Forensic Writer

The Guilt Project by Vanessa Place (part two)

Note: My apologies for the delay in posting.  It has been an insanely busy week at work. Throw in a bout of insomnia (still desperate for some shut-eye), and the blog slows down. I suspect I will fail to do The Guilt Project justice in this exhausted, frenzied state, but here goes nothing.

In my earlier response to Vanessa Place's forthcoming book, The Guilt Project: Rape, Morality, and Law, I posed a question about whether intentions matter in the context of sex offender civil commitments.  That is, does it make a lick of difference if civil commitments are based upon an incapacitation model (in which the goal is to lock up offenders for the longest possible time in order to prevent future crimes), or a medical model (in which the goal is treatment and rehabilitation).  And is it even possible to attempt both at the same time - as seems to occur in the US - given their inherent conflicts?

Place (2010) frames her critique in terms of how these conflicting models affect sex offenders' rights at the start and finish line (assuming there ever is a finish line, aside from death):

I understand the use of statistical analysis as a legitimate measure of probability.  But the probabilities at issue in SVP determination can only be measured generally and retroactively.  Not prospectively or individually.  And justice, above all else, must be rendered individually. (p. 76)

We have to allow for real rehabilitation or true conversion, the fact of the thunderclap, the lightning bolt, the heaving collapse under the awful knowledge of absolute guilt, and the ridiculous hope of one person's puny atonement, one insignificant redemption that constitutes that flash of transcendence that passes for transcendence in our drive-by lives. (p.76)

By "statistical analysis," Place means the standardized, actuarial assessments used in conjunction with the diagnosis of "mental disorder" - instruments such as the Static-99, a risk assessment test used to calculate the probability of recidivism.  As it stands, the "diagnostic" process often makes reference to the Static-99 results (Place, 2010)- a circular process in which the test results are confirmed by ... the test results.

Take these two points - standardized testing and the inability to recognize the "thunderclap" (Place, 2010, p. 76) - together, and you have a real conundrum when it comes to the concept of incapacitation.  Incapacitation, after all, is not concerned with curing offenders; it is only concerned with locking them up.  But because the Sexually Violent Predator status relies (at least partially) on a psychological diagnosis - and, of course, results in commitment to a mental health facility - it has an inherently medical component.  The entire process rests on the assumption that sexually violent predators have a mental disorder that makes them dangerous to society at large.  But unlike the medical model of crime, this process does not seem concerned with "treating" the disorder and "curing" the offender of his "criminal mind."  If it were concerned with this, there would be, as Place (2010) writes so well, room for "the fact of the thunderclap" (p. 76).

I find Place's suggestion to rely on true clinical diagnosis - individual therapy, individual diagnosis, not standardized tests - intriguing because it suggests a "middle way." Rather than the typical either-or debate (should we or shouldn't we commit offenders?), she proposes a process that would, at the very least, take offenders for the complex, unique individuals that they are. Considering that a lifetime of freedom is at stake, it seems that individualized diagnosis is the only way to ensure "due process." Think of it this way:  Would you want your whole future determined by a standardized test?  How about a test that was not even designed for that purpose?  How about a test that only measures "static" (in other words: set in stone) aspects of your personality?

Naysayers might suspect Place of looking for an easier target in court, but she is hardly playing it safe for the defense: Place admits that individualized clinical assessment would actually be a real pain in the ass to attack. "It would be," she writes, "professionally harder for me to tear apart something with the sound of informed common sense than it is to go for the more vulnerable statistical vein" (Place, 2010, p. 75).

Her idea is appealing in terms of the "medical model" for justice as well. Perhaps, with true clinical assessment and therapy, sexually violent predators can be more accurately "diagnosed" and therefore more effectively "treated" - individualized treatment to go with that individualized justice. 

But here is where I get skeptical. This clinical process would rely on the DSM-IV, the diagnostic manual of the American Psychiatric Association.  But the DSM-IV does not necessarily mesh neatly with the law. As Levenson (2004) writes, the DSM-IV "specifies that Pedophilia generally involves prepubescent children. However, all states have statutes rendering it unlawful for an adult to engage in sexual activity with a child under age 16, and many offenders being considered for civil commitment have adolescent victims" (p.360) - emphasis added.

To muddy the waters further, Levenson (2004) cites a study that examined offenders diagnosed with sexual sadism as compared to those without the diagnosis. The results? Offenders deemed "sexual sadists" were the least likely to commit the particular acts associated with that diagnosis. In other words, the clinical assessments failed to get it right.  Anyone who has ever been to a shrink will not be surprised by this. Clinical psychology is notoriously subjective. To wit: Levenson (2004) also looked closely at SVP determinations in Florida, and found that "reliability was poor for most diagnoses" (p. 363). Different evaluators came to different diagnoses.

On the other hand, reliability for the actuarial instruments - the risk assessment tools, such as the Static-99 - was quite high (Levenson, 2004). In other words, separate evaluators consistently rated offenders with the same "score" on the risk assessment.  Does that mean the risk assessment is better than clinical diagnosis?  Not really.  Accuracy and reliability are two very different animals. If you weigh yourself over & over on a poorly calibrated scale, you might get the same result, but it will not be an accurate one. 

So my question is this: If individualized justice means unreliable diagnostic procedures, is it any better than the system we have now? 

Again, it all depends on the aim.  If the aim is to treat, then subjectivity is not as much of a problem. At the very least, it would allow for offenders to rehabilitate and change.  And the defense and prosecution could potentially present opposite diagnoses.  On the other hand, if the aim is to incapacitate, then reliability matters, because you need "confirmable" results to lock someone up and throw away the key.

Either way, the system will undoubtedly fail someone.  The question is, on which side do we want it to err?  I always thought reliability was at least one guarantee of "due process," but now, I am not so sure.

Next up: Place's chapter about pimps. 

References

Levenson, J. (2004, August). Reliability of sexually violent predator civil commitment criteria in Florida.

    Law and Human Behavior 28(4), 357-368. Retrieved on January 18, 2010, from ProQuest Criminal

    Justice.

Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press. (forthcoming)

The Guilt Project: A Response (part one)

As mentioned in my previous post about The Guilt Project: Rape, Morality, and Law by Vanessa Place, I plan to spend several posts responding to chapters and issues in the book.  It seems to me that this is one of the best ways to do the book justice: to wrestle with the questions it presents.

The book is divided into four major sections:

Section I: Guilt and Me

Section II: Guilt and Science

Section III: Guilt and Culture

Section IV: Guilt and Politics

The "Guilt and Science" section rightly - and brilliantly - begins with a chapter about DNA evidence and the probability game it entails. That probability game, it turns out, is "most analytically thorny" where it concerns a "mixed-source sample" (Place, 2010, p. 43).  By calling into question the most ironclad of forensic science, Place makes it possible for readers to accept questions and problems in other areas of procedural justice and law, too.  After all, if even DNA has its problems, what other dirt might be lurking under the rug?

I suppose it depends on your definition of dirt.  Having studied criminology for a time, my definition of dirt is pretty open-minded.

I will start with the other chapter in the "Guilt and Science" section, entitled "Sexually Violent Predators: The Parapsychology of Guilt," which explores involuntary commitments for sexually violent predators.  Most Americans respond to civil commitment laws the same way they do DNA evidence: unflinching, unquestioning belief. And with good reason.  Who wants a real-life bogeyman man lurking by the middle-school bus stop?

First, some background is in order: In several states, the law allows for the civil commitment of sex offenders who have been designated Sexually Violent Predators (SVP).  In practice, this means commitment to a state mental hospital for an indefinite period of time - often, for life. The designation of SVP might seem simple enough on its face; after all, these offenders have already been found guilty of a sex crime. Doesn't that make them predators by definition?  Not quite.  The designation involves more than just a review of the offender's prior acts. Otherwise, it would never pass constitutional muster. After all, civil commitment occurs after an offender does his time for the crime.

The Supreme Court has specified that offenders who are designated SVP must have "a mental abnormality or personality disorder predisposing the individual to sexual violence, and a likelihood of future sexually violent behavior" (Levenson, 2004, p. 357).  Since the offender can lose his liberty as a result of the SVP designation, due process is in order.  In California, where Place (2010) practices, SVP designation requires "two or more sexually violent offenses" and "a diagnosed mental disorder making him a present danger to others" + being "likely to engage in sexually violent criminal behavior in the near future" (p. 59).

Neat and Tidy Theories

When I studied criminology, my classes approached civil commitments in terms of correctional strategies + theories about the root causes of crime. Ideally, a theory about the roots of crime led to a related correctional theory to address that root cause.  In fact, a good portion of our studies were dedicated to the policy implications of theories about "born" vs. "made" criminals - nature vs. nurture. 

We studied commitments primarily as an incapacitation theory phenomenon. Incapacitation is fairly simple: Lock up the bad guys for as long as possible, and they cannot re-offend (at least, not outside the prison walls - anything on the inside is apparently fair game).   Mandatory life sentences, truth in sentencing, and three-strikes-you're-out-laws: incapacitation, all of them (Lilly, Cullen, & Ball, 2002). Where such sentences do not exist, the law has found a way to incapacitate sex offenders all the same: through civil commitments. 

Incapacitation theories are not concerned with rehabilitation. The sole aim is to stop criminals from committing future crimes (Lilly, Cullen, & Ball, 2002).  Note that this is entirely different from a "just desserts" approach, wherein punishment is inflicted as harshly as possible solely for retribution (although, there is obvious overlap here - incapacitation can be retributive & vice versa). Incapacitation theories, by their nature, believe criminals "are beyond reform and must be incapacitated behind thick walls and sturdy bars" (Lilly, Cullen & Ball, 2002, p. 227).

The problem with civil-commitment-as-incapacitation - at least from a criminological perspective - is that it runs headlong into an entirely incompatible correctional and criminological theory: the medical model of crime and corrections.  The medical model, predictably, sees crime as treatable. If you can cure the hormone imbalance or psychosis or whatever, then you can stop an offender from striking again. Rehabilitation, obviously, drives correctional programming under this theory.

When I was a criminology student, the question of civil commitments made me queasy precisely because of this clash of correctional and criminological theories. I liked my theoretical underpinnings neat, tidy, and logically coherent.  (Oh, the idealism of naive criminology students! If only we could land on that one perfect theory. We could stop crime and create the perfect correctional system at the same time.  Never mind that those two ideals are incompatible, too.)

Specifically, I wondered: Would the state attempt to "treat" or even "cure" an offender if it meant releasing him out of custody?  After all, the point is incapacitation, not rehabilitation. (Or is it?) Are doctors being asked to abandon their oaths and care for the state rather than the patient? Can treatment be ethically administered in these conditions?  How could anyone know if a "patient" is "cured" enough to be released (and what did "cured enough" mean)?

Theory vs. Practice in a Procedural Context

The Guilt Project approaches the issue in a different context: procedural justice.  While criminology & procedural justice/law do overlap, they are not always one and the same.  Criminology certainly has direct policy implications (particularly where it concerns correctional programming or lack thereof), but it does not always (and I would contend, rarely) considers questions of constitutional rights.  Place's (2010) chapter challenges readers to consider several issues:

If the courts can qualify "crime as a mental disorder, then real treatment would be the protocol" (p.73)  But are the state hospitals engaging in "real treatment" or just plain "warehousing" (p. 73)?

Can the current testing instruments and diagnostic procedures + expert testimony accurately (and beyond reasonable doubt) identify sexually violent predators?

Are the same instruments incapable of detecting genuine rehabilitation?

Is there any way to know that incapacitation policies even prevent further sex crimes in the first place?

That third question is the one that haunts me, and when you really think about it, it drags most of the others with it.  If the state cannot detect (or simply refuses to acknowledge) legitimate rehabilitation, it likewise has no yardstick by which to measure its "treatment," which implies it has no intention to treat in the first place.

But the second question is also key when it comes to bringing theory & practice together: As Place (2010) eloquently points out, standardized tests are hardly individual, which automatically places them in conflict with the idea of "real treatment" (p.73) - and importantly, constitutional protections. 

So the question I have is this: Do intentions matter in a procedural context?  Does the theory need to match the practice?  And if it doesn't, what are the consequences?  This, of course, is encapsulated in those questions about the diagnostic processes, testing instruments, and expert testimony. So I will start there on the next post and try my best to wrestle with "intentions."

References

Levenson, J. (2004, August). Reliability of sexually violent predator civil commitment criteria in Florida.

    Law and Human Behavior 28(4), 357-368. Retrieved on January 18, 2010, from ProQuest Criminal

    Justice.

Lilly R.J., Cullen, F. T., & Ball, R.A. (2002). Criminological theory: Context and consequences. London:

    Sage.

Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press. (forthcoming)

The Guilt Project by Vanessa Place : Why this book matters

In this Nancy Grace culture, in which suspects are all guilty until proven worthy of being considered innocent (usually by producing the requisite number of tears or volunteering to be hooked up to electrodes for a lie detector test, or forgoing the representation of a good attorney, despite being entitled to said representation), it is rare to find a discussion about crime & justice that avoids the strict dichotomy of "good vs. evil" or "tough-on-crime vs. criminal coddling." This is especially true when it comes to sex offenders: legislators are for the children or against them; against the sex offenders or coddling them.  While the emotions driving these sentiments are certainly understandable, given the heinousness of sex crimes and the horrors that victims face, they are not necessarily healthy for public policy - especially where it concerns basic constitutional protections.  This is why Vanessa Place's book, The Guilt Project: Rape, Morality, and Law is so important. It asks questions - legal, cultural, ethical, and moral - that heretofore have been swept under the rug. Even if one disagrees vigorously (and righteously) with all of Place's contentions, questions, criticisms, and legal interpretations, the point is to have the conversation.

Place, an appellate criminal defense attorney who specializes in sex offenders and sexually violent predators, never pretends that the great majority of her clients are innocent (legally or factually, although some may be the latter), or that they are "good men."  In fact, she refers to them as the "very bad men" that many Americans fear. "Most of my clients," she writes, "are factually guilty by virtue of their acts; all are legally guilty by virtue of their convictions.  They are the very bad men, those who trigger the question, 'How can you defend people like that, knowing that they're guilty?'" But for Place, the question is larger than that.  For in this Nancy Grace and Dateline culture, where either-or fallacies are tossed around for entertainment and "very bad men" are no longer considered human, something very important is at stake: "our own humanity." In a culture where the innocence of the victim is the yardstick for the evil of the perpetrator, we risk losing our "mercy":

At heart, mercy is simply the steady responsibility to safeguard the humanity of all, including those we hate. There will always be people guilty of great evil.  But evil is an act, not a cultural metaphor, not a social backdrop, and not entertainment.  As a people, we have to resist the temptation to make our morality contingent on anybody's innocence.  You might hate my clients, and you might be right.  My clients routinely disprove God.  But we can't use them to undo our own humanity.

And so with "our own humanity" at stake, Place approaches everything from the reliability of DNA evidence to involuntary commitments for sex offenders to intoxication and legal consent with a critical eye, posing questions readers will never see on cable news (scratch that: they might see them uttered by one of the talking heads on the Brady Bunch-style grid, but they will be quickly and summarily squashed by the host).

I do not interpret this to mean that Americans need to coddle sex offenders, or feel sorry for them, or care for them more than for victims, or any of those false dichotomies.  This is not an invitation (or exhortation) to throw a pity party.  Rather, this is about placing larger questions of humanity above fear and hate - or to ground it to something more concrete, to care about the integrity of America's ideals so much that we are willing to uphold them even when it disgusts us to do so.

Place herself is not afraid to divulge (or confess) her own complicated feelings at times; nor is she afraid to "play prosecution" and consider the other side.  In fact, reading her book at times feels like a wrestling match of sorts: an adversarial trial in which the system itself is charged with breaking its own ideals. Place is not afraid to say when the state is right, or when the state is acting on good principles or ideals but needs to change its tactics.  This is not an "us vs. them" or "defense attorney vs. evil, oppressive state" sort of book.  That is what makes it such a remarkable and important addition to the discourse.  That is why this book matters.

In the coming days and weeks, I will blog some initial responses to select chapters and sections in Place's book, some of which I find myself vigorously nodding my head to in agreement, and others of which have raised serious questions for me, and I do not quite know where I stand (which I think is a good thing).  First up will be the chapter regarding involuntary commitments, in which Place steps outside the box of "should we or shouldn't we/can we or can't we" and poses questions about the kinds of actuary models and testing instruments we use to determine whether someone is a sexually violent predator (and likely to re-offend).  

procedural defense

In American criminal law, there is one kind of defense that has nothing to do with the facts of the case or the sanity of the accused.  This kind of defense focuses instead on the justice process itself - everything from police or prosecutorial misconduct to claims of double jeopardy or selective prosecution. It is called a procedural defense, because it targets flaws, mistakes, or biases in criminal procedure. Maybe a defendant claims the police tainted key forensic evidence (as in the O.J. trial), or that the prosecution withheld exculpatory evidence. The idea here is simple: process is so important for justice that a flawed process breeds an unjust result. Writers can learn important lessons from this.

Prosecutorial misconduct usually translates to withholding exculpatory evidence.  Imagine a prosecutor finds a credible witness that contradicts (or even impeaches) a key eyewitness for the state, and instead of alerting the defense, she sweeps the witness statement transcript under the rug.  If the defense finds out about this secret witness, it can fight to have the conviction overturned on appeal.

For a creative nonfiction writer, the lesson is clear: hiding evidence about characters (who are also, of course, real human beings) in order to pin certain unattractive qualities on them is not just unethical; it is downright risky. Maybe a memoir or essay can escape complete reversal in a court of law (libel battles aside), but it can never reclaim respect in the court of public opinion.  Even if the characters - again, real people - do not revolt, the public can sense when a writer attempts to wield writing like a gavel, beating a character with the hammer of justice. 

But there is another important lesson to glean as well - about the ways in which writers can "entrap" their characters.  In criminal law, entrapment occurs when police or other officials plant the seed for a criminal act - either by convincing someone to do something he normally would not, or by convincing him that a crime is perfectly legal.  Obviously, writers cannot really "entrap" characters in precisely this way. Instead, they might play with certain details to crank the narrative tension - perhaps recasting an innocent act (or at the very least, an ambiguous one) into a deeply despicable one.  

The truth is, many writers do not even realize they do this.  I have seen it again and again in workshops. The author believes that in order to tell his or her truth, only one side of the story should prevail.  Any ambiguity whatsoever represents a threat to the "truth," because it opens up the story to multiple interpretations.  And in some cases, writers (and I have certainly experienced this) are simply not ready to see any other perspectives but their own.  They need more time to process the emotional fallout of events. 

This is why I like to leave traces of my process on my writing, as I did in the example from Boy Down, an essay about a former boyfriend named Ashley (to many people, an odd name for a male, but that was his name) who died of a heroin overdose. It keeps me accountable to myself - and to my characters and readers. By laying my process bare, I invite readers to review my case and judge my ethics - and my version of the truth - for themselves.

Boy Down

Here is one from the vault - a fragment that eventually became part of my essay, Boy Down, one of several linked essays in my MFA manuscript from 2003.  I post it here because it demonstrates how I like to leave a residue of my process on my work - how insight into process equals insight into product.  I will explore that concept here in more depth later on.

From my essay, Boy Down, about a former boyfriend who died of a heroin overdose:

Lately, the image of honey poured from metal bowls onto spoons, onto the soil, has been haunting me.  I think of it like resin or lava, liquid that hardens into stone, preserving the remains of the most delicate insects, or surrounding a bubble of air and locking it forever inside hard time.  But unlike resin, which hardens forever into amber, or lava, which cools into a new layer of crust, honey can be cooked down again and again, heated up so the crystals melt.  Time can be reversed, taken back to its potential, and the syrup can flow again in one viscous stream.

I think this is why I started collecting needles and syringes I find on the riverfront and preserving them in honey.  Suspended in sugary amber, they transform into fossils, sacred as bones.  The honey eventually crystallizes, surrounding the syringes with opaque clouds, sealing them inside singular moments of time.  All I have to do is cook the honey down, and everything becomes clear.

abusing our power

Over the weekend, I posted a piece called "retracting my statement," about a conversation in which I confirmed a (then) boyfriend's view of sexual politics.  At the time of the conversation, I was not yet ready to face the damage done to me by a sexual assault, let alone start picking the shrapnel out of my heart. I wanted to prove to myself that I could hold my own with an older man - that I wasn't the kid he thought me to be, practically a niece in terms of age difference. And perhaps most telling - or damning: I wanted to impress him as an avant-garde thinker, an artist who pushed boundaries like he did, like the artists he admired.  

None of this was clear to me then. None of this was conscious or deliberate. It was not until years later that I would come to terms with what I said, or the implications of how my words could be used - not so much against me personally, but rather, in the court of public discourse: in support of a dangerous, even predatory aesthetic.

I imagine the cubes of resin drying on one of his work benches with little paper insects trapped inside. There is no going back.  My words are preserved forever, simply by having spoken them.  And the truth is, so are his.  

Which leads me to further questions about the privilege that writers - especially nonfiction writers - possess: their unchecked power to put testimony out into the public discourse. What obligation do we have to the "witnesses" providing "testimony" in our writing?  How do we treat them while they are on the stand? How do we interrogate them beforehand?  How do we decide which testimony to use, and which is suspect - not only in the sense of its truthfulness, but also, its soundness? How do we spot testimony that is subject to later retraction? How do we know when we are abusing our privilege and power? 

This cuts a little deeper than the usual questions about changing people's names to protect their privacy. It means something more than common sense, too, which after all is a slippery concept, subjective at best and prejudiced at worst. 

Police interrogators might rely on multiple sessions, sniffing out inconsistencies in order to uncover lies or misrepresentations.  This, however, provides a poor gauge of the truth, let alone personal truths. But there is something to the idea of asking questions more than once - of doing the work to uncover something below the surface.

I don't mean that we should literally "interrogate" the people in our lives, but rather, that we should remain mindful of how people's memories and feelings change over time - even from second to second, or mood to mood.  We should remember that the subjects of our essays and memoirs are as psychologically complex as we are, and not necessarily clear in their intent.  Intent, then, becomes something to question while writing - something that should never be taken or given at face value. 

In criminal law, intent is known as mens rea (literally, "guilty mind") and must come together with an action (actus reus) in order to be defined as a "crime."  This is why we have varying degrees of murder; each one represents a different kind of intent (with negligence and recklessness also defined as forms of intent; hence, charges like negligent homicide & manslaughter).

Intent is not the same thing as motivation.  One might be motivated by desperate poverty to rob a convenience store, but that is not an element of the crime.  The intention must be to deprive someone of property (or however any particular statute defines mens rea), and this intention must intersect with the act of carrying out the robbery. 

Given that intent is a mental state, it is never easy to identify or infer. One might argue an insanity defense, in which a particular mental state made one unaware of right or wrong, or created an irresistible impulse to act - both of which would remove the element of intent.  Given my history and my mental state at the time of my statement to my former boyfriend, some form of insanity defense might fit for my story, although I have serious doubts about that idea. 

There is also the question of how long it takes to formulate intent. Some criminal cases have hinged on whether a gun required a shooter to release the safety or load bullets.  Inherent in either action was a point at which the shooter could change his mind, and this provided some evidence of the formulation of intent.  Intent, then, can be formulated in an instant - even second by second. 

I find a certain elegance in the idea of intent coming together with act. In writing, we recognize this as objective correlative: an event (or object) corresponding to some inward emotional or psychological state. In an adversarial writing process, we can begin to question "objective correlatives," wondering if we have them wrong.   

Finally, it is important to remember the context in which "testimony" is given.  I like to look to a Supreme Court decision for guidance, in which the court ruled that crime-scene witness statements need to be divided into two categories: those given "under the duress of an emergency"; and those given in a clear context of evidence gathering, when no emergency is present (Anonymous, 2006, p. 5).  As might be expected, statements under "duress" are not admissible as testimony; those given deliberately in order to "establish a fact" are another matter entirely and may be used in court (Anonymous, 2006, p. 5).  Here again, we see an attempt to "play fair" by defining clear "rules of evidence."

We might think of charged, emotional moments in our lives as "crime scenes," and any statements given as potentially "under duress."  

The lesson here is simple: We must pay close enough attention to the people we write about to recognize these shades of gray.  We must cultivate the compassion and empathy to consider the kind of duress under which they speak.  And we must be willing to poke holes in our own cases if that is what it takes to get to the "truth." 

References

Anonymous. (2006, June). Crime Scene Comment Is Testimony Evidence. Juvenile Justice Digest, 34(12), 5.

playing fair with the truth

"It is often wrongly assumed that a trial that is a fair contest is a trial that produces 'true' results which correspond to the fact of 'what actually happened'" (Goodpaster, 1987, p. 128).

As a student of criminology, I was fascinated by competing theories about the purpose, objective, and ideal process for criminal trials. Probably the most intriguing question, at least to me, was whether trials uncover truth or create it.  The idealist in me wanted to believe that trials can uncover the truth about things inherently invisible to lawyers, judges, jurors, and even most witnesses. Obviously, nobody can peek inside the mind of the accused and "see" intention, but through competing evidence, interpretations and narratives, maybe it would be possible to accurately discern facts.

The realist in me, however, knew that the converse rang true - that adversarial trials do not discover, but rather, "manufacture" truth through the very process of persuading jurors and judges to one particular version of the "facts" (Goodpaster, 1987, p. 130): 

A trial is an accusatory proceeding. As such, trials have no abstract interest in what happened independent of the accusation.  In other words, the issue in a trial is the truth of the accusation, and the accusation is true if it is proven to be true within the rules of proof and persuasion.  In this manner, a trial produces truth, rather than finds it.  This truth is a "legal" truth and is that which the system recognizes as true (Goodpaster, 1987, p. 130).

The verdict creates the truth by proclaiming it as such - circular, yes, but we generally accept the results. 

In a way, writing is also an "accusatory proceeding," with a writer presenting one version (or possibly multiple selected versions) of the facts in an attempt to pin certain "charges" (not necessarily criminal, mind you, and not necessarily literal, either) on certain characters - including themselves.  This is especially true of creative nonfiction and memoir, where the impetus to write becomes an imperative to uncover a deeper truth.  Once writing lands in the hands of an audience, the audience mulls the narrative and decides on its own version of the facts, as well as character and writer intention. 

Of course, nonfiction writers wield a great deal of power that even prosecutors do not possess: Unlike in a true adversarial trial, there is no chance for the characters (real people, mind you) to cross-examine witnesses or present a defense.  There is not even a chance to plea - not unless said characters, or others, somehow capture the attention of the media, as James Frey and Margaret B. Jones learned.

With this power comes an ethical duty, to play fair with the facts.  But what does "playing fair" mean?  In criminal trials, it usually means following the rules of evidence, protecting the rights of the accused (for example, the right against self incrimination, which also means a right to refuse taking the stand), and even following standards of "courtroom etiquette" or the "scholasticism of law school eduction" (Goodpaster, 1987, p. 131). 

Do writers have "rules of evidence?"  Are there other "rules" as well?

When I was an MFA student, one of the faculty mentors believed the highest responsibility for writers was to explore "artistic truth" - not necessarily "the truth" or even "fact." Rearranging details or evidence as needed to suit the aesthetics of a particular narrative was not only ethical, but even desired. He probably would not advocate changing a major detail or "fact," but perhaps the color of someone's dress, or the precise order of events. Of course, he left open the question of what constitutes a "major" or "minor" detail. Another professor disagreed vigorously and suggested that anything short of the "hard facts" represented betrayal of writer ethics and audience trust. 

Still another mentor suggested a middle ground: always remaining open to personal complicity, and including in our narratives some clues as to our own responsibilities, biases, and shortcomings. Undermining our own authority would, in turn, undermine our power. 

That last idea appeals to me.  As I have mentioned before, I like to poke holes in my own case, create doubt, open up my writing to questions and multiple interpretations.  I like to make it clear to readers that I own my narratives only so much as I own my point of view - a point of view that is not necessarily reliable or even stable. 

But what about when "complicity" is itself a false construct - or at the very least, an ethically slippery one?  For example, one of my essays depicted abuse I endured growing up, and a mentor wrote notes in the margin along these lines: "Good work here, but try to explore what you did to incite this.  How were you complicit?"  The scene: a five-year-old me being beaten with the buckle end of a belt.  The very suggestion that I was "complicit" set me back at least several years, to a time when I still blamed myself.  More importantly, it seemed to me an unethical direction for the essay, given that other abuse survivors - and abusers - might read it.  I did not want to perpetuate myths that pin blame on victims. 

Perhaps "complicity" in this context has to mean something other than "culpability" or "responsibility." Maybe it has to refer to process instead: recognizing our complicity in "manufacturing truth" whether we stick to the facts or not. 

References

Goodpaster, G. (1987). On the Theory of American Adversary Criminal Trial. The Journal of Criminal Law & Criminology, 78(1), 118-133.

the ice bath

Lately, one of the few memories I have with my brother keeps returning to me in dreams: the night he lifted me from my bed and carried to me to a bathtub filled with ice cubes and cold water.  I was delirious with fever, in and out like a distant radio signal, and in danger of dying if my fever could not be brought down. My brother had come to live with us while between jobs, and so my mother put him to work when the doctor gave the order to cool me down.  

I remember him unbuttoning my pajamas and pulling them over my head, and despite the fever, I was embarrassed.  I hardly knew him, and the truth is, I had a little-girl crush.  Ever since he arrived at our front door, I found myself going out of my way to harass and tease him - anything to get his attention. To me, he seemed like a miracle, arriving at just the right time, when I was longing for a big brother. And since he was eighteen years older than I was, he was also a mystery.  Why hadn't I known him all these years?  

It couldn't have been too long - maybe three years - after this night that he was gone from our lives for good.  

My feelings change depending on whether these images flash into my mind during the daytime, or creep up on me in sleep: In the daytime, this bathtub scene takes on a sweet quality, a moment when I felt like I had a real brother, someone who took care of me in a vulnerable moment.  At night, I wake myself up trying to wriggle out of my brother's arms, pushing his hands away from my pajama buttons.  Mostly - and I realize this is fallacy - I try to figure out what I am supposed to feel, which is to say what other people would feel, about a moment like this. 

Given that I had so few moments with him, maybe I could never really perceive this moment in a way that makes sense. Maybe my mind could never really assimilate to the man who showed up on our front doorstep with a suitcase and lunch pail, ready to reconcile with his father - my father.  Maybe if he had been with me all my life, it would not be so hard to understand what he means to me now.  Maybe it would be easier to weigh his defenses against all the other evidence.  Maybe I could stop putting my memories on trial and just miss him.  Like other sisters would. 

relic from the future

I haven't written in this notebook for a long time - judging by the cut-ups of photo contact sheets, probably at least several years - but when I stumbled across it today, it felt more like a relic from the future than from the past. 

At the time I started this notebook, I was reading essays in theoretical neurobiology, one of which described the neural processes that occur during perception - in particular, how AM (amplitude modulation) patterns change and adapt over time to a repeated stimulus (Freeman, 2000). Apparently, when AM patterns were first observed as a response to a stimulus, neurologists believed that these modulations were "representing" the stimulus in the brain - taking on a predictable shape (Freeman, 2000, p. 212).  This, however, proved false, because the patterns changed with repeated exposure to the same stimulus, suggesting that the patterns actually represent "the meaning of a stimulus," or in other words, what we have learned about it over time (Freeman, 2000, p. 12).

I cannot help but think about how the act of writing - which necessarily organizes memories and perceptions into structures and shapes - changes my AM patterns in response to experience (and perhaps even in response to memories, which after all, are "perceived" again in imagination and dreams). Revision, too, raises interesting questions: Is the act of revision a process of actively trying to change an AM pattern?  Or do changes in AM pattern - perhaps during the act of writing - generate the impetus to revise?  

Maybe AM pattern assimilation is the whole point. 

It also explains - at least metaphorically if not literally - why I write at such a slow, deliberate pace, and why I often wait years before I feel ready to give shape to experience. Maybe my brain needs to assimilate first - in other words, to give my perceptions a shape I can work with.  Perhaps it even explains the particular forms in which I write.  

I have never believed in transcribing experience in some "pure" form, but I cannot help but wonder about the implications of AM pattern assimilation for my adversarial writing process.  I like to play prosecution and defense - to build a case and tear it down with reasonable doubt, only to rebuild a new case and continue the process. I not only destroy evidence, but my perception of it as well.  

References

Freeman, W. (2000). Brains Create Macroscopic Order from Microscopic Disorder by Neurodynamics in Perception. In P. Arhem, C. Blomberg, & H. Liljenstrom (Eds.), Disorder Versus Order in Brain Function (pp.205-219). Singapore: World Scientific.

reasonable doubts?

Recently, Popular Mechanics published an article expressing serious doubts about several of the most popular fields of forensic science: bitemark evidence, fiber and hair analysis, fingerprint identification, and ballistics. The article profiles several people -including Brandon Mayfield, the Portland attorney accused of having a part in the 2004 Madrid train bombings - who have been falsely accused or even convicted based on faulty forensics with little to no statistical reliability. Twitter is all aflutter: "Forensics Myths Debunked"; "CSI Myths: The Shaky Science Behind Forensic Science"; "Forensics Was Invented by Cops, Not Scientists - And It's All Starting to Unravel."

I find this fascinating for many reasons, but mostly because of that last tweet:  "Forensics Was Invented by Cops, Not Scientists."  Given that modern culture tends to divide experts into distinct specialties and fields, a statement such as this comes as no surprise.  But the fact is, science itself was not "invented" by "scientists." (Try running around in that circle for a minute: a field invented by people working in a field that does not yet exist.) Science is more method than distinct field, a deliberate way of investigating the world, a philosophy.  

The tweet & the article also express a deep bias: that scientists are the only experts we can trust with investigation. But police have no less right to engage in scientific inquiry than biologists or chemists. This is not to say that forensic science should be any less rigorous, or that biologists, chemists, and the like shouldn't be part of the hunt for statistically reliable methods of finding and using evidence.  But police should be able to develop (or help develop) relevant, reliable forensic techniques - to apply the scientific method to their everyday work. 

Of course, I have my own biases.  I seek to break boundaries, deliberately working in a gray area between science and art (or science-as-metaphor and art-as-science).  I have defended this on multiple occasions to those who believe I don't have the "right" to explore forensic science, given my lack of credentials as a scientist or cop. Even when I began studying criminology, I spent more time defending my process than I did sharing my work. For years, I thought this was sexism, plain and simple, but now I see it might have been something else.