In 1991, the
liberals in the Senate allowed a black woman lawyer to confront
Clarence Thomas on national television with respect to alleged sexual
matters. He called it a high-tech lynching.
The Duke case
reminds me of that event, which Thomas survived only because a dozen
of his female employees came to his defense at the end of days of
hearings. The Senator from Ohio, Howard Metzenbaum, tried to keep
them from speaking, but Senator Biden said, “A deal’s a deal.” Thomas
is on the Supreme Court only because of that act of political honesty.
The Senate confirmed him by a close vote of 52 to 48.
happened to Thomas’ accusers. But the dispute was not tried in a
court of law. It was tried in the court of public opinion. Anita
Hill had been forced to testify because of a leak to the press by
one of Metzenbaum’s staffers about her private accusation against
The woman who
brought accusations against the lacrosse players was not pressured
to do this. Neither was the local prosecutor, who publicized her
accusations, even in the face of mounting evidence that they could
not possibly be true.
The Duke players
survived because their parents had deep pockets. The legal fees
in 1992 had one of the most eloquent defenders any innocent man
ever had: Edith
Efron. I hope the Duke lacrosse players get someone as good,
though this is unlikely. Efron was a master.
MEDIA TRIED THIS CASE
I used to live
in Durham. It was a wonderful place to live. I used to drive to
Duke University and use its twin libraries — main and theological
— as a glorious free rider. It was the finest library system I have
Yet I am glad
I left in 1979. The lacrosse team case has reinforced my opinion.
of justice in that case will stick for decades on both the city
and the university. Both will be remembered as places where justice
was at risk, where three young men were not treated publicly as
innocent until proven guilty. No matter how good the Duke basketball
team is, the Duke lacrosse team of 2006 will remain its most famous
team in the opinion of people who believe in justice. That dark
spot will not be washed away anytime soon. Duke is politically liberal,
and the results were plain to see.
Yet I suspect
that the city of Durham is no exception. In every community, this
kind of thing can go on and will go on. The cost of defending yourself
if you get targeted is astronomical. The families that sent their
sons to Duke have paid legal fees that would bankrupt upper middle
The media went
along with this from day one. I knew what their perspective was
when the accuser was identified by the media as an exotic dancer.
What is an exotic dancer? A stripper. Only when the young men were
officially cleared by the state’s highest judicial officer did the
media accurately identify her occupation.
Do the media
treat us as if were are nave idiots? To ask the question is to
be done now? The Bible is quite clear about what should be done.
But it is clear in a book that modern men rarely read and scoff
at when they do read it: the book of Deuteronomy.
This book was
Moses’ reading and exposition of the Ten Commandments (Deut. 5)
to the generation that was about to enter Canaan.
had died in the wilderness. This book constitutes the book of covenant
renewal for Israel, the book of inheritance. What their parents
had no believed and were not willing to obey, Moses warned them,
they must obey.
19, there appears the finest summary of civil justice as can be
found in any culture in so short a space. The rule is clear: the
penalty that would have been imposed on the innocent as a result
of a false witness must be imposed on the false witness.
witness shall not rise up against a man for any iniquity, or for
any sin, in any sin that he sinneth: at the mouth of two witnesses,
or at the mouth of three witnesses, shall the matter be established.
If a false witness rise up against any man to testify against him
that which is wrong; Then both the men, between whom the controversy
is, shall stand before the LORD, before the priests and the judges,
which shall be in those days; And the judges shall make diligent
inquisition: and, behold, if the witness be a false witness, and
hath testified falsely against his brother; Then shall ye do unto
him, as he had thought to have done unto his brother: so shalt thou
put the evil away from among you. And those which remain shall hear,
and fear, and shall henceforth commit no more any such evil among
you. And thine eye shall not pity; but life shall go for life, eye
for eye, tooth for tooth, hand for hand, foot for foot (Deut. 19:15—21).
This is so simple
and should be so obvious that no society should ignore or forget it.
But I know of no society that enforces it.
that most politically incorrect of all judicial phrases in the modern
world: an eye for an eye. The evil of it! Worse, its great
evil is compounded by the introduction: “And thine eye shall not
pity.” A world without pity. Unthinkable!
What was Moses’
point? First and foremost, the rights of the innocent must be protected
by law. What are rights? They are legal immunities from interference
by the state and by violent people.
state must be put on a tight chain. So must violent people who use
lies to call state violence down on the heads of their innocent
THE MENTAL HEALTH CARD
C. S. Lewis
wrote in The
Abolition of Man and other books that when the state becomes
an agency of healing rather than an agency of justice, no man is
safe. The judicially innocent person will not receive legal protection
if he is regarded as mentally ill by the state.
person may face punishment vastly beyond the scope of his crime.
He can legally be punished until he is healed, which may be forever
if the state’s agents of mental healing so deem. The most widely
known modern work of fiction on this theme is One
Flew Over the Cuckoo’s Nest. Jack Nicholson played the victim.
It was an unforgettable role. Lewis would have understood it and
applauded, I think. Nurse Rathced was well named. Her ratchet was
always tightening. Ken Kesey understood the concept of psychological
healing in the criminal justice system.
The Duke players
were the victims of a false witness. So, what will save her from
justice? The state’s attorney general has already greased the skids
of justice away from justice. He implied that she is mentally disturbed.
She is therefore not guilty of false witness. Not really. And so
the healers can do what they will with her: lock her up forever
or let her roam the streets. It’s all a matter of mental health,
It’s most of
all a matter of votes. The state will not play the race card with
this woman. Instead, it will play the mental health card.
But what will
prosecutor Nifong’s likely defense of his televised press conferences,
where he tried his case in the court of public opinion? What will
be his penalty? A lost career, surely, and enormous legal fees.
But he will not spend three decades in prison, with possible time
off for good behavior. That which he sought to impose on his intended
victims will not be his fate.
system will have pity on him. Why? Because it is based, as R. J.
Rushdoony described it, on what he called the politics of guilt
and pity. The modern welfare state rests on this principle. Justice
is assessed today in terms of social position or race or political
affirmation. It is different strokes for different folks.
Ayn Rand also
understood this. She wrote that when a nation passes so many laws
that everyone breaks lots of them, everyone becomes guilty. Emotionally
guilty people are more easily manipulated by the state.
to the politics of guilt and pity can be found in Deuteronomy. But
people who think they can use the politics of guilt and pity to
further their power-enhancing ends will not hear of such judicial
barbarism as an eye for an eye, for they understand its real meaning:
The punishment must fit the crime. This principle would hamper
the modern messianic healer state. The healers do not want that
kind of chain on their agency of healing.
When the judges
of a nation claim to be holier than God because they are more merciful
than God, its citizens are in great jeopardy. When they applaud
the judges for their sagacity, they have condemned themselves.