Miss Manners Tours The Killing Fields

Let me see if I get this right: We take an eighteen-year-old kid, break down his inhibitions against killing another person, train him to kill, place him in harm’s way and require him to kill or be killed, and then expect what? That he will blow the smoke from his smoking barrel, walk away from the battlefield with a smile on his face, and not suffer aftershocks? Warriors will suffer road rage. I suspect it goes with the turf.

The furor over the Internet film of several Marines urinating on the corpses of three Taliban fighters they had just killed in battle is disturbing. No question about it. But to suggest it is a war crime, or the moral equivalent of sacrilege, is going too far.

We’ve been at war in Atghanistan for a decade. There is no end in sight to the conflict, the longest ever in American history. Thousands of young men have been pushed through basic training in the dark arts of war. Some have been killed as their comrades stood by; others have been maimed for life. I suspect not one of these warriors has walked away without deep psychological wounds. Who would it expect otherwise?

The recent Internet videotape has gone viral. The Council on American-Islamic Relations wants the Marines punished to the full extent of the law. The Marine Corps acknowledges that the video appears to be authentic, and promises a full investigation. The young men filmed will no doubt be cashiered some time soon while the military sorts it out.

I’ve never served in the military and have not been trained to kill. Perhaps it is possible to make homicide seem as though it is all in a days work. But I doubt it. On the few occasions in my adult life in which I have faced an immanent threat of physical harm, some primitive switch was flicked. I suspect I could kill if pressed, but at great intra-psychic cost. I suspect that when faced with death at the hands of another all of us are little more than animals, instinctually fighting to survive and re-enacting primordial rituals to demonstrate our dominance over the threat. Like dogs, we mark out territory.

When I see these Marines urinating on the men who only moments before had tried to kill them, I am not shocked. The act demonstrates contempt, to be sure. And it may well be inconsistent with the warrior’s code of respect due to a fallen adversary. But it does not appear to be the calculated and deliberate acts of men bent on mayhem. It looks more like boys happy still to be alive and engaging in a ritual meant to minimize and trivialize what had only moments earlier been a lethal threat. They will face death again at the hands of others.

War is savage and barbaric. It is, however, one of the world’s oldest pastimes. We kid ourselves if we think we can make killing machines of people and that, once blood has been shed, the killer can simply walk away from the gore as if it were nothing other than a day in a different sort of office.

I recall during the Vietnam War watching the evening news. I saw men maimed and writhing in agony as medics tried to staunch devastating wounds. I saw fear on the faces of boys just a few years older than me as they shot to kill. We all watched the news and what we saw mobilized us not against the soldiers, but against the war. Policymakers wondered aloud whether showing such graphic footage of the quotidian realities of mortal conflict served the public interest. If we had to look at the bitter reality of wars, why we might not want to wage them.

Times have changed. We now embed reporters with fighting units, the better to record it all. And the soldiers themselves have access to inexpensive and easy to use video cameras. We have far more close-ups of what war does to people than ever before. It is no wonder we are troubled by what we see.

Odds are the young men in this film will be strung up by military authorities. They will be treated like political road kill. Expect them to stuck in a military brig right next to Bradley Manning, and to be presumed guilty by the commanders who told them to run headlong into the arms of death. We will sacrifice them to make ourselves feel better.

But larger questions remain. Questions about post-traumatic stress disorder, about the support and care we give to young men told to risk more than the rest of us can imagine. And we really don’t know just how common such acts of desecration really are. All we know is that on one occasion a fellow solider, for whatever reasons, decided to publish the tape to the world. I wonder what routine foxhole savagery we’ve been spared in this and countless other battles?

The soldiers will be prosecuted. Their trial should be public. A key question at trial will be the matter of selective prosecution. Were these men prosecuted for what they did, or because there is a public record of what took place? I suspect it is the latter, and that we hypocrites don’t mind a little desecration in the service of military necessity. We just don’t want to be forced to watch it. Open the records. Tell us this never happened before; that it is unprecedented. We all know better. We know war is hell, and those who survive are singed forever by hellfire.

Do we really think Miss Manners should serve as a drill instructor?


Perry v. NH: Finding Facts In La-La Land

It should surprise no one that the lone vote casting doubt on the reliability of eyewitness testimony came from the only United States Supreme Court justice with experience actually trying cases. Most justices think facts are something you read about in a textbook, or in a legal brief. Only Sonia Sotomayor has actually looked a jury in the eye and asked them for something. She alone wants the nation’s trial courts to take special pains to make sure eyewitness testimony is more than mere finger pointing.

The 8-1 vote in Perry v. New Hampshire rejected the claim that there is sometimes something suspect about eyewitness testimony, The eight justices voting in the majority have no trial experience. They are like surgeons who have read all the right books, but have never dared touch a body. Just why the highest court in the land is virtually devoid of lawyers who have done more than read about what goes on in a courtroom is troubling. A court governed by principled theoreticians is a court out of touch with reality. “The life of the law has not been logic,” Oliver Wendell Holmes, Jr., warned more than a century ago, “it has been experience.”

The lack of experience shows in cases like Mr. Perry’s.

Mr. Perry was identified at a so-called show-up identification. Police suspected he had stolen something. They brought a woman who claimed to see the theft to the scene. There stood Mr. Perry, the lone black man in the crowd. He was standing next to a white police officer. The woman identified him. Is anyone surprised by this?

This identification was reliable enough for the Supreme Court. It chose to ignore the mounting evidence that eyewitness testimony is often flawed. Of the first 250 exonerations obtained by the Innocence Project through the use of DNA evidence, 76 of the defendants had been identified by eyewitnesses. Clearly, there is a problem with eyewitness testimony. Only the naive and willfully blind accept eyewitness testimony at face value.

Don’t gasp, roll your eyes, and exclaim that I am on just another rant. Even the NFL and college football knows there is a problem. In football’s prime-time bread and circus, the use of instant replays to review the decisions of referees, linesmen and umpires who are paid to be vigilant is common. In the games we play on the gridiron we want to be sure that there are special procedures in place to make sure the right team wins. Do we care more about football than the integrity of the criminal justice system?

I recall in law school a contracts professor brushing off a question by observing that it posed “a mere matter of fact.” The man was Harvard trained, a Brahmin of sorts. He regarded facts as things that merely appeared in the reported appellate court decisions he read, digested and regurgitated. The grueling work of determining what the facts are in a given case was beneath him. I admired the airy confidence of the man, and thought him profound; today I recognize him as little more than a moral and intellectual cripple, hobbling along trying to make sense of a world he has only read about. You don’t buy facts at the corner store.

Any trial lawyer will tell you that a courtroom is a strange and mysterious place. Competing narratives seek to frame and reframe an issue that a judge or jury is to determine. The fact finders are never witnesses to what is testified about in a courtroom. These strangers rely on witnesses to tell them what to believe. I fear that from time to time the better narrative wins, whether that story corresponds to what actually occurred. Courtrooms are dangerous places. Innocent people are convicted.

What sense does it make to put a judge on the bench if the judge has never tried a case? I admire Sotomayor because she has at least looked a jury in the eye and asked for something. She knows the look and feel of our social fact factories. She knows how easily juries can be swayed and even misled.  Sotomayor spent only a few years in a courtroom, and that as a prosecutor. There is not a single criminal defense lawyer on the Supreme Court. I do not understand how a president can behold a court without a man or woman who has dedicated a lifetime to defending people as complete.

We kid ourselves if we think the justice is done in every case. Sometimes the result of a trial is little more than a parlor trick. It is not asking too much to assure that evidence is tested before reliability before it is shown to a jury. Only a justice  lacking real world experience in a courtroom would conclude otherwise.

Reprinted courtesy of the Connecticut Law Tribune.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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