PHILADELPHIA CLERICAL ABUSE CASE

As I mentioned in the immediately preceding Post, I have been doing some posting of comments on a site set up by a Philadelphia law firm, on which a reporter files pieces summarizing the events at each day’s session of the this trial.

It has given me an opportunity – somewhat unexpected but certainly useful – to explain some of my thoughts and positions as I have developed them and expressed them on this site in the past 3 years.

Just a few days ago some commenter(s) discovered that I also had this blog (they probably Googled me and up came the blog – the wonders of the internet). (Coincidentally, this past week the Blogger host implemented a new template which automatically put the Followers of any blog right on the blog-site page for – apparently – ease of access. I dislike bells-and-whistles since they distract from the essays, and for that reason, once I realized what had happened, I disabled that option.)

At any rate, my comments on this and that daily Post on the Philadelphia trial site [hereinafter ‘the Phil site’] extended into a number of mini-essays (they currently take up 47 pages on a Word document).

I hadn’t really paid much attention to the Philadelphia case, just looking at whatever occasional article appeared here or there. But I came across the Phil site and put in my two-cents and things sort of took on a life of their own from there.

I am going to discuss some of the material here since as things have played out, both a) the case and b) the comments seem to me to be of larger relevance to general SO and national concerns, as well as of interest to persons who follow the sub-variant of the SO Mania that has developed around the Catholic Church.

Readers so inclined might want to follow the case on the Phil site.* (It may just be my computer, but my experience is that the site loads rather slowly; once you have the home-page, it takes a while for all the other info to load. If you get that page, quickly click on something, and your browser advises you that ‘the site is not responding’, just wait 10 or 15 seconds and things will work themselves out.)

So to the case. It is brought by the Philadelphia DA’s office after two Grand Jury reports (2005 and 2011). It revolves around two priests (although one pled Guilty just before the trial and is no longer a Party) who are charged with abusing or molesting post-pubescent young males in the 1990s (oddly, the remaining priest Defendant’s charge was suddenly reduced from Rape to Attempted Rape just before the trial began).

A third Defendant is the monsignor who served as personnel director for the Archdiocese in those days. He is charged with Conspiracy, presumably to commit child-endangerment. I believe there had been prosecutorial hopes to involve the Cardinal-Archbishop from that era as well, but that prelate died at age 88 just before the trial began.

Several points about the case itself catch my attention.

First, the charge against the remaining priest was suddenly downgraded just before the trial, as I mentioned above. It had been Rape – although apparently this putatively accomplished rapist had layers of clothing on when the charged-act was committed, which had to be something known to the investigators and prosecutors well before a Charge was decided upon. So why the case was initially allowed to be billed as a clerical ‘rape’ case raises concern. The thought suggests itself that this was for ‘hype’ purposes, and to fit into the general framing of the case as part of the priest-rape or pedophile-rape trope.

Second, the Charge against the monsignor is Conspiracy. It seems a difficult route for a prosecutor to take. One might have charged Accessory or Criminal Negligence with perhaps more probability of success. But again, ‘Conspiracy’ is a word with a certain emotional load to it, and that perhaps drove the Charge. That the monsignor and the priests, or the monsignor and the Archbishop, sat around and deliberately arranged matters in order to assist errant priests in furthering their molestations of children or minors is going to be difficult to prove, and it is also going to be somewhat difficult to solidly establish in the mind of jurors.

Prosecutors go into cases to win with as much probable chance of success as possible, so this choice of Conspiracy seems odd to me. It runs a much greater risk for the prosecutor’s office, if after all the expenditure of time and resources there is an uncomfortably significant chance that by over-Charging they will wind up with a lot of resources expended and a lost case to show for it.

Interestingly, the case seems to me to bear no little similarity to the recent filing of a Complaint (by the same victim-advocacy organization that appears connected to the behind-the-scenes connections in this case) with the International Criminal Court (ICC)some months back; I did an extended essay Post on that filing here.

In that ICC filing, having read the Complaint, it seemed to me that the Complaint was somewhat of a pretext for putting out in public an accumulated store of allegations. Additionally, in order to qualify for ICC jurisdiction, the Complaint had to frame its charges as Crimes Against Humanity and as Torture. Which are powerfully emotional-loaded terms, although – again – the idea of the Church as primarily a world-wide conspiracy organized for the specific purpose of furthering such a criminal and anti-humanitarian agenda is something of a stretch. But it does grab one’s attention at first glance.

I also noted about the ICC filing that in order to introduce material about events or acts prior to 2002 (the date of the ICC’s erection as a Court) the complainant advocacy-group had to insist that it had plenty of evidentiary material to establish a ‘pattern’…  so long as one presumed the veracity of the collected allegations it had culled from its files. Which is – charitably – a mighty big presumption for a Court to make.

Third, while one accuser has given testimony and been cross-examined, the background of the accuser is littered with assorted elements of a criminal record and of other unsavory characteristics.

Two aspects of current SO-Mania law come to mind here. One is the now-statutory requirement in many jurisdictions that juries simply determine the credibility of the accuser, rather than the credibility of the actual criminal event alleged to have happened. Just how that plays out in this case remains to be seen.

But this dovetails with the larger victimist-driven ‘reform’ that prevents consideration – though only in sex cases – of the accuser’s own background. In other criminal cases an accuser with a past criminal record, for example, would not receive such a free pass. And yet in the SO laws and jurisprudence the accuser’s relevant background and ‘patterns’ are protected from scrutiny while the accused’s own background or ‘patterns’ are not so protected from scrutiny.
Second, there remains as always the question – even though not a direct issue here – as to whether a greatly troubled accuser’s life problems were provably the result of some form of abuse, or whether they pre-existed the abuse. In the insistent demand that one focus only on the ‘harm’ that is evident, questions as to the etiology of the harm are often ignored.

Thus an alternative explanation might be that the accused priest became involved in the life of an already-troubled person in the first-place – which is something that priests often do. (Yes, there is also the possibility that a priest might have purposely selected ‘troubled people’ precisely in order to further purely sex-abusive designs, but that is hardly the only explanation and it can hardly legitimately be presumed in all cases.)

Frankly, some of the priestly behavior – if the allegations be true – fall on a spectrum from pathetic to reprehensible.** But again, this is a ‘historical’ case in the sense that all the events took place a dozen to 18 years ago and there has been much reform going on, especially in the past 10 years. In the entire country in 2011, there were only 7 credible allegations of current abuse of minors by priests, and ‘credible’ is still not ‘proven’. More on that in a bit.

Another area of interest, besides the case itself, is the comments on the site. (You can never tell for sure, in the webverse, who folks really are, so all my ‘identifications’ are provisional, working off however the commenters identify themselves. Also, I am of course presuming that you can, if you wish, proceed to the Phil site and look at any of the comments if you wish.)

I want to look at the comments for the purpose of giving readers here my thoughts as to what might go on in commenting in this area of interest.

Input seems limited to a smallish number, and those break down into two groups. In the smaller group – kicking the tires of this case – there is me and there is the owner of the Media Report site. In the larger group, there is a finite assortment of commenters who all share an enthusiasm for the trial for an assortment of the usual reasons; some rely on more or less one-liner comments and one particularly who comments at much more length, about which phenomenon more below.

The overall impression – and it is a strong one – is that commenters who support this type of trial, as so often much else of the Mania matters, are rigidly focused on their preferred interpretation and no other. They are not interested in alternative views, or rational arguments that complicate their simple (simplistic, often) beliefs, or anything else that detracts from the ‘clarity’ they enjoy (one thinks of Bush’s ‘moral clarity’ about the then-upcoming Iraq invasion).

Further, that any ideas which complicate their views must – cartoonishly – ‘prove’ prima facie that the person proposing such ideas must be a ‘pedophile’, a ‘defender of pedophiles’ and rapists, and is probably one him/herself.  

Further, that any ideas that complicate their views must be an attack on them and their views, even if those ideas merely try to gain a larger and deeper comprehension of the matter under discussion.

Further, that the expression of any ideas that complicate their views must be the result of either evil intent or of being ‘paid’ to complicate their views and cast doubt on the one framing narrative or 'spin' to which they are - apparently - unshakeably committed..

Further, that in the (apparently desperate) need to ‘protect’ their preferred version of matters and because they do not habitually pay attention to the flow of ideas in a rational discussion, they will mis-quote or create ‘straw-man’ positions putatively held by their interlocutors, and then proceed to demolish – in their mind – that phantasm that they themselves have created … considering it, apparently, a successful job when they have done so.

Further, that the expression of any ideas that complicate their views must make the tire-kicker a ‘Judas’ (the implication being that this type of mindset is also the mindset of Christ, to Whom these commenters – in the logic of their own imagery – hold themselves comparable). In the priest-abuse sub-variant, this also creates the odd dissonance that while they are deeply hostile to either the Church, or religion generally, or at least to any current instantiation of the Church, yet these types are quick to use religious imagery to grab the ‘moral high ground’, as it were, and on that basis dismiss (and perhaps in their mind to justify dismissing) all complicating views without actually engaging them.

Further, as implied immediately above, that their default approach to any such complicating views is not to engage them and deliberate or argue (in the classic sense of the word) them, but rather to simply toss out some myah-myah comebacks in an effort to dismiss or discredit those views – much as one would encounter such expressions around a school lunch-table among students.

Further, as implied immediately above, that their default approach to the expression of any ideas that complicate their views includes a ready resort to ad-hominem slurs in an effort to discredit the proposer of those views.

Further, that they do not so much read to comprehend alternative or complicating views, but rather they simply scan for familiar words or phrases which apparently trigger an already-held stock of ‘come-backs’ in some file-card collection in their mind – and they then proceed to parrot the contents of that particular file-card, with no apparent concern for the relevance of what they are saying to what is actually being said or discussed in the comment that piqued their ire.

They then proceed – when they bother to engage ideas at all – to assemble various factoids (so often gleaned selectively and by Googling) into their own preferred position, much as a bird builds its nest out of whatever bits and pieces appear useful for the job.

In this regard this mindset strongly conforms to the ‘fundamentalistic’ thought-process (which can exist in a secular as well as a religious variant): there is a corpus of beliefs rigidly but robustly embraced like mantras or slogans, without much comprehension of the ideas or chains of reasoning beneath them. If any supportive quotations or references are provided, they are provided in the manner of ‘proof-texts’, simply to trump (in their mind) any views to which they take exception. One thinks of trying to discuss rationally with a genuine religious fundamentalist, and simply being given a quick quotation or cite from Scripture with no further effort to explain the relevance of the quote/cite to the discussion at hand.

And further in that regard, that such come-backs are delivered with a palpably haughty and assertive and sort of global or universal confidence that is almost ‘in your face’ in its brash dismissal of further thought. As if such complicating thought were not even worthy of notice or engagement. Thus neatly, both the complicating ideas and the person who proposes them can be conveniently dismissed with a put-down that is apparently supposed to pass for actual thoughtful engagement.

It is becoming increasingly clear to me that, especially in the matter of mindset and the manner of processing thoughts, this approach is characteristic not only of individual commenters but also of the general level of thought (or lack of it) that governs the content of whatever exchanges they have among themselves, in their groups or meetings or in conversation.

To the extent, I would say, that this process and mindset governs the minds of advocates who – in the current atmosphere of “advocacy group liberalism” (recall my recent Posts discussing Theodor Lowi) and ‘deal politics’ whereby advocates are allowed to submit the actual wording of the laws they wish to see legislated – currently enjoy a substantial influence granted by legislators who do not so much evaluate such proposed SO-relevant  legislation but rather merely accede to it, with no serious concern for consequences or ill-effects on the problem the legislation is intended to solve or on the wider but utterly vital matters of the integrity of the legislation, the legislative process, the judicial and law enforcement processes or on the general integrity and efficacy of the national (and governmental) grasp of the fundaments and first principles of American law as Shaped by the Framing Vision and the Constitution.

As I have said in prior Posts here, there has existed now for several decades in this country an attempt to graft ‘revolutionary’ or ‘emergency’ law (pleasingly cloaked as ‘victim-friendly’ law) onto the constitutional conception of law and Law embodied in the Framing Vision. And I don’t think the graft is working, if indeed it ever was possible that it could have worked in the first place. But I do think that the graft, to continue the medical image, is creating infection and derangement along a broad and deep spectrum of vital governmental functioning.

And it is especially alarming – and not simply for SO matters – that the public has been induced or manipulated to see all of this as mere ‘reform’ and as utterly and indubitably and purely Good ‘reform’.

Which, in my opinion, it most certainly is not.

We have reached a point now where such cartoonish and fundamentalistic and frankly primitive thought-process has come to be accepted as the normal level of discourse in public discussion of all sorts of vital matters (the Bush/Cheney ‘justifications’ for the Iraq war being only the most obvious).

And while the internet, with its many sites that offer ‘comments’ options, can be a marvelous and truly valuable medium of public deliberation and thinking-through of issues and matters, it also affords great opportunity for that type of dismissive, cartoonish one-liner delivery that only masquerades as serious engagement with thought and deliberation and mutual exchange.

Some commenters – and you should have no difficulty noticing the phenomenon on the Phil site – actually do seek to mimic a competent and deliberative approach, creating extended performances that yet incorporate all of the above characteristics.

All in all, the above approach is not at all conducive to furthering comprehension of matters, but rather serves to squelch any dissonant views or information that threatens their own preferred and rigidly-embraced take on matters. And to squelch not only individual interlocutors who so offend them, but also to squelch any other readers’ possible consideration of such alternative views and ideas.  

The last general area of interest is the bringing of this case itself by the prosecution.

Why, in an era of dwindling state funds and areas of current and active criminal activity, would a prosecutor go to all the trouble and expense of bringing such a case in the first place?

As I have said, the matters in the case at bar go back 20 years, they can be handled in a far simpler trial process (although not guaranteed to secure a conviction, but that’s the American legal system – it’s not a guaranteed sort of affair), and in the intervening period significant reforms have been put into place that – by all extant and reliable indicators – have had no small success in getting control of the problem.

In this regard I invite your attention to the Archdiocesan Response to the 2005 Philadelphia Grand Jury Report. The prosecutor’s office apparently had ample opportunity and even invitation to suggest reforms and become involved proactively in the formation of desirable reforms, but did not opt to do so. And instead, half a decade later, chooses to bring this case, rather suspiciously mischaracterized as a ‘Rape’ case and rather riskily brought as a Conspiracy charge as well.

In the manner of an astrophysicist trying to figure what unseen force is exerting an observable and deforming gravitational pull on some planetary body or phenomenon (think of Einstein investigating why light seems to be bent when travelling through space), I look at this case and wonder what unseen forces are bending the praxis of the prosecutor’s office such that this case is being brought and is being presented in such a way as it is being presented.

This approach of mine (not that I invented it) has evoked strenuous negative response from certain commenters who rigidly insist that the focus be on ‘the stories’ presented by the accusers, to the exclusion of any larger consideration or analysis. This is, of course, a standard gambit in victimist praxis, seeking to engage the limbic system of observers (the public, the media, the jury, the pool of potential jurors comprised of all citizens who read or hear about these ‘stories’) and move them to the desired ‘outrage’ while quickly and rather completely bypassing their pre-frontal cortical capacities to critically assess and consider.

I never trust efforts to engage my emotions to the exclusion of my deliberative and analytical capacities. I don’t think it is wise for anyone who is responsible as a Citizen to do so in a Republic where the Citizens individually and as that collectivity known as The People are the ultimate governors of the government and upon whose authority that government exercises its Sovereign Authority (especially the coercive police and military power).

Perhaps the prosecutors hope that such a flood-tide of emotions will help float their case over the treacherous legal rocks and shoals of the channel they have chosen to sail through by bringing this case in the first place.

But again: Why bring this case at all, especially in the form it has been given by the prosecutors? What unseen influences are driving this? (To simplistically assert that there are no such extraneous hydraulic pressures working to shape (and derange and deform) this case is to raise more questions than it purportedly answers, since there appears then no serious and sufficient reason why the prosecutors decided to bring it.)

My own thoughts as to possible influences are as follows.

First, advocacies for this sub-variant of the SO Mania who are seeing a dwindling number of the allegations so vitally necessary to keep their Cause alive and viable.

This is part of a larger threat to what I have termed Victimism, which – under the intensifying pressure of serious and immediate economic hardship experienced by increasing number of citizens – sees its concerns and issues fading into the background of public concern.

This is also reflected – as I have noted in prior essays here – in the efforts of certain Beltway pols to ensure continued public funding of such advocacies and movements and agendas, even as the supply of available tax-monies continues to dry up at the national and State levels.

Second, advocacies for larger socio-cultural movements: here I would list radical feminism (as distinct from moderate or liberal feminism); secularism (seeing the Church as an irritating and threatening proponent of a Beyond that might obstruct desired agendas of social and cultural change);  some vocal elements within the Church who want to see the hierarchy discredited and consequently reduced in power; and even government (eager to discredit a potential ‘judge’ of the increasing government descent into ‘positivism’, wherein there exists no Higher Law to judge the actions of government – leading, as I have often said, to a situation embodying Mussolini’s pithy definition of Fascism: nothing outside the state, nothing against the state, nothing above the state).

And We are in the midst of a major national election cycle (I am not familiar with the election cycle in the State of Pennsylvania or any more specific electoral jurisdictions) in which ‘keeping the bases happy’ is a vital and urgent necessity for assorted political interests.

 Any or all of these may be exerting an unseen gravitational pull that might explain the derangement in the trajectory of normal prosecutorial praxis.

None of this is irrelevant. Because what I think is happening in Philadelphia bears too many of the characteristic marks of a ‘show trial’ as the world has seen such trials unfold in – to mention but the most egregious – Nazi and Communist jurispraxis during recent history.

The real and primary objectives are to ‘send a message’, to manipulate public opinion and induce public acquiescence in governmental activity, and to generally ‘make an example’.

The actual determination of guilt or innocence or of any proportional adjudication of the instant charges are all secondary.

A show trial is an ominous phenomenon in any polity committed to the rule of law, and it is and must be especially a cause for concern when it appears in a constitutional democracy such as Ours.

As I have often said in essays on this site, it is an unhappy consequence – intended or not – of the Victimist approach to law that legitimate concern for crimes against persons can be used pretextually to mask the show-trial and all the lethal and noxious dynamics that drive such phenomena.

This is in no way meant to ‘minimize’ or ‘re-victimize’ genuine victims and their experiences, but such consequences as I have discussed are very lethal and very real nonetheless and they must be taken into account if any accurate comprehension of the show-trial phenomenon is to be achieved.

Again, in national affairs, We already see these pretextual dynamics at work in the recently-embraced foreign-policy theory called Responsibility To Protect (colloquially known as “R2P”): any time the government considers persons or groups anywhere on the planet and in any other sovereign nation to be in some way in danger of ‘vicitmization’ or ‘oppression’ it can militarily intervene forthwith.  This was an element in the justifications – such as they were – for the Iraq War, and a much more developed ‘justification’ for the recent intervention in Libya (a country now descended back into the lethal political maelstrom of warlord-ism with the elimination of its established (if distasteful) government.

So, as they say in the Navy: no matter how far at sea you are, you are never more than a couple of miles from land. The point being that if you think (more accurately and comprehensively) in three-dimensions rather than two-dimensions, the ocean floor is never more than a couple of miles away.

Thus, We are never far from fundaments and first principles, no matter what is happening on the surface of any event.

And in this case, I would say, fundaments and first principles of the Framing Vision and of American law and of the rule of law are very threatened indeed.

NOTES

*The Phil site’s pieces, done by a professional reporter, are the only ones that I know of that are actually dedicated to summarizing the evidence presented and the other developments in the trial sessions. I could also recommend a look at this site for background; this site is skeptical of various aspects of the case but always provides explanations and links to documents for its conclusions – and in matters sex-offensual in a time of Mania, an informed skepticism is not a bad thing. The site has established some curious connections among various official and close-to-the-case players that surely give cause for heightened scrutiny.

**Which the Archdiocese of Philadelphia noted as well in its response to the 2005 Grand Jury investigation. That response is well-worth a look, since it raises some relevant and substantive points about the use of the Grand Jury in this case, as well as some cogent points about how the DA’s office did and did not use the Grand Jury as a tool.

ADDENDUM

I’d like to also point out that there is a significant confusion about ‘history’ that hovers over and around this case, and also lies within it and beneath it.

There is a phenomenon known to the legal profession as “law office history”: an attorney decides upon his/her approach to a case – how s/he will frame it as a narrative and how s/he will present it – and then directs the firm’s elves to hit the books to come up with all the useful statutes, case law, and factual elements that will support this chosen framing of the case.

This is quite literally ‘advocacy’ history since the attorney is advocating a certain position, a certain framing of the events, to support his/her chosen theory of the case.

But this is not genuine history as practiced by historians (at least before the two concepts merged around here in the past few decades). Genuine historical inquiry demands as full a comprehension of the entire matter under consideration as it is possible to achieve: all facts, all contributing factors, all aspects of the matter under consideration, all consequences. And then one’s analysis and conclusions must be drawn on the basis of where all that material takes the matter.

There has been a tendency generally, especially in this decades-long era of advocacy by attorneys on behalf of whatever they are representing, deployed in highly publicized court cases or making a case for the passage of legislation or putting a case before – especially – the Supreme Court.

I would also note that this conflation was precisely what drove the ‘management’ of ‘information’ as it was “stovepiped” in the run-up to the Iraq invasion (in which, by no surprising coincidence, lawyers in the Bush/Cheney administration played no small part).

What should have been a full and free strategic assessment of all relevant actual facts and factors, and of all possible outcomes, and of all possible consequences (desirable and otherwise), was instead reduced – as if by a lawyerly mind – to ‘making the case’ for a pre-determined framing in the service of a pre-determined position (which was precisely the situation, since Bush/Cheney – as we now know – had already decided upon the invasion and were simply looking for whatever material would support what they had already determined to do). The idea – alas – was something like ‘there is only one place to get to, and our way is the only way to get there’.

“And the war came”, as Lincoln put it soberly and simply in his Second Inaugural.

Many zealous types seeking to effect change but not trained professionally in history have – I think – often presumed that ‘advocacy history’ is full and genuine ‘history’. It is not. The two are quite different in objective and in content.

But this explains a great deal the apparently genuine bafflement (and often displeasure) that such committed types express – and apparently genuinely as I said – when what they believe to be a complete ‘historical’ take on their cause or issue is subjected to genuine historical analysis and quite possible (or probable) alternative framing-narratives and larger examination of the consequences of their preferred spin reveals difficulties with facts and outcomes in their preferred spin. The larger genuinely historical analysis, as also the elements of the reality of their cause not likely to support the adoption of their cause, had been conceptually ‘invisible’ to them, since they had followed without knowing it an ‘advocacy history’ (the ‘law office history’ approach) rather than the genuine and much more comprehensive historical approach.

This confusion/conflation is now widely but  unknowingly accepted by many citizens, amplified by a media that itself often seems unaware of the difference (there had developed, of course, an ‘advocacy journalism’ some decades ago, complementing the long-established but carefully limited to the courtroom ‘advocacy history’.

Thus in matters of large national import Citizens are often put at a disadvantage from the get-go, induced into accepting and conducting far less than a full and genuine historical approach as a basis for their deliberations and the formation of a common deliberative and public opinion.

And this cannot end well. And needs to be changed if any actual problems are to be effectively addressed and resolved.

SOMETHING BRIEF

Two points today, briefly.

First, the website host set up a new template a couple of days ago. It automatically identifies Followers, apparently, unless the blog-owner opts out of it. I just got apprised of it and opted out of displaying all that material such as photos and so forth.

Secondly, I have been spending quite a bit of time recently on the Philadelphia clergy-abuse trial currently going on over there. A local law firm there set up a site to discuss the trial, with a reporter from the area posting reports on those days when the trial is in session and then commenters adding their thoughts (or at least their comments).

I hadn’t planned to spend as much time as I have, but I encountered all sorts of interesting phenomena (in the form of unusual commenters) and I thought it worthwhile to engage in a bit of back-and-forth.

The link to the site is here and I particularly recommend the comments following this article .

You can get an idea of my approach to things, and also what one encounters when trying to make contributions to certain topics.

CURIOUS THING

In a hefty, expose-sized article last week, the ‘New York Times’ reported that some lawyers are taking advantage of Disability law by going around on their own, finding businesses that are in even the smallest way out of compliance, and then going to disability-advocacy victim support groups to drum up plaintiffs for a lawsuit.

The public might be shocked; the ‘Times’ might be shocked, shocked; but the SO community knows all about that sly gambit.

It’s not quite, say, an operation like the ‘bundled lawsuits’ of the Catholic clergy abuse strategy – here each ‘plaintiff’ usually only gets $500. But each ‘plaintiff’ can be used several times on a good streak and for the attorneys, every little bit adds up. Naturally, of course, once you’ve had one successful day in court, a lot of other establishments will cave and settle out of court as soon as you send them a letter on your lawyerly stationery threatening a lawsuit in federal court.  And after the payoff, contractors have to be hired to make the required alterations. Oh, and the targeted business has to pay the lawyers legal fees too. Sort of a ‘positive feedback loop’ in the service of a rather sleazy business.

Naturally the attorneys claim the moral high-ground: they’re simply using the system the way it was planned to be used when the law (the Americans With Disabilities Act) was passed 21 years ago: it would give the disabled a way to force businesses to comply with the impositions of the Act (saving the government the trouble, making a few bucks for the lawyers and – if it’s not indelicate to notice – for the ‘plaintiffs’ as well). Something for everybody! What’s not to like? This is the way the Beltway has been doing business for several decades now.

Is it any wonder that the big enough businesses offshore whenever they can, and smaller businesses remain so minutely small that they can avoid the regulations (but also don’t expand even if their owners have the business chops to expand them)?

Neatly, the lawyers ensure that all the settlements are accompanied by confidentiality agreements so you can’t get a grasp of just how much the lawyers are making. In the Catholic abuse matter, the Church is accused of a cover-up for this sort of thing.

As one of the attorneys said, he makes his living by filing lawsuits and that’s what attorneys do.

And as mentioned above, the lawyers in these things get paid by the defendant.  According to one female law professor “who specialized in disability law” the vanguard elites among the advocates thought this would be a hum-dinger of an “enforcement strategy”: you let the little people do your enforcing for you by enabling them to go to court by giving them free lawyers to file the lawsuits because the attorneys will collect their fees from the defendants.

As with so much advocacy-inspired (and written) laws passed by the eager-to-please pols, a great PowerPoint presentation, a nifty cover-all-the-bases scheme that diagrams nicely on a flow chart, but that turns out – in actual operation – to cause wayyy more trouble than it solves.

Nor is it rocket science to figure this out. Nor would this have been a possibility only recognized in retrospect two decades down the road. There is a “moral hazard” in just about all these advocacy-written laws: they are made so ‘sensitive’ and elastic and bendable that they can be abused with frightening ease. That should have been clear to at least some intelligent folks 20 years ago.

In fact, I’ll bet it was. But such concerns were shouted down or shut up by pols looking to pander. And professionals looking to create a new cottage-industry for profit (and under the cloak of government goodness to boot). And advocates who couldn’t imagine how their so-very-good intentions could possibly have any ill-consequences and anyway what ill-consequence should outweigh (fill in the blank: justice, injustice, equality, rights, security, closure, pain, other)?

One Federal judge in Florida in 2004 (it’s been going on at least that long, no doubt longer) found against a plaintiff in one of these cases because “plaintiff’s testimony left the distinct impression that he is merely a professional pawn in an ongoing scheme to bilk attorney’s fees from the defendant”.

One disabled person, hearing a presentation at a victim-support group from a successful litigator of this type, decided “Let’s give it a shot … stop complaining and do something about it”. A commendable intention, but – as with the Iraq War – the execution failed so very badly. And now look what condition we’re in.

Nor is it unfamiliar that the law’s definitions and targets are so broadly defined and so numerously possible that it will keep the whole thing going until one or two fiscal years before the Second Coming: a ramp as required but too steep, shelves too high, toilets too high, paths between shelves too narrow; no bathroom doorknob that can be opened with a closed fist; hot water drains (pipes?) exposed under the sink. And less than 5 percent of the widely defined disabled are actually wheel-chair bound.

In an even more byzantine bit of slyness, the plaintiffs cannot collect damages under the disability laws, but as long as they also sue under state and municipal “human rights law” they can collect damages. Neat!

(Apparently the lawyers are shrewd enough to avoid going after public agencies and facilities – at least not too often. So the government gets an extra benny under the table: in exchange for creating a legal trough for the attorneys to feed, the government gets an unwritten semi-immunity from having the whole shebang turned against it and its agents and agencies.)

So much for the article.

Amazingly, the ‘Times’ doesn’t draw any connections between this whole approach as it applies to disability law and this whole approach as it applies to SO Mania law.

The sociologist Theodor Lowi, in 1967, was worried about “interest group liberalism” as a Washington policy as early as the 1950s: let the parties to whom the laws and regulations are going to apply write the laws and regulations. That way there would be less potential for angry folks, angry corporations, angry farmers, angry strikers.

Of course, back then there was only the merest hint of extending “interest group” to “advocacy group”, and the explosion of such advocacy (and the identified groups – increasing in number all the time – that needed such ‘advocacy’) interests into organized political pressure groups operating at the most intensive (and manipulative) level of advocacy at the highest levels of government.

So what soon happened in “advocacy group liberalism” – if I may – is that you had the advocates (and thus the ‘victims’) writing the laws. Except since these advocacies always and necessarily involved some ‘designated and necessary oppressor’ or ‘perp’, then the laws they were being allowed to write were not going to impact them so much as somebody else upon whom the practical consequences of the law were going to fall like a ton of bricks.

And then we got the SO Mania laws as well (interestingly, developing at the same time as Disability laws and Domestic Violence laws, around 1990 when Bush 1 was desperate to pick up votes and then before long Clinton came in and opened his arms sensitively and liberally to whatever came along).

You still only get short glimpses of how “advocacy group liberalism” works in the SO Mania laws, but you can see its traces any time a pol tries to sneak in a bit or a short bill to secure public monies for these private groups (especially nowadays when the SO Mania is starting to wear thin and the government cash ditto). And when this or that advocacy brags to its adherents that it has successfully influenced – they rarely say ‘written’ – a Bill or a regulation.

And how much of any of all this works? How many of these laws haven’t created more problems than they’ve solved? I’m thinking of the wrack and ruin to ‘sex offenders’ and their families, and the damage to truthfulness in science and therapy, and to the integrity of legislative authority and judicial power and law enforcement, to the media as it finds a new niche by abandoning reporting for stampeding, and to the country as it slides deeper into the trough of a police-state authoritarianism from the Left as well as from the Right, from Leviatha as well as Leviathan.

So much remains to be done.

'SCIENCE' AND THE STAMPEDE

Now comes ‘The New York Times’ on this 17^th day of April in the Year of Grace Two Thousand and Two, and of the Independence of the Republic the Two Hundred and Thirty-Sixth, and solemnly reports that there seems to be something very wrong with ‘science’ nowadays.

To wit: a large number of scholarly articles and Studies are apparently being recalled and retracted because they are – to use the paper-of-record’s term – “doctored” and what they claim – not to put too fine a point on it – ain’t necessarily so.

To quote one scientist, Ferric C. Fang, Ph.D., an editor of a scientific journal, “nobody had noticed that the whole thing was rotten” (referring to a particular set of two dozen scholarly scientific papers submitted by a scientist in Japan, but perhaps applicable to much more).

Applicable to much more because his stunning experience with the two-dozen got him and another editor to start studying the question of how much of such rot had taken hold. “They reached a troubling conclusion: not only that retractions were rising at an alarming rate, but that retractions were just a manifestation of a much more profound problem: ‘a dysfunctional scientific climate’”, as Dr. Fang puts it.

It has become a “winner-take-all game with perverse incentives that lead scientists to cut corners and, in some cases, commit acts of misconduct”.

Who can be surprised?

In the currently hot biomedical research field, there is a tremendous pressure to ‘publish’ and to ‘get published’. This is so because universities are looking for ‘published’ scientists to work at their expensively-constructed science facilities because those are the folks who will attract the most funding and keep the government grant money flowing.

The government you see, or rather its cash, is creating pressure here.

True enough, but the SO community realizes that there is also more to it.

The government, very much like its now-vanished Soviet shadow-sibling, has certain ideas about what is and is not acceptable (and Correct) science. You may recall a decade or so ago, a bunch of scientists wondered just how much damage (‘trauma’) was being caused by child sexual abuse. That was a lethally hot topic, dangerous as volcanic magma to touch, but just because of that the scientists decided it should be looked at as carefully as possible.

They didn’t conduct their own research. Rather, they simply studied all the already-published major Studies (that had already been funded, completed, and accepted) – this study of Studies is called a ‘meta-study’. What they discovered, somewhat to their surprise, was that the general gist of those Studies was that the damage was not as permanent or deep as generally claimed, and that a lot depended on the resilience and resourcefulness of the individual afflicted and the quality of help s/he got.

Sound if unglamorous scientific and therapeutic sense.

It set off an uproar, you may recall.

Congress – reacting no doubt to pressure from organized advocacies and cottage-industry ‘therapists’ (which have to be distinguished from genuine, extensively and professionally trained clinical providers) – actually went so far as to go the Soviet route: it issued a formal and official  ‘Sense of the Congress’ declaration that the trauma of sex abuse, especially among children, was awful and in no way to be ‘minimized’ by anybody claiming to be a scientist (and who – the Message was clearly intended to convey – ever hoped to get approved for a government science grant ever again, and whose universities might also not ever get government grant monies again).

Having been told in no uncertain terms just what ‘science’ was going to be now and just what it wasn’t going to find, discover, or conclude … scientists realized that they had better start finding what they were expected by their political funders to find, or else go into the auto repair business.

Things have gotten somewhat better as the stampede of the SO Mania has slowed down and its force-field has weakened, but you still won’t find many Studies affiliated with universities and grant-monies that dare to go very far into the trauma of child sex-abuse area.

(Nor am I here implying or insinuating that the damage caused by the sexual abuse of a child ‘ain’t but a thang’. I am concerned for the integrity of scientific inquiry and research; without such comprehensive and independent study of the problem we can never know whether our expensively-funded legislative and policy ‘solutions’ will actually work and do so without creating even more problems than the one they were erected to solve.

After all, look what happened to the general SO laws, supported by all those ‘scientific’ Findings by legislatures. (But bolstered increasingly not by arguable Findings so much as named after this or that victim – as if emotions could substitute for accurate knowledge of the problem the law was meant to address.)

In this regard, the strange career of two authors and their smash-up success of a book remains greatly instructive. (See here for a general overview .

In 1988, two individuals – a creative writing professor and her student, both feminist activists, and one claiming to be an incest ‘survivor’ (as in Holocaust survivor), and neither with any training in therapy, psychology, psychiatry or anything else of any relevance to their topic – published a book entitled “The Courage To Heal”.

The book purported to explain how one could discover if one had been sexually abused by one’s daddy (or other older male relative), using handy checklists of questions to ask yourself, the answers to which would inevitably ‘prove’ that whatever had gone wrong in your life was surely the result of your daddy having abused you as a child, whether you remembered it or not (thus instantly creating the ‘recovered memory’ industry).

The book became an overnight success and the authors became overnight ‘scholars’ and ‘experts’.

Even at the time, objections were raised by competent professionals that their conclusions (more like unsubstantiated assertions, really) were scientifically and clinically groundless and their recommendations might well cause more harm than help for those who took the book to heart.

Professional concerns were especially raised about what in scientific circles is politely called “confirmation bias”: you tailor your results to find exactly what you want to find and nothing else. Sort of like Soviet ‘science’ where you had better ‘discover’ what Moscow wants you to discover and nothing else – or else

To which the new ‘experts’ replied that you didn’t need a professional education and training to ‘help’; all you needed to do was to ‘listen’ and ‘support’ and all would be well.

Which, for the two of them and the pandemonium of cottage-industry provider ‘therapists’ that immediately sprang up proved to be exactly what happened. Especially as Congress jumped on the bandwagon with both big feet, both hefty thumbs on the scales of Science, and that hefty checkbook from the Bank of the Beltway and its bottomless hoard of Golden Eggs.

The book went through a second edition in 1990, and then a third in 1994. The third even included an Afterword entitled “Honoring the Truth”, written by some nonentity with no substantial professional training or credentials, who – speaking for the authors – ‘addressed’ the ‘scientific objections’ by merely calling the doubters “insensitive” and disrespectful to the experience of all victims.

But – get this – even despite all of this substantial professional doubt about the basic validity of the authors’ assertions (they never did get around to making their ‘research’ available to any other scientists for independent evaluation and testing) Bill Clinton invited one of them to the White House as an acknowledged expert on a grave and vital matter of great national importance, and an outstanding advocate of … and so on. The only good news was that Bill didn’t lard on some of those clunky Soviet encomia by which Moscow rewarded those it found useful: Indefatigable Hero of the Three Year Victim Plan! Stalwart Toiler for the Empowerment of the Downtrodden Masses! Stakhanovite Leader of the Ten Year Solution Plan!

By the time of the 20^th anniversary edition in 2008, so much criticism, substantiated, had been amassed that the Afterword was quietly dropped out of the book.

And yet for many, the consolations of such ‘science’ are still held closely to the heart like a teddy-bear. And God help anybody who tries to take teddy away.

You can see what sort of message all of this sent to serious scientific researchers: the very highest levels of government – controlling the grant funds at that – were no longer in the business of seeking accurate and painstakingly analyzed and re-analyzed and verified knowledge. Policy and legislation would be based on other stuff. And so scientific ‘success’ would also have to be based on other stuff.

In the specific matter of the SO Mania, the ‘science’ driving it was the ‘advocacy science’ that already knew beforehand what had to be ‘discovered’ and ‘proved’. Nothing else was acceptable to the money-bags pols or to the advocates.

In the larger sense, the cutting loose of truth and consequences - by the government even more than by the academic elites – has led to dangerous regressions toward Leviathan, the all-seeing and all-powerful police state that acknowledges no Higher Law (God) nor any prior Law (the Framing Vision and its values and principles.)

Again I point out, then, that so much of what drove and is still driving the SO Mania Regime(s) has now migrated into other vital areas of national activity, foreign as well as domestic.

So much remains to be done.

CASSANDA KENNEDY RECANTS

On April 4^th Huffington Post reported in an article that a 23 year-old woman who at the age of 11 and in the midst of her parents’ divorce process had accused her father of raping her – for which crime he was convicted and served 9 years of a 15 year sentence – recanted her accusations and said she had lied. She said that after some years of rehab for addiction and participation in a Christian religious community she could no longer live with the guilt (she is currently overseas working in a mission in Africa). The current DA notified the court and the father has been released; the DA said she will not prosecute the young woman now since it would discourage others in a similar situation from coming forward.

The Huffington Post site got 1500 comments within 6 hours and presently, after about 24 hours, has logged 4500 comments.

It is the comments that attracted my attention and which I will discuss here.

There are several themes that keep turning up in the comments.

One is that the woman (Cassandra Kennedy – hereinafter ‘CK’) is lying now but wasn’t lying then; and that she is doing this because she merely feels sorry for her father and/or wants the family back together again.

It is stunning how people will contort themselves (and reason and truth) to protect their accustomed way of looking at things. The possibility of a child lying under whatever pressures arose from or were exerted by elements within a parental divorce is rather clear. But the convolutions of possible ulterior or unconscious motives for telling the truth (besides the simple motive of just wanting to tell the truth) are a murky swamp of conjecture. But it is precisely into this murky swamp that so much of SO Mania thinking must inevitably take the legal system, the people involved, and the entire Citizenry’s estimation of the legitimacy and credibility of the law and its enforcement and its very creation through legislation.

A variant of the above is that she recanted because of “fear or not wanting to re-live the assault”. Whatever that might mean. That somehow, even if you are assaulted and tell the truth about it, then you will lie later because somehow that is supposed to help you avoid ‘re-living’ the assault? So the guilt of later lying is supposed to somehow assuage the memories of the original assault?

Nor is it sufficient to claim in response that somehow this is just an example of how ‘complex’ human psychological processes and emotions are; it is one thing to be ‘complex’ and another thing to be so irrational that you wonder how the species has survived this long.

But since there is no ‘human nature’ in the postmodern and secular world, then – truly – anything is possible, no matter how whacky, daffy, or lethally contrary to any common sense whatsoever. And there is always some ‘practitioner’ who would be willing to swear to it, and even more of that pandemonium who will gladly assure ‘consciousness-raising sessions’  (and legislators) that it is all very right and true.

Another theme is to blame the police interrogators a dozen years ago in the initial investigation; they should have been more careful and they should not have “jumped the gun”. But once you have gone and started a Mania, and gotten the media and the legislators to aid and abet it, and established the cartoon-type logic that if you don’t support it all, then you’re probably a perp yourself … then what can you expect from the police? Is the average police department or officer going to stand up in front of that speeding freight train and hold up his badge and expect it to stop for such ‘abstractions’ as truth and justice?

And as we have often seen, many law enforcement agents and DA’s will  hop on the train themselves, badge, gun, prosecutorial authority and all. It is fashionable nowadays to claim that the interrogation techniques used – especially with children – in sex crime cases are now much better; but the browbeating and leading suggestions and promises of ice cream cones for the ‘right’ answer and playing on emotions and threats and all of that … they were palpably wrong then and no decent and honest law enforcement agent would have engaged in them. But in a time of Mania, decency and honesty tend to get thrown off the train.

Especially when Congress and just about all the State legislatures helpfully added that bit in all the original enabling legislation that law enforcement agents who ‘mean well’ in pursuing SOs can’t be held criminally or civilly liable if mistakes are made. This is lethally similar to Nazi-era police advisories to the effect that the regime will not hold officers responsible for whatever happens when they encounter ‘Jews’ (and may very well hold them responsible if certain things do not happen when they encounter same).

And a variant of that theme is the cluck-clucking by advocates that it’s really too bad and who woulda thunk such things could happen? But again, you start a stampede and things like this are almost guaranteed to happen: the herd runs wild and may very well go right through town, ripping up stuff and trampling folks as it goes. It’s not enough to say – even if it were true – that you never intended all the wreck and dreck to happen and that you just wanted to ‘help’ and to ‘solve the problem’ (and that maybe therefore you shouldn’t be held accountable for having started the thing in the first place).

Another theme is that this story makes victims look bad and should never have been reported. For anybody concerned that the quality of media reporting is no longer reliable, the advocacy/victimist effort to manipulate the news and reporting in regard to sex-crime allegations is surely a key element in that lethal derangement of the media.

Seducing the media with the carrot of sensationalist and melodramatic Good-vs-Evil, Innocent-vs-Monster stories; suborning the media with agitprop threats to claim ‘re-victimization’ by an ‘insensitive’ press; luring the media with the heady offer to not simply report ‘history’ but to actually ‘make’ it … did the advocates not realize what poisonous consequences would most surely flow from such propagandistic strategies?

And a related theme is the insistence that while most sex-crimes are under-reported, yet ‘false claims’ are demonstrably very low (one commenter quoted government reports of 2-7pct). How can anybody possible determine that? The only way I can see is to merely tote up the number of recantations and extrapolate from that: if there have only been x-number of recantations in a crime-category, then that’s the percentage of false-charges for that category, as if the number of actual recantations is precisely equal to the actual number of false-accusations made in that crime-category.

But who really knows how many people have filed false police reports, committed perjury, and are still keeping all that to themselves while their targets languish in jail and/or on registries?  This is in too many cases just a self-serving sop victimists and advocates tell themselves to avoid having to face up to the horrors that their deliberately-incited stampede has caused.

Nor does it help when laws are passed enabling prosecution without a victim’s formal participation, thus sweetening the pot by perhaps sidestepping the dangerous matter of having to perjure oneself.

Another theme, though not widely embraced in the comments, is that the whole thing is sad but Jesus will sort it out in the end. I strongly support religious faith, but you can’t erect bad laws and endanger – let’s face it – the entire integrity of the legal system and even the legislative authority and then continue those bad laws on the assumption that ‘God will sort it out’ on His end. This is precisely the equivalent of that old saw about soldiers killing everybody they can find in a village and ‘God can sort’em out’. A nice brassy sound-bite but no way to run a war or run a country.

And God might well decide to take action sooner than expected. Even if that action is simply to allow a country thus so willfully deranged to suffer the consequences inherent in its bad laws and policies. The American SO Mania participates fully in the presumption that somehow God or some Invisible Hand will protect the country from the consequences of its official actions – and that presumption is truly unwise and actually reaches the level of an insane delusion.

Another theme is that ‘children never lie’ and you should always ‘believe the children’. But one commenter mentions that when being interviewed as a potential juror in the voir dire stage of an upcoming trial, s/he was asked by the prosecutor if s/he would be willing to vote for a Guilty finding only on the testimony of a child. No, s/he responded, because I have kids of my own and I know you can’t always trust them to tell the truth, even if they mean to.

And a final theme is that the justice system is “permanently broken” now. The insight as to the amount of damage done to the integrity (and perhaps legitimacy) of the judicial and legislative processes by all synergistic elements of the Mania stampede … that insight is accurate.

But the conclusion that the system is “permanently broken”, while it is a very clear and lethal danger, is not yet the actual situation.

But in light of how difficult it is to get bad laws repealed and bad convictions overturned, then we should not underestimate the problem we now face. The command staff has run the ship into a berg and ripped her open; nor is it willing to admit the problem.

But we are not merely ‘passengers’. We are the governors of the government in the Framing Vision. And for as long as the Framing Vision lasts in authority around here, then we – We – are still The People.

JOHN DEMJANJUK AND SO MATTERS

Apologies for the lack of Posts recently.

Before I begin this Post’s subject, I’d like to recommend a Post on my other site. I have been doing a mini-series on the Radical Feminist thinker (and law professor) Catharine Mac Kinnon, whose 1989 book “Toward a Feminist Theory of the State” was one of the first to present itself as a scholarly compendium of the essential Radical Feminist thinking that purported to justify a war on men and “patriarchy”.

In the process, she insists on the pursuit of the male perp, whose primary instrument of dominance, oppression, and hegemony is “heterosexual sex”, every single instance of which is nothing more than the commission of a criminal act designed to continue the subordination of ‘women’ (as she defines the term), and thus requires the most vigorous and invasive and impositional action by a government (Executive, Legislative, Judicial, and bureaucratic) that does not consider itself bound by “the rule of law”, which, she says, is nothing but an excuse for continuing “patriarchy”.

You may ask yourself why bother with ‘ideas’ from a book written almost a quarter of a century ago. To which I would reply: a) within a year of its publication we saw the rise of the Domestic Violence Regime and the Sex Offense Regime (and registries); and b) all of her ideas were incorporated into the basic laws and policies enabling these Regimes and those laws are still on the book and – worse – those ideas form the ‘knowledge’ upon which so much of government acts when it deals with these matters. When making laws or deciding cases or making up policy and regulations, the Beltway denizens are operating on the vision that MacKinnon first put out there in 1989.

The Post about MacKinnon deals with the final section of her book, where goes into the legal philosophy that – she insists – justifies everything that the government would actually then do shortly after her book came out.

All of the other Posts in the mini-series on MacKinnon are very recent and by scrolling down the list of recent Posts you can read them if you wish. It is in this book, published on the cusp of the 1990s when the era of ‘governance feminism’ under the Clintons would bring in with it both the DoVi and SO Regimes, that you will find the ‘philosophical justifications’ for so much that has happened and still continues to happen.

Now to the matter for this Post.

The current (March 2012) issue of ‘Harpers’ contains an article about Ivan Demjanjuk, here.

Demjanjuk was (he just died this past weekend, on March 17^th) a Russian POW from the Ukraine, captured by the Germans in 1942, who took the German offer to work for the Reich (the alternative was to probably die in the German POW camps). He trained as a camp guard, was assigned to Sobibor, emigrated to the US in 1952, became an auto worker in Cleveland and a citizen (in 1958) when he changed his first name from Ivan to John, and lived out his life until in 1977 the DOJ’s Office of Special Investigations (OSI) sought to strip him of his US citizenship on the basis of his having been a camp guard at Sobibor during the war.

But in working with the Israeli police to maybe get in touch with Sobibor survivors who could testify as to his identity, the OSI received an odd report from the Israelis: while none of the then-living Sobibor survivors (it was a small camp, as camps go) could identify him, an increasing number of Treblinka survivors were identifying him as “Ivan the Terrible”, a guard who literally operated the gas-chambers at Treblinka.

I have previously posted on the relevance of Adolf Eichmann’s 1961 trial to later developments in victim-friendly or ‘victimist’ law and legal procedures, and thus ultimately leading to the SO Mania Regime.  I want to look at this case from that point of view.

On November 30, 2009, in Germany, Demjanjuk’s last court trial began.

It was popularly dubbed “the last great Nazi-era war crimes trial”, although as the article’s author notes, that moniker is not accurate on almost all counts: Demjanyuk was a Russian and not a Nazi; the trial was not for war-crimes since the extermination of camp victims was not envisioned as a war-crime when it was committed (and even now is more properly a ‘crime against humanity’).

And in the matter of ‘greatness’, the author questions whether this then 90-plus year old man, a low-ranking guard, could really and legitimately be considered as standing equal to the high-ranking Nazi architects of the Holocaust and the entire camp extermination Plan.

But you have to work with what you’ve got, in ‘symbolic politics’ as in ‘symbolic justice’ – where you want to ‘send a message’, first and foremost, and the particular facts and issues pertaining to the particular accused that you’ve got are distinctly a secondary matter.

Imagine, for example, in this regard, if Islamacist operatives were to stage a trial of a captured US private as if he were legitimately the author of the Global War on Terror. Sure, they’d like to have one of the Bush Administration biggies in front of their videocam, but they’ve got to make the most of what they have on hand. (Not that this problem will make much of a difference for the captured accused, as the SO community well knows.)

In the courtroom, the largest and most secure available, “the atmosphere is festive” – which is never a good omen for the conduct of decent justicial proceedings and hints at far deeper (and yet also shallower) and much more powerful forces operating on the proceedings (a dynamic not unknown to the SO community).

At the beginning of the second session in the afternoon, the accused is no longer in a wheelchair as he was in the morning’s opening session, but rather is flat out on an ambulance stretcher.

This instantly attracts the ire of the attorney for the victims’ families (allowable in German law) who – rightly – is concerned for the ‘image’: “The picture it projects is disconcerting”, he objects. And he’s right. So much of these ‘show-trials’, designed more to ‘send a message’ than to actually deliver serious and accurate justicial process, is concerned for ‘image’. Thus, as the SO community knows, the perp-walk, the media-saturated images of weird, un-natural-looking monster stranger sex-offender that have been neatly implanted in almost everybody’s mind before the trial even begins … all part of the show.

Nor do I pass over the fact that the defense counsel realize this too, and try to work the dynamic in their client’s favor.

A compromise is eventually worked out: the accused may stay on the stretcher, but must be propped up at a 45-degree angle. It simply wouldn’t look right for the weight of the law to be seen as coming down upon a 90-year old man flat on his back on a stretcher.

The old man then starts into a demanding regimen of making contorted though silent expressions of physical pain. The general consensus, the author notes, is that the old boy is faking it and “the defense is overplaying its hand”. I would not disagree.

But what can a legal system expect? It has already introduced the ‘show’ dynamic into the entire process and the consequences for the accused of being found guilty are grave indeed. Any introduction of this ‘show’ (or, more politely, ‘educational’) element in a trial-process is inevitably going to skew what should be the primary processes and objectives of a trial. Especially in a time of Mania, when not only the public but all the formal participants are subject to the Mania’s powerful gravitational pull.

And what can you expect when your dynamics have even led to popular billing as “the last” Holocaust case? Recall the increased and intensified attendance at, say, Yogi Berra’s or Ted Williams’s last game. This is not a flippant or unserious comparison: the dynamics of advertising and nostalgia have been deliberately introduced into judicial process as a constituent element of the Mania, and not by the accused. As the author says, such billing tends to “galvanize attention” – which is good advertising and good show-business and good politics (as it is now practiced and defined), but it is not at all a helpful guarantor of good justicial process.

His first trial back in the 1970s was held in Israel (for technical legal purposes in American law). It was held not in a court-room but in a “hastily converted public theater” (how revealing such choices can be, no?).  It was broadcast live on TV, as Eichmann’s in 1961 had been live-broadcast on radio. The Israeli’s have always realized the vital ‘educational’ value of this type of trial. He was billed as "Ivan the Terrible" from Treblinka.

The key piece of evidence was his combination service-record and ID card, issued by the SS training facility for Russian POWs at Trawniki in 1942. The ID photo is unarguably of a young Demjanjuk (at that time his first name was Ivan); but then the card indicates assignment to Sobibor but never to Treblinka (which is where the Treblinka survivors place him and theirs is the only testimony – the Sobibor survivors can’t place him at all).

Demjanjuk’s defense was that they had the wrong man: he had never served at Treblinka. He didn’t, however, help matters by then denying that he had ever served as a guard and that the SS ID card was a fake, whether fabricated by the Americans, the Israelis, or the Soviets (it was their curious turning-over of captured German concentration-camp files to the West in the mid-1970s that had implicated Demjanjuk, a Ukrainian by birth, in the beginning).

But, as the author notes, it was the three-judge banc of Israeli Supreme Court Justices who made the most egregious “missteps” (rightly, they can’t be called ‘errors’). “In terms more fitting for a public memorial than a legal verdict” they pledged before the trial “to erect, in our judgment, according to the totality of the evidence before us, a monument to [the victims’] souls, to the holy congregations that were lost and are no more”. (And upon those congregations be peace.)

You can only imagine how SO trials might have revealed their darker dynamics more clearly if American practice allowed judges (or juries, which were not an element in the Israeli trial) to make such clear public statements of purpose before (or even after) the trial: we will through this trial and our judgment erect a monument to the victims. But this is precisely the dynamic that drives so much victim-friendly jurisprudence and jurispraxis here nowadays, in the time of Mania law and trials.

Oh, and the bit about evidence. Not a problem, said the Israeli judges: this Ivan Demjanjuk we’ve got here has to be the same guy – or do you expect us to imagine that there were two Ukrainian young men both named Ivan who both trained as guards at Tawniki and both had big ears and both went bald in the same way as they got older? So this guy could have served at both camps and they just forgot to mark it down on his service-record - thus the judges dismissed the doubts. 

The Germans  … keeping incomplete files? The German military in its heyday?

The Israeli court – to nobody’s surprise – found him guilty and sentenced him to death.

But Demjanjuk – as was his legal right, even under Israeli law – appealed, and the appeals went on and on.

And as if to demonstrate that God is not dead, the USSR collapsed in the meantime. And their files were really opened up wide.

And from those files, more complete than the bits and pieces the Soviets had selected to give to the West in the mid-70s, it now seemed apparent that there had been two of them all along. The ‘shadow’ Ivan, whose last name was Marchenko, did indeed serve at Treblinka (and was last seen to history fighting with partisans in Yugoslavia).

So much, by the by, for ‘memory’ of matters and persons long past as a valid evidentiary source. Whether the Treblinka survivors made the mistake on their own, perhaps setting each other off like tuning-forks, or whether the Israeli officials realized it would really really be great if they could put Treblinka’s Ivan the Terrible on trial … well nobody will probably ever know.  At least until more files are released, if even then (these aren’t the type of things you put in court and prosecutorial files). Perhaps someday, when the SO Mania might have ‘gone away’, files might find their way to the light.

So the Israeli Supreme Court voided his conviction – in 1993. His US citizenship was reinstated in 1998.

But he was not off the hook, since he still had served at the Sobibor camp in some capacity, even if he hadn’t been the operator of the gas chamber levers at Treblinka.

And the OSI over at DOJ was now really on the spot (which meant that Demjanjuk would be on the spot, since when government and police agencies now have you in their sights you are never really going to be ‘safe’ again).

The OSI had been doubly embarrassed: the Israeli case had collapsed and a US court found that the OSI had suppressed evidence during his original extradition hearing.

The OSI had to “vindicate itself” – and it was now a bit of a grudge match against Demjanjuk.

In 2002 they got his citizenship revoked again, this time on the basis of simply his Sobibor service.

But then no other country wanted to take him – and try him. More years went by and he ran out of money to defend himself. Finally, in 2009, the Germans decided to accept him – and try him.

The author notes the differences between German and American trial procedures: in the German system, there is no written transcript; the evidentiary rules are “minimal”, allowing hearsay, and past convictions as evidence in the trial; there is no jury – only a banc of judges that include three actual jurists and two ‘lay deliberators’ who actually do most of the questioning. The prosecution’s job is pretty much done once they’ve done the indictment and filed the charges.

In this regard, I can’t help but see why some victimist law advocates in this country would very much like to see the German criminal-trial system set up over here. Can you imagine what SO trials would be like if it were formally and legally permissible to introduce hearsay and record of past convictions? How much easier it would be to simply have to get some victim-friendly judges on the bench, rather than have to whomp up a Mania to make sure that potential jurors – even before they are called for duty – have been suitably soused and stampeded by a sensation-hungry and melodramatic media? And, as we have seen in the US military-law setting, ‘lay deliberators’ on the bench almost always is code for victim-advocates whose vote or input will help swing the judicial vote for the verdict in the ‘right’ direction.

To some extent this has already happened here with the erection of ‘special courts’ in ‘family’ (including domestic violence) cases. I recall one specially-trained judge telling some newbies that their job was simply to get the guy, who was always presumptively the perp in any of these cases.  Thus too, the advocates who want to see ‘special sex-offense courts’ with no juries and simply a judge who is ‘specially trained’ (indoctrinated seems more like it) in ‘the complexities’ of sex-offense prosecutions (i.e., there won’t be much evidence in the traditional sense, but you just go with the victim’s ‘story’ as if it were undeniably accurate and then nail the guy with your verdict).

And you may recall from prior Posts that this whole treacherous circus has now migrated to the military-law arena, where it is moving along at a much faster clip than most people can imagine.

The prosecutor was a former judge who retired but then signed on as a prosecutor and devoted himself to old Nazi cases for reasons of “a deeply personal nature”: his father hid Jewish families during the war and then helped them escape from Germany and he wanted “to leave a similar example for my children”.

So he got his hands on the original OSI-DOJ files and went to work.

Demjanjuk is then tried in Germany in 2009, which is the trial this article actually covers.

And the prosecutor came up with a then-novel theory of the case: Since Sobibor was so small a camp, then all of the small guard force had to have been involved in the extermination process somehow since it was in their job description from the get-go. Unless Demjanjuk had been merely a chef or some such, then the court could (and should and maybe had to) presume that even without any corroborating evidence, Demjanjuk participated in the Holocaust simply by virtue of his job description.

It’s a legitimate proposition for a theory of the case. Nor am I here trying to defend Demjanjuk on all counts.

But you see a dynamic here, which in the late 2000s cannot but have been influenced by victimist assertions (victims never lie and to question them is to re-victimize them officially) and radical-feminist assertions (men and heterosexual sex are presumptively and by their very nature dominant, oppressive, and assaultive and women so enthralled by patriarchy that at this point no women sober or otherwise can legally be presumed to be able to give consent).

The key dynamic in all these assertions is to get courts (and judges and juries) to mentally accept the ‘presumptive’ guilt of a class of perps. This is a dynamic that – however subtly – is strongly active beneath the surfaces of the SO Mania.

Thus, even before any particular trial, judges and jurors are operating on the simple mental assumptions that a) victims never lie and their stories are true and it is insensitive to question them and b) men are by nature sexual aggressors and maybe predators as well (a sub-variant of which is ‘all Catholic priests are pedophiles’ – that sort of thing, ‘common knowledge’ that ‘everybody knows’).

It works rather well, alas. Or, at least, we have not yet seen the end of this particular era of Mania presumptions.

But this was still an iffy theory of the case. German law still has (or had) a fuddy-duddy insistence on actual evidence rather than ‘presumptions’. This is a point which MacKinnon deals with (see that Post I hyperlinked to at the beginning of this Post) by simply insisting that ‘evidence’ and ‘facts’ and ‘objectivity’ and ‘judicial neutrality’ are all such ‘male’ and ‘patriarchal’ concepts and have to go, forthwith. Women, she says, ‘know’ by inhabiting their situation and their condition where they can feel the reality of what’s happening. And – as was true in the Salem Witch Trials and their reliance on ‘spectral evidence’ that only the afflicted victim could see – that should be, MacKinnon dreams, enough for any court of ‘real’ law.

Her dreams have come all too true, alas, in the past quarter-century since she wrote her book.

And – yes – German law has always had a problem prosecuting crimes committed during the Nazi era, and has made quite a point of demanding hard and conclusive evidence before convicting anybody who wore a uniform or followed orders during the Hitler years.

It may seem curmudgeonly, but the only alternative is to start down the road of ‘presumptive guilt’ and ‘spectral evidence’. A path which, alas, American victim-friendly law has all too willingly taken.

After all, how can persons who were ‘not there’ adjudge whether somebody following orders – especially the small small fry – really had any choice in the matter? It’s all well and good to think that if you’ve seen enough ‘heroic’ war movies then you can presume that everybody had a choice: but when the choice might have been Do This Or Get Shot And We’ll Shoot Your Family And Your Kids And Your Little Dog Too then – try to imagine it – what real choice does a person have in that situation?

A ‘choice’ like that instantly invalidates a marriage contracted under such circumstances.

The postwar German judiciary and legislature knew a really difficult problem when they saw it, and weren’t about to be stampeded into simply corroding the foundations and first principles of their justice system to ‘solve’ it.

But I digress.

Demjanjuk, as the prosecution’s theory of the case describes it, had to be guilty simply by virtue of his job description in such a small camp’s guard force and no further evidence was necessary for conviction. As the author sums up the prosecution’s theory of the case: “Facilitating murder was in the job description”.

German criminal law, however, does allow victims or their families to function formally – and with their own counsel – as “lay accusers”; which is, I would say, a shrewdly worded way of introducing victimology into the legal process.

As I said in my Eichmann Post, the Holocaust was so indubitably actual and terrible an event, that somehow those victims’ statements had to be heard; space had to be made for them in legal process when dealing with Holocaust cases.

The trouble, as I also said in that Post, was that victimology over here piggy-backed on the Holocaust: what should have been a unique and very real historical event and experience for which legal process might make singular exception, was instead quickly adopted as a metaphor for just about every conceivable victim’s victimization (proven or not, which was part of the plan from the get-go), and thus legal process became honey-combed (or termite infested) with exceptions for victim ‘stories’ about almost any alleged or perceived victimization.

And further, it was insisted, such derangement and deformation of legal process was not to be considered exceptional, but rather the Necessary and Good and progressive reformation of an older legal process that was clearly flawed by being so insensitive to the victim (and so patriarchal, if we add radical-feminism into the equation).

One survivor put things clearly: Demjanjuk was an old man and he should be allowed to go home; “what’s important is for victims to tell their story, to tell about Sobibor”.

As I said, in Holocaust matters there is certainly some justification for making exceptions – in some way not prejudicial to the trial process – and allowing those stories and experiences and memories to be told. Though not necessarily credited formally as being per se evidentiary grade material; as the author notes about one very elderly survivor who has participated in many such trials and recollection sessions, “he can no longer distinguish between original memory and the memory of memory”. Just so.

But again, to unleash this dynamic – and as Good and Necessary – upon jurisprudence and jurispraxis in any type of case is something else altogether. The ‘telling of the story’, when not a part of necessary evidentiary testimony, is secondary to the purpose of the criminal trial process; it has its place in the civil ‘lawsuit’ trial, but not primarily in the criminal process trial.

In the civil ‘lawsuit’ the government power is deployed merely to officially determine the facts as to the tort inflicted upon the plaintiff, and award under the authority of the government such ‘damages’ as may be determined proper. It’s between the complainant’s (or victim’s) private, personal interest and the defendant almost literally.

But in criminal justice process, it’s between the government – acting as representative of the public  interest (not necessarily the victim’s immediate and particular interest)- and the accused. And there the stakes (deprivation of liberty, property, or even life) are much much higher than the monetary awards of a lawsuit. (Although it's surely true that as a citizen (as well as an individual), the victim's 'interest' is served by the criminal trial's concern for the larger common weal.)

There remained one thorny problem: did Demjanjuk voluntarily participate? Could he have deserted or run away rather than perform his job-description?

This is, as I have said, tremendously difficult for a court to determine more than half a century after the fact. One historian testified that his researches indicated that many of the former-POW guards (maybe a fifth of them) did desert – although what happened to them afterwards and how many were caught isn’t quite so clear.

It’s almost impossible, now, to say with enough certainty to legitimately deploy the sovereign authority of the state to convict an accused, especially somebody accused of grave charges, and thus liable to grave penalties.  

Which can hardly be surprising.

And throws into bright relief the problem of prosecuting long-ago offenses, especially on mostly the uncorroborated memory of alleged victims (whose own memories may be distorted in a myriad of ways), and especially when the easier way out is to simply ‘presume’ guilt and get the thing over with and go home.

As it turned out, after a lengthy trial, the court deliberated two hours and found Demjanjuk guilty of the Sobibor charges, on May 12, 2011. He was allowed to live in a nursing home, where he died – refusing to speak at all about anything – just a couple of days ago.

Again, I make no defense of Demjanjuk, nor do I presume to know what circumstances he as an individual faced. At this point, if one were of a religious bent, one could surely be certain that the case will be handled much more quickly and surely at whatever Court he might now be facing.

But the dynamics revealed in this history of his trials surely yields for the SO community yet more evidence of what happens in a time of Mania and of government-abetted Mania.

So much remains to be done.