Health is shown, rather, when society has had the patience to allow “due process,” with all its faults and restrictions, to do the limited job it was designed to do.Justice isn’t only something judges and juries do. Whether a person is in a courtroom arguing for his or her life or in a hearing arguing in defense of his or her reputation, justice is still necessary. It is something we must establish every day—in the way we live with others, in the way we speak humbly and attend to all the facts patiently, in deference to reality and the truth of things.

Posted on October 4, 2018 by abyssum
The Parallels Between Karamazov and Kavanaugh
by Randall Smith
within Constitutional Law
Oct 03, 2018 08:00 pm http://www.thepublicdiscourse.com/2018/10/22646/
Justice is something we must establish every day—in the way we live with others, in the way we speak humbly and attend to all the facts patiently, in deference to reality and the truth of things.Share this article:       The final chapters of Fyodor Dostoevsky’s great novel The Brothers Karamazovdepict the trial of the eldest of the three Karamazov brothers, Dmitri, who stands accused of having murdered his father, Fyodor Pavlovich. The evidence against Dimitri is damning, but he maintains his innocence. And for a good while, even we the readers are left unsure as to his guilt or innocence.Prosecution vs. Defense: Battling for the Soul of RussiaFrom the very beginning of the trial, it quickly becomes apparent that the two competing narratives about the state of Russian society, instead of the crime itself, will take center stage. The prosecutor, Ippolit Kirillovich, an elderly civil servant at the end of a humble career, argues that the “real crime” is not this isolated act of murder, but rather “that we are so used to it.” To Kirillovich, Dmitri Karamazov is Russia, and Russia is Dmitri Karamazov: a foolish libertine finally gone too far, a once-noble soul now corrupt and open to scorn. Dmitri Karamazov represents all that has gone wrong with a once-proud and once-great nation. The course is clear: convict Dmitri Karamazov and save Russia from its decadence and decline.Pitted against our lowly, local prosecutor is one of the greatest defense attorneys in all of Russia, a man identified only with the single name “Fetyukovich,” as we might say “Madonna” or “Sting” or “Hillary,” with no need for further identification. As his first move, our brilliant young defense attorney turns the prosecutor’s opening argument on its head. The sorry state of Russia’s soul should convince the jurors that they must exonerate poor Dmitri, not convict him. Who, after all, made the poor boy into the wretched man he has become? No one but his disreputable father who, by his lack of care of the boy, showed himself to be no sort of father at all.The defense attorney adds that the jury must “not be afraid” of “the progress of the past few years,” a progress that, if we are not too timid to embrace it, will cause us to realize that uncaring, irascible fathers are not fathers at all. The defense attorney clearly thinks there is a certain something to be gained by tying his point about “worthy” fathers to claims concerning cultural “development” and modern “progress.”The defense attorney continues interpreting ‘father’ to also mean that “though a monster, though a villain to his children, [my father] is still my father.” The defense attorney knows that if he is to convince the jury to jettison their traditional moral code forbidding killing, he must first undermine the other fundamental element that made up “traditional” Russian society: namely, its traditional devotion to religion. And what better way to undermine it than in the name of “progress”—a progress that can only come about if they are “not afraid” of “new words and ideas”? “Let other nations have the letter and punishment,” he tells the jury and the assembled crowd, “we have the spirit and meaning, the salvation and regeneration of the lost. And if so, if such indeed are Russia and her courts, then—onward Russia!”These are great speeches, and they must have moved Dostoevsky’s Russian readers in ways we can only imagine, given our detachment from the political and social currents of the time. Those with generally “conservative” views, unhappy with what they would have viewed as the decline of society and its standards, would undoubtedly have cheered the prosecutor’s criticism of the younger generation and cringed at the defense attorney’s diminution of the traditional meaning of the term “father” so as to suggest that parricide is not parricide if the man in question is not a worthy father.Readers with more liberal progressive or “enlightened” views, by contrast, would probably have found the prosecutor’s case laughable, as they would have found the prosecutor himself contemptible in his antique ways of thinking. In him, they would have seen an old man of the previous generation who never made much of himself in the larger society, stuck in a government job in the small town in which he was raised, overmatched in the biggest trial of his life. Contrast him with the defense attorney Fetyukovich: dynamic, well-spoken, open-minded, a St. Petersburg luminary, educated at the best universities.An Important Lesson about TrialsAs great as these speeches are, they both share one glaring flaw: they have next to nothing to do with the point of the trial, namely, determining whether Dmitri Karamazov did or did not kill his father. Russia may indeed have become a moral cesspool, and Dimitri Karamazov may well be an irresponsible libertine (so too was his father), but neither claim establishes his guilt of this particular crime.Turning to the onlookers,  Dostoevsky gives us the reactions of the trial’s spectators at various points, most of which are foolish and biased, intriguingly he tells us nothing about the reactions of the jury, except to provide this comment: “Yes, sir,” says one of the townspeople, “our peasants stood up for themselves.” “And finished off our Dmitri,” says another.“Our peasants stand up for themselves” is in fact, the title of the chapter. But the title is ambiguous. Did they “stand with” Kirillovich because he represented the old order and noble Russia of years past? Or did they “stand against” the sophisticated, enlightenment-era courtroom savvy of the canny St. Petersburg attorney? Either way, the result is the same. In “standing up for themselves,” the peasants convict an innocent man of a crime he did not commit. They “finished off” Dmitri.It’s not clear whether the jury accepted the defense attorney’s narrative about Russia or the prosecutor’s, but it is clear that the dueling meta-narratives are what most enthralled the spectators of the trial. These are naturally very humanreactions—as human as not being able to avert one’s eyes from a car crash on the highway. And yet, another lesson we can—and must—learn from Dostoyevsky’s wisdom is this: the sorts of considerations that enthrall the crowd are often entirely immaterial to the particular details of the trial of a particular man. Dmitri Karamazov’s guilt cannot be determined from the sorry state of the Russian nation any more than his innocence can be established from fact that decadent old Russians make bad fathers.“We Can Just Tell” With this in mind, it is thus only with the greatest trepidation that I venture to make the slightest comment in retrospect about the testimony of Brett Kavanaugh and Christine Blasey Ford in the US Senate. I was busy working so I did not watch the testimony, but a friend reports from viewing Facebook posts that there seem to have been four different testimonies—so different, in fact, that they must have been given by four completely different people. There was the Kavanaugh who was strong and defiant, a man rightfully disputing his unjust treatment; a man who, though clearly angry, was mature enough to show some emotional vulnerability. Then there was another Kavanaugh. This Kavanaugh was overly emotional and his responses were “chilling.” There was the Ford whose testimony was calm, entirely credible, and heart-wrenchingly honest. And then there was the other Ford whose testimony was vague, rambling, and deficient in crucial details, an odd contrast to her claim that she was “100% certain” that it was Kavanaugh who had assaulted her.Each person commenting online and in the press seemed absolutely certain that he or she could “just tell” what the truth was simply from looking in the person’s eyes and listening to his or her words. The fact that studies by groups like the Innocence Project have repeatedly shown that people cannot reliably judge the veracity of claims simply by gauging the credibility of the speaker did not deter them. Nor did the fact that studies have repeatedly shown that “100% certain” eyewitness testimony is no guarantee that a person’s memory is accurate.The fact that others had arrived at completely different conclusions from their own after viewing the same testimony seems not to have shaken their faith in their own judgments either. Rather, it suggested only that these other viewers who saw something different must be either fools or scoundrels.I have nothing to say about the substance of either person’s testimony, other than to remind us, in retrospect, of something of which we need to remind ourselves before every “trial of the century” of the sort we get every three or four years in this country: Trials are not the place for working out our social grievances and anxieties.An obvious rejoinder would be that Judge Kavanaugh is not “on trial.”  But isn’t he?  Can anyone seriously say he is not?  As Alan Dershowitz has argued in a recent Wall Street Journal article:Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy and a reputation earned over many decades as a lawyer and judge.  If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a ‘convicted’ rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.The court of public opinion is different from a court of law, but it too is an important court. Wouldn’t anyone rather be convicted in a court of law of drunken driving—also a serious crime—than convicted in the court of public opinion of being a serial sex predator? Many would even rather go to prison for a year on drunken driving charges than be labeled a sexual predator for life. In a nation dedicated to fairness and due process, explicit constitutional rights often serve as a metaphor and guide in the kind of basic fairness we demand even in nonlegal proceedings. That model should operate here as well.Indeed, “being disqualified based on a false accusation of a crime would be a violation of the fundamental right to fairness.”In some other setting—say, in the hands of a great novelist—someone like Karamazov (either the bad father or the dissolute son) may represent “what’s wrong with Russia.” But in a court of law or any other legal proceeding, Dmitri Karamazov is simply himself—a man who has either killed his father or not. If he has, then he should be punished. If he has not, then there is no injustice in not punishing him.We must seek to identify the actual perpetrator of a crime, whether it is the murder of a despicable old Russian aristocrat or the sexual assault of an inebriated young woman.  If we allow such cases to be about “what’s wrong with the country” rather than a search to know what actually happened, then all such proceedings, whether they are held in a courtroom or on a college campus, become a legal mask for creating a scapegoat.  And as René Girard has made clear, scapegoating is not about the guilt or innocence of this particular man or woman—that question becomes immaterial as long as we as a society can pour out our guilt, our unclean feelings, our impure souls, upon him, and then cast him into the wilderness so that we may at long last be clean again.The problem is, the Scottsboro Boys did not “stand for” the dangers that black men posed to white women in 1931 any more than Alfred Dreyfus “stood for” the dangers Jews posed to France in 1901. We don’t hang men like Adolf Eichmann because the Holocaust disgusts us; we hanged Eichmann because he committed crimes against humanity. We need to make sure the guilty are punished. But if the persons we accuse did not commit the crimes for which they are accused, and we hang them anyway as a therapy for our collective guilt, then we will have become what we condemn: victimizers of the innocent.

Justice For AllLegal proceedings are an imperfect process. But I would rather trust those rigorous rules of due process to arrive at a clear understanding of the truth of the matter than trust that awesome responsibility to the ever-excitable denizens of the contemporary media circus or those who feed their insatiable appetite for sleaze in the political class.

This is why political “show trials” are affairs for totalitarian states, not for republics governed by respect for the law.Legal proceedings are not circuses or soap operas for our amusement and titillation. Nor should we view them as a sideshow to the great emotional debates of our age. Legal proceedings are disturbingly particular in their details, and as a result, unusually dull to those who lack patience for such matters. The health of a society is shown not when they’ve forced judges and juries (or Senators and public opinion) into what they’ve convinced themselves is the “right” outcome.

Health is shown, rather, when society has had the patience to allow “due process,” with all its faults and restrictions, to do the limited job it was designed to do.Justice isn’t only something judges and juries do. Whether a person is in a courtroom arguing for his or her life or in a hearing arguing in defense of his or her reputation, justice is still necessary. It is something we must establish every day—in the way we live with others, in the way we speak humbly and attend to all the facts patiently, in deference to reality and the truth of things.
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Randall B. Smith is the Scanlan Endowed Professor of Theology at the University of St. Thomas in Houston, Texas, where he teaches the core class on moral theology, “Christ and the Moral Life.” He is also the author of Reading the Sermons of Thomas Aquinas: A Beginner’s Guide (Emmaus, 2016) and the forthcoming Principia: Aquinas, Bonaventure, and the Culture of Preaching and Prologues at Paris. He is currently at work on an introductory text on moral theology. This essay is adapted from a previous Public Discourse essay. 

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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