See For Yourself

Look! Off in the distance. I don't believe it. It's Elvis. He's coming towards me. I'm sure of it. But they say he died years ago. I think it was 1977. I didn't believe it then and I don't believe it now. Certainly not since that time several years ago when I saw him from the train I was on. It was going fairly quickly but I'm sure I saw him through a restaurant window. He was eating with Amelia Earhart and Judge Crater. There was no doubt about it, however the next stop was in a city many miles from where I had seen him, so there was no going back. This time, though, he's coming toward me so I'll meet him and have a chance to speak to him. What an opportunity.

He's coming closer. I still can't make out the details. He's carrying something. Must be his guitar. This is great. And today's his birthday. I knew the King didn't die.

He's closer now. And a little clearer. That thing in his hand is probably a shopping bag rather than a guitar case, but there's no question in my mind that it's Elvis.

It's not Elvis. He's much closer now and I can see his build and his face. And his bald head. It's Harry Perkanovich from down the block. Must have been sent out shopping by his wife. From up close he doesn't look at all like Elvis. And I can tell you from the time my wife and I visited his house that he's not musical. He tried playing a song for us when we were there, but the comb and the tissue paper sounded awful. Almost as bad as his voice. His only talent is for making us suffer. (Of course we complimented him.) But from a distance I could have sworn he was my favorite singer. I was certain it was Elvis. I used to be a big fan of his.

You see what you want to see. And if some information is lacking, you fill it in. Most of us deal better with certainty than doubt. And seeing someone or something from a distance provides the opportunity. I suspect that the phenomenon is common. We see what we want to see and what we're prepared to see. Or, often, what we expect to see or what we're told we'll see. Any lawyer knows that an “eye witness” is only reliable if his testimony supports the case. Otherwise there are numerous explanations for his obvious error.

And the same is true of hearing. Hear a snippet of a conversation and you can recreate the whole thing. Whether that's what was said or not. Even if you mis-hear something, what you think you heard becomes fact. Have you ever played “Telephone?”

We can't trust our memories either – consider déjà vu for example. The problem becomes obvious when we compare recollections with those of someone else who shared an experience but remembers it very differently from the way that we do. One of us is wrong. (Or maybe both of us.) Yet when we're not comparing notes there won't be any doubt in either of our minds that we remember exactly what happened. For some, the precision and the detail of the memory become more clear with each retelling of the event.

And for some, any later documentation – a photograph, or the report of someone else – is likely to be added to the memory and reported subsequently as something that is remembered clearly as a first-hand observation. It's not a lie, but a trick of the mind. And it's another potential source of misinformation that may bedevil a legal proceeding. Even if witnesses and jury members are cautioned against the consideration of any information they may have heard or seen about the events at issue, the possibility exists that material of just that sort will be incorporated into the witness's memory or into the juror's knowledge base and affect the outcome of the trial.

Another example of implanted memory is the result of hypnosis, especially “past life regression” and “recovered-memory therapy,” where what is brought up as an unshakable memory may result from suggestion or from incidental unrelated knowledge the subject may have.

What it all boils down to is that our senses, minds, and our memories are less than perfect. Yet we don't doubt them. We often rely on them to the exclusion of “reality.” That's usually a mistake, but not always. Fortunately there are times when we're right and “reality” is nothing more than what the majority incorrectly remember. Perhaps this time it was Perkanovich rather than Presley, but I know that Elvis is still alive.

Happy Birthday.

Innocent Until Proven Guilty

Article [VI]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury (emphasis added) of the State and district wherein the crime shall have been committed ...

That's the Constitution's take on the rights of the accused. It can be found in the Bill of Rights, and, along with the Fifth Amendment, which provides that no person shall

be subject for the same offence (sic) to be twice put in jeopardy of life or limb ...

I'll deal with the latter consideration presently (and briefly), but for the moment it's worth considering the dictates set by the Sixth Amendment as they apply to George Zimmerman.

On February 26, 2012, Zimmerman killed Trayvon Martin. The details of that killing – a killing that is not in dispute – are not relevant to this discussion, nor are the strong feelings both of his supporters and his detractors. But it is reasonable to question whether a proceeding that began more than sixteen months after the incident represents a “speedy trial.” It is said that “justice delayed is justice denied,” but it is less clear – at least to me – what the optimal time is between such an incident and its judicial resolution.

In any event, it has been resolved. And “by an impartial jury of the State and district wherein the crime shall have been committed.” Here the Constitution is, in my view, making an assumption of what is sometimes the issue to be being adjudicated. By its decision, the impartial jury specified that no crime had been committed. Because Zimmerman had not denied the killing, there was never a question of whether the “right” man was accused, only whether he had committed a crime. In this respect the situation was different from that involving O. J. Simpson, who had denied, and was found not guilty of committing what was clearly a crime. (Not everyone agreed with the decision, but by law he was not guilty.)

So it has been argued and resolved. And Zimmerman has been acquitted of the charges against him. It should be over, but it's not. There are many who believe that he is guilty, notwithstanding the judgment of the the jury. For them, the principle is not “innocent until proven guilty.” It isn't even “guilty until proven innocent.” Their view prior to the trial – “guilty, period” – was not, and could not be, changed by the trial and the verdict. That view was nourished by pre-trial publicity, which certainly sold a lot of newspapers, but has no legal standing. It is understandable that the victim's (and many would question the “victim” status) family would hold such an opinion, and would have taken it even before the trial, but it is regrettable that so many others would do so as well, and reject the jury's verdict after the legal issues have been argued. Apparently their minds were made up as soon as they learned of the incident. There were enough stories and opinions expressed by the media to make the trial itself superfluous – and an acquittal is, for them, certainly a perversion of justice. Even so, the Fifth Amendment, which precludes double jeopardy, should end the issue.

But it doesn't. Those who disagree with the jury are attempting to have the defendant tried again. While Zimmerman cannot “be subject for the same offence (sic) to be twice put in jeopardy of life or limb,” the same incident can be labeled as a civil rights violation which would have serious consequences for him which would not put him in jeopardy of life or limb, but would certainly cause him great grief and expense, and extend his “speedy trial.”

I don't mean to minimize, in any way, the grief of the family for the loss of their son. And I am neither qualified to evaluate the specifics of the case nor to judge the impartiality of the jury deliberations, but as far as I can see, the jury system has served us well and should be respected. Sometimes the jury gets it wrong, sometimes there is jury tampering or prosecutorial misconduct, but these are a small minority of cases and there is no evidence of any of those having occurred in this case. The only problem is that a vocal group is unhappy with the verdict. And that is enough reason to find other grounds for trying the defendant. Or at least harassing him.

That may not be what the Founding Fathers had in mind, but they didn't count on American “know-how” when it came to finding loopholes. Especially for those who consider their sense of justice keener than that of a jury of their peers.