Storyville

Turning every issue into a drama is warping public policy.

David Link from the January 1995 issue

(Page 3 of 6)

In the face of human diversity and natural mystery, we have a desperate need to know for sure. This is nowhere more visible than in the law. Virtually every society has a justice system designed to settle unsettled questions, to move us toward a satisfying certainty: Who is responsible for a murder? Who is at fault in an auto accident? Which party in a contract dispute can be held financially liable?

Heightening, then resolving, that uncertainty is one of the hallmarks of drama. In the Los Angeles Times, theater critic Laurie Winer posed this rhetorical question: "If we knew for certain that O.J. Simpson was guilty, would we still hang on to every expression?" It was, in fact, the uncertainty of what was happening in the back seat of the Ford Bronco that transformed an otherwise completely undramatic event into a world-class piece of theatre. While news reporters breathlessly characterized the pursuit up Interstate 5 as a "chase," what was really going on was following, not chasing. One reporter said O.J. was "fleeing," but at about 45 miles per hour on an empty L.A. freeway, he was being driven home with a police escort, not dashing for the border.

What was dramatic about the "chase" was the possibility that Simpson might do something inside the Bronco. All we could see from the helicopter shots was the Bronco's roof, with a few tantalizing glimpses inside the front seat. What was going on in the back? What had gone on in the back? Was he even still alive? Those questions provided the dramatic uncertainty, not the pursuit itself. People were glued to their sets because they wanted to find out how it would end--what would be revealed when the Bronco finally arrived home?

Uncertainty isn't enough to create a satisfying drama, however. We also expect, in the real world as in dramatic fiction, resolution--a climax and denouement. The longing for finality, for resolution in an ambiguous world, for an end, is one of the reasons we go to the incredible expense of having public trials. The public felt cheated when Michael Jackson privately settled the civil charges of child molestation he was faced with. What did the settlement mean? That he was guilty? Innocent but unwilling to go through the public meat grinder a trial would almost certainly have been for the famously reclusive singer? Jackson's settlement deprived us of that final judgment.

Indeed, we are willing to pay an extravagant price for finality. When the juries in the first criminal trial of Lyle and Erik Menendez could not reach a verdict after the months-long trial had ended, L.A.'s district attorney announced with unmistakable firmness that irrespective of the cost, he would mount a retrial, attempt once again to bring the case to a public conclusion. It was not the facts of the murder that were in dispute, but the ultimate question of the boys' guilt or innocence that we wanted finally decided.

Yet even a jury verdict cannot provide certainty. While few jurors have read Ludwig Wittgenstein, every one of them knows by heart his conclusion in the masterful essay, "On Certainty." Certainty is based not on facts, but on our intuition about facts. "Sure evidence," Wittgenstein writes, "is what we accept as sure, it is evidence that we go by in acting surely, acting without any doubt." Because there is always a residue of doubt about the facts, jurors are asked only to determine whether a criminal defendant is guilty beyond a reasonable doubt, not whether he is guilty without any doubt at all.

But as Justice Blackmun noted in Callins v. Collins, some doubts are not obvious. It is those doubts that nag. In other contexts, it might be possible to live with some uncertainty, but when the penalty is death, is any doubt acceptable? The problem is that doubts are always possible. Certainty, if viewed mathematically, is a target like the one Zeno's famous arrow could never reach.

It is that tiny area of uncertainty that the dramatic style exploits. The epidemiological studies may show that breast implants have no relation to connective-tissue disease, for instance. But confronted with a real woman who is really suffering, what reporter will favor the cold statistics? What jury? Facing this reality, breast implant makers threw up their hands at the futile prospect of besting drama with science in court, and settled lawsuits against them for more than $4 billion. As Wittgenstein argued, facts may speak loudly, but they do not really speak for themselves. Even within science, and certainly outside it, analysis is infected by intuition, by subjective beliefs about what facts matter, and about how they matter. Human beliefs can be pushed around, manipulated.

The significance of even the most stable facts can be heightened or undermined by their context. And that is what a trial is about--letting opposing sides orchestrate and fashion facts into one or another point of view. Look at two simple facts. At Nicole Simpson's condominium, police found a bloody glove. At O.J.'s mansion a few minutes away, Detective Mark Fuhrman reported that he found another bloody glove that appears to be a match. At O.J.'s preliminary hearing, these two facts were put into the context of other facts (the oddly parked Bronco, initial blood typing, etc.) to establish a suspicion that O.J. Simpson had been at both sites, and thus could have committed the murders.

But in the weeks following the preliminary hearing, O.J.'s defense put those two incontroverted facts into a very different context, one which supported a conclusion directly contrary to the prosecution's. In his notorious article in The New Yorker, Jeffrey Toobin reported that the defense was planning to rely on other undisputed facts, including an internal police department claim by Fuhrman for early retirement, to show he was racist. In that supercharged context, the defense would argue, the two facts look very different. Fuhrman could have discovered two bloody gloves at Nicole's and secreted one which he then planted at O.J.'s to get revenge on a rich and popular black man.

Both stories leave something out. The prosecution's story ignores, or at least minimizes, Fuhrman's on-the-record racist statements. The defense theory downplays Fuhrman's distinguished career after the retirement claim was denied. The defense also has to deny or minimize the obvious fact that perhaps more than a dozen officers were at Nicole's prior to Fuhrman's arrival, none of whom noticed two gloves rather than one.

A lawyer's tools are those of any storyteller: Lawyers appeal to human emotion, try to summon great motivators like injustice, sympathy, pity, terror, even (sometimes) prejudice. Lawyers take the raw material of facts, and by carefully selecting and constructing them, build them into a dramatic story that will sway a jury to see things their client's way. Their job is to assemble the story that best represents their client's version of events, to look at the facts the way their client views them, even if that means engaging in a certain conscious myopia.

But during a trial, law acknowledges the power drama has over facts by placing constraints on the storytelling ability of advocates. Lawyers must tell their client's story within the confines of due process and the rules of evidence to ensure that the jury will decide the case based on relevant and material facts. Lawyers are given wide leeway, but some facts are excluded from the jury's consideration because their contribution to one side's story, while emotionally powerful, may stray too far from legal relevance or plain reliability. It is the loss of this control that Judge Lance Ito is so concerned about in O.J. Simpson's case. Unlike lawyers, the media are not restrained by the constitutional and evidentiary boundaries that apply inside the courtroom and can report any version of the story that strikes their fancy, even the most unsubstantiated and inflammatory hints or rumors.

That problem is heightened in the court of public opinion. As in the media coverage of the Simpson trial, there are no rules of evidence, no canons of due process when we debate issues that make it onto the public agenda. As Jonathan Rauch has most persuasively argued in his book Kindly Inquisitors, the First Amendment is, and must be, pretty much an anything goes proposition. That means arguments about public issues may be unfair, irrational, feeble, deceptive, or even outright lies. Whatever works, as political consultants now so coolly shrug. One good emotional depth charge, one compelling story, can explode any sense of objective reality and send public policy spinning out of control.

"I can't support this scientifically, but I know it anecdotally..."