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.
Nothing negative 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 Thomas.
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 were enormous.
Clarence Thomas 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.
THE 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 ever used.
Yet I am glad I left in 1979. The lacrosse team case has reinforced my opinion.
The miscarriage 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 class families.
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 naïve idiots? To ask the question is to answer it.
What should 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.
Their parents 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.
In Deuteronomy 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.
One 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.
It contains 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.
Second, the 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 victims.
PLAYING 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.
The guilty 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, you see.
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.
The judicial 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.
The answer 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.
Copyright © 2007 LewRockwell.com