“By the very fact of having access to the meaning of salvation, we Orthodox Christians have the obligation to struggle for the relief of illnesses, grief and fear. Since we have experienced peace, we cannot remain indifferent in the face of its absence from today’s society. Since we have benefited from God’s justice, we struggle for greater justice in the world and for the eradication of all forms of oppression. Since every day, we experience divine clemency, we combat all forms of fanaticism and intolerance between men and nations. Since we incessantly proclaim the incarnation of God and the divinization of man, we defend human right for all men and all nations. Since by the mercy of Christ’s salutary exploits we experience the divine gift of freedom, we can declare its universal value for all men and all nations in a more comprehensive manner Since, having been nourished by the Body and Blood of the Lord in the Holy Eucharist, we experience the need to share God’s gifts with our neighbors, we have a better understanding of famine and deprivation and struggle for their abolishment. Since we await a new heaven and a new earth where absolute justice will reign, we struggle here and now for the rebirth and renewal of man and society.” (The Pan-Orthodox Conference of 1986, For the Peace from Above: An Orthodox Resource Book on War, Peace and Nationalism, Edited by Fr. Hildo Bos and Jim Forest, pg.60)
This is the 15th blog in the series which began with The Brainless Bible and the Mindless Illusion of Self and is exploring ideas about free will, the mind, the brain and the self. The previous blog is Implications of the Free Will Debate. This blog series is based on the recent books of two scientists who are considering some claims from neuroscience about consciousness and free will: Michael S. Gazzaniga’s WHO’S IN CHARGE?: FREE WILL AND THE SCIENCE OF THE BRAIN and Raymond Tallis’ APING MANKIND:NEUROMANIA, DARWINITIS AND THE MISREPRESENTATION OF HUMANITY.
Arguments about whether or not humans have free will are not abstract debates with no practical implications. As Tallis makes perfectly clear those he labels as the ideologues of Darwinitis and neuromania are intent on reshaping all of human culture according to their philosophical presuppositions. Tallis warns that we all should be paying attention to this debate and not allowing ourselves to be deceived by scientism which pretends to be science. Gazzaniga is not so confrontational and rather wants us all to recognize that there are different realms of knowledge and that questions about free well, consciousness and self are after all philosophical debates and not scientific ones since they are dealing with immaterial concepts and science by definition is limited to the study of the material world. We can look at one issue which Gazzaniga spends some time on: the legal implications of the free will debate. Both Tallis and Gazzaniga see the neuroscientific technology of the fMRI being brought ever more frequently into the courts as evidence and neuroscientists being called upon to offer their expert opinions on behaviors and free will. Since the modern Western sense of justice requires that a person must be capable of making a choice before being found guilty of having committed a crime, the neuromaniac’s claims that there is no such thing as free will has absolute implications for justice of any kind.
Leaving aside the ideological claims of the neo-atheist’s faith in scientism, we can see wherein there are problems. Gazzaniga outlines the judicial problem in the following way:
“Justice is a concept of moral rightness, but there has never been an agreement as to what moral rightness is based on: ethics (should the punishment fit the crime, retribution, or be for the greater good of the population, utilitarian?), reason (will punishment or treatment lead to a better outcome?), law (a system of rules that one agrees to live by in order to maintain a place in society), natural law (actions results in consequences), fairness (based on rights? based on equality or merit? based on the individual or society?), religion (based on which one?), or equity (allowing the court to use some discretion over sentencing)? Nonetheless, the judge tries to come up with a just disposition.” (Gazzaniga, Kindle Loc. 3270-75)
First, Gazzaniga may overstate the problem – there was a fair amount of broad social agreement on dealing with issues of justice that governed Western civilization for some time. It is the case that as modern Western society has moved away from a purely modernist view point and relied more on human reason than divine revelation that more diverse viewpoints have come to the forefront. Multiple perspectives on any issue have become increasingly accepted in our totally individualistic and autonomous based thinking. The seeds of the Enlightenment’s fight for the absolute rights of the individual have taken root. Post-modernism and its rejection of any meta-narrative tying together individuals is a fruit of this evolution in thinking. So under the influence of several very prominent current philosophical trends, agreements about morality and normality and what is acceptable have eroded. This is the cause of the very partisan and divisive politics in our country. Some would also say it is simply the nature of modern democracy.
The neuroscience contribution to the fray is that in courts more appeals are being made to fMRI technology to excuse or defend individuals based on the notion that they have “abnormal brains” and thus cannot be held personally accountable for their behavior. Gazzaniga points out some of the problems with the courts uncritically accepting fMRI scans as scientific proof for excusing behavior:
“There are other problems with the abnormal brain story, but the biggest one is that the law makes a false assumption. It does not follow that a person with an abnormal brain scan has abnormal behavior, nor is a person with an abnormal brain automatically incapable of responsible behavior. Responsibility is not located in the brain. The brain has no area or network for responsibility. As I said before, the way to think about responsibility is that it is an interaction between people, a social contract. Responsibility reflects a rule that emerges out of one or more agents interacting in a social context, and the hope that we share is that each person will follow certain rules. An abnormal brain does not mean that the person cannot follow rules.” (Gazzaniga, Kindle Loc. 3078-83)
Gazzaniga in the above statement comes closer to the position and concerns that Tallis raises. Personality responsibility like consciousness and free will do not reside only at the level of individuals but are part of the shared social space in which all humans participate. Gazzaniga points out:
“Diagnosed with schizophrenia after the fact by a psychiatrist for his defense, John Hinckley was found not guilty by reason of insanity for his attempt to assassinate President Reagan. This attempt, however, was premeditated. He had planned it in advance, showing evidence of good executive functioning. He understood that it was against the law and concealed his weapon.” (Gazzaniga, Kindle Loc. 3092-94)
The push by some neo-atheists to deny the existence of free will in humans carries with it an extensive agenda to reform society based on the ideology of scientism, which is a system of belief which denies many of the ideals, aspirations and hopes that have traditionally guided society. It calls into question the purpose of legal consequences by denying that a person has the ability to make the choices they do. Gazzaniga counters:
“No matter what their condition, however, most humans can follow rules. Criminals can follow the rules. They don’t commit their crimes in front of policemen. They are able to inhibit their intentions when the cop walks by. They have made a choice based on their experience. This is what makes us responsible agents, or not.” (Gazzaniga, Kindle Loc. 3432-34)
Thus the push for changing how human society has dealt with social problems based in the belief system of scientism is an effort to deceive for it claims to be based in pure science while it based in the philosophical beliefs of materialism. This is why Tallis warns strongly that we should be afraid of those who believe they can scientifically engineer human morality. Scientism may be a child of the Enlightenment but it intends to gut the very nature of American idealism which is based in human freedom and personal responsibility.
The Lord Jesus taught:
“Do to others as you would have them do to you. If you love those who love you, what credit is that to you? For even sinners love those who love them. If you do good to those who do good to you, what credit is that to you? For even sinners do the same. If you lend to those from whom you hope to receive, what credit is that to you? Even sinners lend to sinners, to receive as much again. But love your enemies, do good, and lend, expecting nothing in return. Your reward will be great, and you will be children of the Most High; for he is kind to the ungrateful and the wicked. Be merciful, just as your Father is merciful.”
St. Hesychios the Priest said:
“If you do not want to suffer evil, do not inflict it, since the suffering of it inevitably follows its infliction. ‘For whatever a man sows he will also reap’ (Gal. 6:7). Reaping unwillingly the wickedness we deliberately sow, we should marvel at God’s justice. “ (The Philokalia, Volume One, pg. 172)
The news about the Grand Jury’s investigation into the Philadelphia Roman Catholic clergy sex abuse scandal is shocking: http://www.npr.org/2011/03/09/134384800/Pa-Archdiocese-Suspends-Priests-Named-In-Sex-Report. It should also be a warning to all bishops that in the United States, the police and courts are not going to be sympathetic to a church that does not actively and pro-actively work to prevent child sex abuse. As the news story says, what is happening in Philadelphia is going to send shock waves across America in how the police, prosecuting attorneys and courts deal with clergy sex abuse – in any church or denomination. Churches which try to hide behind protecting clergy rather than protecting children by claiming the dangers of “false allegations” are going to find themselves in deep trouble with the law and with courts. As the news reports it (emphases is mine):
“The grand jury report accused a monsignor, three priests and a parochial schoolteacher of abusing kids or failing to prevent abuse by others. It also said that as many as 37 priests remained in active ministry with allegations or reports of inappropriate behavior or sexual abuse of minors.”
Failing to remove priests or bishops against whom allegations of sexual abuse are brought from positions of ministry is now going to be interpreted as a failure to protect children from abuse. Churches will pay for this failure through summary judgments against them in courts. Showing some form of sympathy to sexual abusers – moving them to a new location, allowing them to serve under some form of watchfulness or mentoring – is going to be interpreted as the church failing to protect its own children.
“Anytime a credibly accused child molester is publicly identified or suspended, kids are safer. However, it’s crucial to remember that the grand jury found widespread fault and deceit and recklessness by church officials.”
Church leaders need to be aware of how the courts and the law are going to interpret actions taken for or against both the victims of abuse who make allegations and those alleged to have abused others. It is not only the abusers themselves whom the courts are now going after – they are looking to hold accountable the church officials responsible for supervising these clergy including bishops.
“This report takes it to another level because they go after the vicar for clergy — that person who has the authority of the Archbishop Justin Rigali to handle priest affairs and priest assignments, and that person now is being called to justice,” says Wall, who has worked on priest sex abuse cases across the country.”
Bishops, priests and parishioners need to make themselves totally familiar with their church’s Sexual Misconduct Policies as well as the laws in the states in which they live. A failure to adhere to Church policies or to recognize the authority of the state in child sexual abuse cases will prove costly in court to the church and to church leaders personally.
He says the situation in Philadelphia could have ripple effects on litigation nationwide.
“It really does change the face of things, because not only can we look to the bishop or the religious superior, but now we can specifically look at how different lower, midlevel managers could be charged with child endangerment,” Wall says.
The failure by bishops to enforce Church policies regarding sexual misconduct, the failure to remove from ministry sexual abusers and predators is going to be understood by the police and courts as the crime of child endangerment by bishops.
As Orthodox, perhaps we have imagined that the sexual scandals of the Catholic Church will not touch us. The law of the land however will treat our church, priests and bishops the same as Catholic priests and bishops who engaged in sexual abuse or who failed to protect children.
Bishops and priests are charged to keep watch over their flocks and spiritual children by taking seriously our policies and procedures in dealing with cases of clergy sexual misconduct, of predation, and of abuse. Those who engage in these immoral and illegal behaviors can indeed repent and express remorse, but they should not be allowed to continue as clergy in the Church under any circumstances. Bishops should not put themselves in the position of being accused of child endangerment by failing to deal with sexual misconduct, abuse or predatorial behavior by any clergy. While some may fear this imposes secular/state law over Church canon law in dealing with such problems and curtails the power of the bishops in these matters, there is the reality that we are supposed to be in the world, but not of it. In the world the Church recognizes certain authority that the state has over its citizens. Sexual abuse of children is in the eyes of the United States not simply a sin or spiritual problem, it is a crime and the state reserves the right to deal with such crimes committed against its citizens.
“Take no part in the unfruitful works of darkness, but instead expose them. For it is a shame even to speak of the things that they do in secret; but when anything is exposed by the light it becomes visible, for anything that becomes visible is light.” (Ephesians 5:11-13)
A trend in traditional Western Christianity interprets the Fall in a mostly juridical sense of humans breaking God’s Law. God’s response to humans disobeying His commandments in this view follows an emphasis on keeping justice in the universe, as if the Triune God of love, like the gods of Buddhism, of necessity must adhere to the justice of Karma in the universe. Some Eastern Christian theologians however saw sin not as the cause of the human problem, but rather as a result of it: humans in their thinking because of their free will had first separated themselves from God and then proceeded to sin. Thus the first cause was a human choice of will – to set aside the human relationship with God, and also the role/relationship God had created for the humans in the world, and to act autonomously, separated and alienated from the source of life and from life itself.
“The Fall was precisely the perversion of the interior relationship established by God. … The serpent insinuated: ‘God said, ‘You must not eat from all the trees of the garden’ (Genesis 3:1). Now God had actually said exactly the opposite: ‘You can eat from all the trees of the garden’ (Gen 2:16), but with different consequences. If St. Paul says: ‘Everything is permitted but not everything is useful (1 Cor 6:12), the serpent would say “Everything is forbidden but everything is useful.’ God thus is transformed into a law, into a prohibition. But God did not say, ‘Do not eat of the fruit, otherwise you will be punished.’ Rather, he said, ‘Do not eat of the fruit, otherwise you will die.’ This is not an order but the announcement of a destiny freely chosen in one meaning or in another. It has nothing at all to do with simple disobedience but with inattention to living communion with the Father, with the drying up of the thirst for his presence, for his love and truth which is life, in the absence of which there is only death. At the moment of temptation we see God as an authority dictating order and demanding blind obedience. Such a suggestion comes from Satan.” (Paul Evdokimov, IN THE WORLD, OF THE CHURCH, pp 227-228)
Humans were created as relational beings – first having a relationship with God, then with each other, and together in relationship to the rest of the created order. The loss of the primary relationship with God – the relationship with the source of life – resulted in death becoming part of the human condition. Humans chose to separate themselves from the Giver of Life becoming mortal beings. Thus the ancestral sin is one of broken Communion not merely breaking the law.
“This is the famous story of the forbidden fruit, which man ate secretly apart from God, in order to become like God. The meaning of this account is simple: man believed that from food alone, that by pure reliance on its consumption, he could receive that which is actually possible to receive only from God. By way of food he sought liberation from God, which only led him to slavery and dependence on food; man became a slave of the world. But this also means a slave of death, for the food which gives him his physical life cannot give him that freedom from the world and death, which can only come from God. Food, the symbol and source of life, became the symbol of death. For if a man does not eat he dies. But if he eats he still dies, for food itself is a communion with that which has died and therefore with death. And so, finally, salvation, and recreation and forgiveness, and resurrection itself are linked also in the Gospel with food.” (Alexander Schmemann, OUR FATHER, pp 58-59)
God in dealing with Fallen human beings deals not just with beings who violate rules (a justice issue), but beings who have broken relationships and have thus become something less than full human beings (an issue of love). We have become dehumanized and inhuman. Christ comes into the world to make us fully human again. He descends into Hades to rescue us from the power of death and to destroy Satan who has the power of death. Salvation is thus not fully understood when it is interpreted only in juridical terms because this thinking fails to fully appreciate what it means to be human. Salvation is about the restoring of relationships – of reconciling God to humanity, and of restoring the relationship of the dead to their loved ones. Resurrection is thus the needed tool of salvation to fully restore all of those relationships which have been broken by sin and by its wages, death.
There is a story from the desert fathers that looks at our own motivations for offering our repentance to someone we have offended. Why do we offer an apology to someone and seek their forgiveness? Do we ask forgiveness to fulfill Christ’s command which we then believe forces the other to have to forgive us? Do we repent of offending others because we regret the pain we have caused them or because we want to pressure them into forgiving us?
It is possible to use asking forgiveness as a means to justify our dislike of another if they don’t respond in a way we think is appropriate. Seeking forgiveness never puts us in a position of moral superiority over another, but rather when done from the heart, humbles us before the person we offended, and places them in a position of being at their mercy. Something to think about when we seriously offend someone close to us through adultery, lying, theft, abusive anger or rage.
A brother asked Abbâ Poemen, “Tell me, why is it that when I offer repentance to a brother who is angry with me, I do not see him pleased with me?”
The old man said to him, “Tell me truly: when you offer your repentance to him, do you think that you are doing this because you have sinned against him, or because of the Law, the commandment?”
The brother replied, “It is because of the commandment.”
The old man said to him, “Because of this, God does not permit him to be pleased with you; you haven’t offered repentance to him out of your own desire because you have sinned against him, but, instead, as if he has sinned against you.” (The Sayings of the Holy Fathers, pg 250)
“You, however, have not been appointed to decree vengeance upon men’s deeds and works, but rather to ask for mercy for the world, to keep vigil for salvation of all, and to partake in every man’s suffering, both the just and sinner’s.
Instead of an avenger, be a deliverer. Instead of a faultfinder, be a soother. Instead of a betrayer, be a martyr. Instead of a chider, be a defender. Beseech God in behalf of sinners that they receive mercy, and pray to Him for the righteous that they be preserved [in their righteousness]. Conquer evil men by your gentle kindness, and make zealous men wonder at your goodness. Put the lover of justice to shame by your compassion. Remember that the sins of all men go before them to the judgment seat.” (St Isaac the Syrian, The Ascetical Homilies, pgs 313-314)
All of us in the church, but especially anyone in a role of leadership (teacher, parish council member, etc), should make ourselves familiar with the laws that govern the mandatory reporting of child sexual abuse. In the U.S. these laws are generally set at the state level. Someone who suspects (or even, as the laws often state, “reasonably should have known of”) child abuse is expected to report it to the civil authorities. (And some people in society, often medical personnel, teachers, youth workers, and sometimes clergy are mandated to report sexual abuse even if they only suspect it). This duty to report does not mean the reporter is making an allegation. They simply are telling the authorities of a concern. The civil authorities then have the responsibility to investigate the report and decide what action, if any, to take. Those who have reason to suspect child abuse is taking place and fail to report it to the civil authorities themselves can face serious criminal charges.
We can keep in mind that though this is now law in most states, it is fairly new in the law books. The Church itself is in the process of adapting to these child sexual abuse laws and incorporating their intent into its own climate and culture. This is all one effect that the recent highly publicized church sexual abuse scandals has had on all churches in America.
Sometimes someone in the church is the reporter of such an event to the civil authorities. Sometimes someone in the church is reported to the authorities (and fortunately this isn’t often – we must work to make sure it isn’t!). The Church today by law must take all reports of sexual misconduct seriously. This means that the Church has to act upon reports of sexual misconduct of which it becomes aware. This is not acting on rumor, but following the law. If someone warned the Church that a report of sexual misconduct has been made against a clergyman, the Church these days must take that seriously and move to protect its children. A report about sexual misconduct usually exists before an investigation takes place. If the Church is aware of such a report, it will and should take such actions as to protect its children. This usually means the clergyman involved would be put on leave of absence or suspended while the investigation takes place. This is not the Church taking sides against the clergyman, but rather doing a responsible thing while the report is being investigated. A report being made is not proof of guilt. An investigation taking place is not proof of guilt. A clergyman being suspended is not proof of guilt, nor proof that the Church believes the clergyman guilty. It only means the Church is doing due diligence while an investigation by civil authorities occurs, and/or the Church itself is doing an investigation. (I would say just keep in mind what jurors are told in a trial – the fact that someone is wearing a uniform or holds some position of authority does not mean that person’s testimony is more reliable than anyone else’s. The same logic applies during an investigation into possible clergy sexual misconduct – everybody’s words must be considered fairly and weighed with or against all the evidence and all the pertinent testimonies – both those making the allegations as well as the accused must be given a fair hearing. In other words, the assumption now is that just because a person holds high office or a position of trust doesn’t mean that person’s word is more trustworthy than that of others when it comes to sexual misconduct. Liberty and justice for all includes children, the oppressed, the defenseless, minorities, the weak, and the abused, not just those in power and authority or who can afford it).
The court may decide that there is insufficient evidence to pursue a criminal or legal verdict, which does not say that the allegations are false. In such an event, the church’s own investigation will also have an important say in the matter. The Church can decide that though there is not sufficient evidence for a criminal conviction, that there is in fact sufficient evidence for the church to act on and rule on the allegations. The Church’s authority to rule on such cases is not pre-empted by a civil court.
Where there is a separation of church and state, two investigations (one civil and one ecclesiastical) are needed. Even in Byzantium, where there was no separation of church and state but rather a “symphony” between them, St. Basil reminded the civil courts in a case involving theft from the church of donations collected for the poor, that the civil criminal investigation does not supersede what the Church decides about guilt in the Church’s internal affairs. The church may take into consideration any of the findings of the civil investigation and also whatever actions the civil authorities took. But the church’s own investigation and actions are not determined by, limited to or coterminous with the civil investigation and civil administration of justice.
When an allegation of clergy sexual misconduct involving minors is made, two investigations are called for. First, the reporter of the suspected misconduct should go to the civil authorities (this may be mandated by local law). The civil authorities have their own responsibility to investigate such a complaint. Second, the reporter should inform church authorities that such a report has been made with the civil authorities, which then initiates a church investigation. The two investigations will hopefully cooperate to make sure a complete investigation is conducted, but they are two separate investigations: one is deciding criminal liability, the other moral culpability. (The church has to react to such a report even if the police have not yet opened an investigation). The result of the two investigations have different consequences: civil authorities are not concerned with whether the alleged perpetrator is allowed to continue holding a clerical title – that is the church’s business. Conversely, church authorities are not in the position to order criminal penalties such as jail time. Whether or not the accused is found guilty of a crime, the church can decide the behavior was egregious enough to defrock the cleric.
A list of other blogs I’ve posted on church sexual misconduct with links to them can be found at Blogs on Church Sexual Misconduct.
Allegations of misconduct of any kind by church officials often bring strong reactions from the public, the press and parishioners. Some are scandalized, some angry, some sickened, some dismayed, and some disbelieve.
In the current age, the church must make response to allegations against its leadership regarding misconduct whether sexual, moral, financial, or pastoral. Allegations when they are made cannot always be judged immediately as credible or not, and so investigations into allegations are needed, even if the allegations seem farfetched. That is what a true investigation is supposed to determine.
Sometimes as soon as an allegation is made people take sides, either, on the one hand vindicating the accused declaring such an event could not have happened or is unbelievable because the accused is innocent, or on the other hand vilifying the accused as guilty even if nothing is proven.
In the church such allegations are painful and threatening partly because the church has a responsibility to minister to all parties – the victims, those reporting problems (whistle blowers), those asked to testify (witnesses), as well as all the accused. (Note: Victims are those directly abused, as well as the larger group of people who might be affected by the events whether witnesses, innocent bystanders, family members, fellow parishioners, etc). The church and its leaders do not always know the truth of the events. However, the church has to come to grips with what it means that allegations must be taken seriously, how to investigate allegations fairly and thoroughly, and how to minister to all the parties involved. When both the accusers and the accused are members of the church, how does the church fulfill its responsibilities to all?
Recently allegations surfaced regarding Archbishop Seraphim of Canada. One can see on the internet the strong emotional reactions to this from those who declare his innocence, to those who suspect truth in the allegations and from those who do not know what to think.
The church has an obligation and a responsibility to investigate serious and credible allegations, this most would agree with. But these days, fairness and due diligence demand all allegations be investigated. Obviously fairness is viewed very differently by those who allege themselves to be victims of abuse and by those who are the accused.
Metropolitan Jonah has publicly stated numerous times that the church will have a zero tolerance policy toward sexual misconduct and that clergy will be defrocked for violating standards of conduct. This stance itself means that allegations of sexual misconduct must be thoroughly investigated to determine what course of action the church must take.
An allegation is a statement most often from someone claiming to be a victim of abuse, against another person. Allegations may also come from third party people who have witness or learned of an abuse. An allegation does not mean the accused has been found guilty of anything; it is a statement saying that someone was or may have been wronged by another.
Taking allegations seriously is important for any church since the very being of church as community is based in trust. If people violate that trust for their own sinful ends, it is an evil. Unfortunately not all people are equally capable of defending themselves from abuse, and so the church has to take an interest in protecting all of its members from abuse, especially those who might be termed, “the weak.” Part of that protection involves looking at complaints of abuse, no matter who makes the allegation and no matter who is the accused.
The church must take allegations seriously – investigate all serious complaints. It has a responsibility to hear the cry of those who have been victimized by abuse, especially if it comes from church leaders. Investigating all allegations protects both church members and church leaders. If everyone believes a full and fair investigation will always take place, then people will trust the system to work and to work for them.
While an investigation into clergy sexual misconduct is ongoing, there are many temptations of passion that can affect the membership of the church: anger, judgmentalism, impatience, unbelief, despondency. It is a time for prayer, and waiting on the Lord to reveal the truth.
This is the 2nd blog in a series on my experience as a juror in a criminal case. The 1st blog is Judging the Jury.
The courtroom has to be one of the few places in America where propriety is practiced. Everyone in the court must rise and stand each time the esteemed members of the jury enter or depart. The jury and all must stand whenever the judge enters or leaves. Besides this courtesy however, there was very little ceremonial or ritual behavior, at least compared to what I am used to seeing in the Orthodox Church. There are rules of behavior which govern the judge and attorneys and they keep to those strictly even when they are done merely by habit. The judge is the only person, outside of the sheriff deputy, in the courtroom who wears a uniform, which is patterned after the flowing black robes of the ancient philosopher.
The judge’s position is somewhat the combination of an umpire and the Commissioner of Baseball. It is her courtroom. She determines a lot of what happens, especially what the jury is permitted to see, know or even remember! She decides a lot about what the rules of the game are, though she is following a pre-determined set of rules herself. When the attorneys dispute, the judge rules between them (again the jurors are not permitted to witness how the decisions are reached – they can only know what the decisions are even if they never were told what the dispute was in the first place; nor is the jury even told what the rules are which are governing the trial. You are expected to accept the judge’s judgment – that is one of the few rules that are given to you before the trial). Disputes, however little is explained to the jurors, end with the judge saying, “Proceed” (the courtroom equivalent of the umpire shouting, “Play ball!”).
The attorneys, as already mentioned, are always playing to the jury. Here is where the courtroom is very much like baseball. I am told that baseball is a game of strategy – which for me translates into it being painfully slow as each pitch thrown is part of the strategy, and many pitches are thrown for no purpose than to confuse the batter or waste time, which is a part of the strategy. The attorneys too are enacting their strategies for the benefit of the jury, and questions however obscrure are done for some purpose. The attorneys do want the jury to reach a certain conclusion, though they don’t necessarily want the jury to understand the strategy, or even to be aware that all that is happening is part of the strategy. If you pay attention to everything the lawyers say, you find yourself very frustrated, especially in their questioning witnesses as they throw many curve balls, fastballs and sliders, not to mention a few knuckleballs and even a few spit balls just to confuse the witness (or worse they keep throwing the ball to the first basemen to keep a runner close to the bag which seems to do nothing but prolong the trial). Sometimes the jurors are confused about who the “he” is who is now being discussed, but the jurors can never ask questions to clarify things. For part of the strategy is that when the juror meets to decide the case they have to rely solely on what they remember was said in court. And if the intention of the attorneys was to leave a point confused so that the juror’s deliberation will be confused and inconclusive, this adds to the mix of how decisions are made or missed.
Like in baseball where the pitcher has to keep throwing pitches at the batter no matter how many balls he fouls off, attorneys also appear to be able to ask the same question 8 different ways to fit their own strategy of what they are trying to do with the jury. There seemed to be no “Asked and answered!” limit in court. The attorneys seem to be in no particular hurry to enact their strategy, and for this juror at least the main question at times was not “where is he going with this?” but “is there no end to this?” This was more true of the defense attorney (which by the way, is a thankless job in a criminal case in which you are the public defender. You may have little defense to work with, and though the defendant is presumed innocent until proven guilty, if you win the case, the public is not very thankful that someone they presumed guilty has gotten a get out of jail free card allowing them to resume their “normal” activities).
The defense attorney’s task in the criminal trial is not to establish the truth, but only to make the jurors have “reasonable doubt.” The burden of proof falls totally on the prosecuting attorneys. This is the court of the Enlightenment, skepticism rules: if you can’t overcome doubt, your case is not to be counted as true. From that point of view it struck me that the prosecuting attorney has a much more difficult job than the defense. The defense is not proving anything, just casting doubts. The prosecuting attorney has to get you to believe something, the defense attorney only has to cause you to question the story or to doubt.
Witnesses are sworn to tell the truth, but jurors are warned never to assume the truthfulness of the witnesses. The courtroom is not a scientific experiment with perfectly controlled results. The human element including human error, human motivations, self-interest, misunderstanding, misreading and hubris is a huge part of the courtroom dynamic. So as in much of life where a “buyer beware” mentality is in place, the juror must rely on intuition, discernment and wisdom to evaluate what is being said. Truth is not the goal of the proceedings, rather influencing the jurors’ thinking is the goal: the prosecutor wants to make a believer of you, the defense only needs you to be reasonably skeptical.