding paragraph, it is because there is still so much we do not know. As there usually is at this stage of the investigation into a criminal act. But TV has conditioned many people to believe that all loose ends can be tied up in an hour's time, allowing for commercials — so they leap to conclusions without knowing all the facts that can put an event into context.

Usually, those conclusions are self–serving rubbish.

The intention is not, as some people would have you believe, to justify what happened. The intention is to satisfy the legal requirements to define a criminal act accurately. Those definitions have evolved through many millennia and generations of human experience. When one person kills another, that is a tragedy, but the law must know certain things before a case can be dealt with appropriately.

There are a lot of emotions swirling around this case, and I sympathize with that, but the law should not be administered on emotion. It should be administered on facts. In a criminal case, especially one that involves the death of one or more people at the hands of another, facts establish the legal nature of the crime. Emotion, as we should have learned from recent events, is often mistaken and can cause another tragedy.

Do you recall the 1996 Atlanta Olympics? A bomb went off the night of July 27, 1996, at the Olympics, killing one person and injuring 111 more. A security guard discovered the bomb before it went off and managed to clear a lot of people from the area, probably preventing more injuries and deaths, but he still became the prime suspect in the case. The media was relentlessly aggressive in its pursuit of him, treating him as if it was a foregone conclusion that he was guilty — until he was cleared of all accusations a few months later. He had never been formally charged with anything, but the damage to his reputation had been done. His job was terminated on the basis of unreliable information provided to his employer.

Our experience has told us that a person is justified in killing another if the other person posed a threat to the first person's life. In other words, we have concluded that self–defense is a valid, albeit regrettable, reason to kill. So the law must answer the question, did this young man kill in self–defense? There has never been any indication whatsoever that he killed in self–defense so any legal provisions on that can be ignored.

And, because of our experience, we have decided that if someone causes another person's death through negligence, that, too, should be treated differently by the justice system than murder would be treated. The case in Charleston clearly did not result from negligence.

Our experience has told us that it is not right to hold someone responsible for his or her acts if he or she is insane. That is much more of a gray area, and it requires weeks and months of evaluation before that can be determined. It may also involve interrogating a suspect's doctor to find out if that suspect had any known mental issues and/or had been prescribed any medication to treat such a condition. At this point, it appears that the answer to both questions would be "yes" in this case.

The law also needs to know whether the killing was premeditated. If someone planned to kill another, that is — and should be — handled differently than a killing that occurs out of the blue (i.e., a couple of people get into an argument that turns into a fight with guns or knives or even fists and one of them is killed in the fight — tragic but usually not premeditated).

A premeditated killing can be punished by death. Unpremeditated convictions usually result in jail time.

If it was premeditated, the law needs to know if it was the result of a conspiracy. Did someone else participate, either at the scene or behind the scenes? That requires time, too — sometimes a lot of it. Certainly more than an hour. (Heck, I've heard suggestions all my life that the John F. Kennedy assassination was a conspiracy, but, after more than 50 years, that remains a matter of opinion only.)

In this case, the evidence suggests it was premeditated and, to this point, does not suggest that there was a conspiracy, but the investigators need to be allowed time to talk to all relevant witnesses and review available evidence. I have heard of no second shooters, nor have I heard any suggestion that someone paid this young man to shoot these people. It appears he acted alone, but the law must be satisfied, and laws vary from state to state.

And that isn't all there is to it.

Until recently, I would have thought that most police killings are not premeditated. In most cases, the lack of premeditation would qualify a killing for a lesser charge, but the killing of a police officer is treated as a capital crime (and, therefore, eligible for the death penalty). It is our way of discouraging people from killing law enforcement officers (which, I suppose, includes judges and other court officers) under any circumstances.

As I say, the law evolves over time, and there are provisions in the law that make it legally possible to prosecute an unpremeditated killing as if it were premeditated — if someone is killed when another crime is taking place (i.e., a convenience store robbery), the person responsible for the killing is eligible for the death penalty even though the death of another person was not intended.

If you have ever served on a jury, you know that legal verdicts are seldom, if ever, as simple as "guilty" or "not guilty." The verdict forms consist of many pages of questions, most of which are designed to answer specific questions like the ones I have just outlined.

Why must so many questions be answered? Well, it has a lot to do with the experiences that the Founding Fathers had. They came from environments where it was customary for the state to take a person into custody and hold that person indefinitely without informing him or her of the reason. The Founding Fathers believed all people were entitled to due process — and that suspects deserved protection against being repeatedly arrested and charged for the same offenses until a jury finally convicted them. (They called that "double jeopardy.")

Many times, convictions are appealed, and appellate courts have been known to overturn convictions for entirely unanticipated reasons. That is why it is so critically important for prosecutors to have their ducks in a row when they go to court. The burden of proof is on them, not on the defense. If a verdict is overturned, it will be because of a mistake someone on the prosecution's team made.

I'm not a lawyer, but I have served on juries before, and I covered trials in my reporting days. Not having studied law, I don't know the history of law and justice, and I readily admit that I could be wrong on this, but my impression is that law and logic (which is a class everyone in Arts and Sciences was required to take when I was in college) must have evolved simultaneously. Jury verdict forms remind me so much of the logic questions I had to plot — If all A are B, and all B are C, then all A are C.

(For people who never had to take Logic, I suppose the most appropriate comparison would be your standard flow chart — "If the answer is yes, proceed. If the answer is no, stop.")

It seems to me that is what much of the application of the law comes down to — logic, the law of averages, probability. Comparing cases without context can become matters of comparing apples to oranges when it is really more instructive to compare apples to apples. The fact is, though, that each person and each case is different from all the others. People are individual and imperfect; they don't share the same brain or possess the same experiences.

So, it seems to me, as long as the application of law is made by imperfect people, there will be imperfections in the system. But that doesn't mean we stop trying to make the system better. We try to learn from the situations we face, especially the ones that challenge what we have always believed, just as we learn from history in all walks of life. Discoveries are important in the evolving story of humankind. One discovery begets another, and together they form the building blocks for yet another discovery. We could not have sent rockets to the moon if we had not, at some point along the way, discovered how to make and control fire.

History is also about learning from mistakes, errors in judgment, what we have tried to do about them in the past that was successful and what didn't work (so we don't keep spinning our wheels). Sometimes history is shameful, but no useful purpose is served by revising it. The only useful purpose is to remember, like the child who learns from experience not to put his hand on a hot stove. That child probably won't try to go through life without a stove, but he will learn when not to touch one. Do you recall what George Santayana wrote? "Those who cannot remember the past are condemned to repeat it." Wise words.

My father was a religion professor at a small liberal arts college in Arkansas. One summer, when I was 13, my family spent a couple of months in Austria. We took side trips to places, and some of the places my father wanted to visit were important scenes from Germany's Nazi past — concentration camps, Hitler's retreat (Eagle's Nest) in the German Alps near the centuries–old, tiny town of Berchtesgaden. He wanted to take pictures of those places, pictures he could use in his college classes. He heard about them when they were in the news when he was a teenager; this was his opportunity to see them.

But he was disappointed. The German government, in its misguided attempt to erase Nazism from its national consciousness, allowed the concentration camps to fall into disrepair, and Eagle's Nest became a restaurant and beer garden (the irony of that is that, although Hitler occasionally drank in private, he never drank in public and actually gave up alcohol altogether in his last years). In fact, the first law enacted by the Allied Control Council after World War II ended abolished all Nazi symbols. Possession of Nazi flags has been forbidden in many countries since; the importation or display of them is particularly frowned upon in Germany.

What has been achieved by that in recent years? Well, neo–Nazism has been on the rise, and skepticism about the Holocaust abounds. Those who cannot remember the past ...

I am not a professional historian, but I have been studying history all my life, and one of the things I have learned from it is this: No possible good comes from denying the past. And that is why I reject the popular move to ban the Confederate flag. The Civil War was certainly a dark chapter in America's history, but there were important lessons to be learned from it. Banning the Confederate flag would prevent those lessons from being learned and, perhaps, like modern Germany, at some point give rise to a new Confederate movement among the American young.

Would I have a Confederate flag in my home? Absolutely not — nor would I have a Nazi flag in my home. But pretending they didn't exist or that they didn't witness some horrific things is to deny history. And I have learned that history always has the last word.

Recently, the Supreme Court upheld the decision of Texas, the state where I live, not to allow people to have Confederate flags on their license plates on the grounds that license plates are government property. I support that ruling.

But possession of the flag is not banned. It is still legal to have one; choosing to display it is a matter of free speech on an individual basis. Some people find that offensive, just as some people find the burning of the American flag to be offensive, but free speech is protected under the First Amendment. Former Texas Gov. Rick Perry spoke in an interview yesterday about how the Confederate flag divides people. He is right about that, but we owe it to ourselves and future generations not to ban the symbols of hate but to learn from them.

History is not served when it is whitewashed.

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