I was born in the year of the cop-out, double speak, dust bunny, group think, fairness doctrine, junk food, mass-market, neoconservative, split decision, swing state, tax shelter and wrongful death, among others. Don’t believe me? The Thesaurus offers the fun opportunity to enter your birth year and be presented with all the words that were first used in print that year. Oh, I forgot, kvell was amongst them, the yiddish term for being extraordinarily proud of something. The word is derived from the German word “Quelle,” a source of water erupting. Kvell’s counterpart is kvetch, habitually complaining, as I am known to do. It is derived from the German word “quetschen,” to squeeze to the point of pain. This as an entry, you guessed it, to another round of griping while reveling in the inventiveness of the German/Yiddish language. (Patience, we get to politics in a minute…)
Thinking of words was triggered by reading about the numerous phrases that German holds for pedantry or nit picking. Pea counters (Erbsenzähler) is among them, as is Korinthenkacker (‘currant crapper’) and Paragraphenreiter, which means ‘paragraph rider,’ related to the ways laws are numbered (§), laws that you insist on while doing it by the book, context be damned. Of course, pedantry about applying the law only occurs if it suits those who dispense it.
Take Germany, for example, and consider how unevenly justice was meted out for individuals and corporations that engaged in profiteering during the Nazi era. A new book by investigative journalist David de Jong, Nazi Billionaires, explores the ways how fortunes were made by German tycoons working within the Third Reich’s business and industrial structures. Already rich industrialists (with the exception of the founders of Porsche cars who started poor) profited from the production of weapons (forbidden by the Treaty of Versailles.) Then, with the introduction of the Nürnberg Race Laws, they disenfranchised and eventually expropriated Jewish businesses. Robbery and theft of business assets continued once foreign territories were occupied in those countries.
By 1941, they also used “forced slave labor from mass deportations of people from European countries and Russia, some 12 – 20 million people of whom more than 2.5 million died from horrific working conditions in factories, mines and work camps.” Besides deportations and prisoners of war, concentration camps provided slave labor for private companies, a collaboration of the SS with big companies like BMW, Daimler, Volkswagen, IG Farben, Siemens, Krupp, Dr. Oetker, and companies controlled by Günther Quandt and Friedrich Flick.(Ref.)
What happened to the these corporate perpetrators of crimes against humanity after the war? The book explores how only three trials were held, bringing Friedrich Flick and his managers, Alfred Krupp and his managers, and the entire executive board of IG Farben to justice. All other trials were canceled by the Americans, because they had policy interests that trumped justice. “The Americans limited the number of trials against industrialists because they didn’t want to put capitalism on trial. At that time, the Cold War was getting started, and the Americans made this policy decision where they wanted to rebuild West Germany as a democratically viable and economically strong state, which would act as a buffer against the Soviet Union and the encroachment of communism.”
So people were not dragged into court, were allowed to keep their assets (in the West) to stabilize the newly created republic, and never had to admit to culpability or take responsibility for their crimes. Historians believe that to be true for hundreds of thousands of people who escaped de-nazification under the sheltering embrace of the American occupying forces. Nowadays, some rich families do damage control (some billionaires give away money to relevant charities) often after public outcry. Others create foundations that investigate issues associated with macro-violence, or even recompense forced laborers directly, out of moral obligation, like the heir to the Reemtsma fortunes, fortunes which were partially derived from using slave labor in their factories. Before it went public at the stock exchange last September, Porsche, as another example, tried to remedy parts of its history by negotiations with the heirs of Adolf Rosenberger, the company’s cofounder, who was pushed out of Porsche in 1935 and erased from Porsche company history for being Jewish. But these are drops in the bucket compared to the overall numbers.
I wonder, of course, how much the dispensation of justice – or absence thereof – via the legal system, criminal courts, impeachment trials, ethics commissions and so on is guided by the very same mechanisms right here and now in the U.S. Putting our trust into the likes of the Muellers, Garlands, Smiths of the world might be naive in light of historical precedents that showed nations willing to sacrifice justice on the altar of economic and political imperatives. With the arrival of the 118th house of representatives and their interest in protecting the monied elites we will not even be able to hope for justice. As I write this, the Trump Org CFO Weisselberg was sentenced to five months jail for 15 years of tax fraud, in exchange for a guilty plea and testimony that concerned the Trump organization, but did not flip on Trump personally. The original charges implied a prison sentence up to 25 years. On a five month sentence, he’ll serve approximately 100 days. Compare that to a typical NYC public defense case where people are sentenced to 3-6 years (and will serve 1500+ days) for stealing a jacket. Justice?
70 years after the words first appeared in print, tax shelter, cop-out, double speak and fairness doctrine are as relevant concepts as ever. And now I go and chase dust bunnies.
It was not only industrialists who turned Nazi collaborators. So did the musical world overnight. Here is a Deutsche Welle documentary film (translated into English) that looks at some aspects of music in that era, including how it saved the lives of camp inmates.
As I write this on November 8th, the outcome of the midterm elections is uncertain – and I am a nervous wreck. The date has so many echos in history, some good, some bad. In 1895, Wilhelm Röntgen accidentally discovered the x-ray, a boon to medicine. On this day, Hitler started the Beer Hall Putsch, a (for now) unsuccessful attempt to overthrow the German government. An attempt to kill Adolf Hitler and other high ranking members of the Nazi party during the 16th anniversary observances of the Beer Hall Putsch failed in 1939. In 1994, the Republican Party won control of both the Senate and the House of Representatives on 11/8 for the first time in over forty years. And on November 8, 1978, President Jimmy Carter signed the Indian Child Welfare Act (ICWA), a law enacted to address the crisis of Native children being separated from their families, communities, and cultures, the gold standard for child welfare policies and practices. Decades if not centuries of children stolen and a culture to be extinguished were supposed to be a thing of the past.
If you read this on November 9th, the constitutionality of the anti-genocidal ICWA is argued in front of the Supreme Court, with 4 cases consolidated under Haaland v. Brackeen, challenged by non-Indian families who wish to adopt American Indian children, along with the state of Texas and three other states with very few Native inhabitants. They are represented pro bono by Gibson Dunn, a high-powered law firm which also counts oil companies Energy Transfer and Enbridge, responsible for the Dakota Access and Line 3 pipelines, among its clients. (A date, by the way, equally if not more ominous than November 8th: a night of coordinated waves of anti-Semitic violence in 1938, known as Kristallnacht, for the many glass windows broken in Jewish stores, homes and synagogues, 30.000 Jewish men imprisoned, the beginning of he Holocaust.To add insult to injury, the Nazi regime blamed the Jews for the riots and imposed exorbitant fines on Jewish communities for the damages. Never forget.)
Ostensibly the Brackeen case is about the right of White parents to adopt American-Indian children, but at closer inspection, it is the first step in a far broader attack on tribal rights and sovereignty, one that ultimately aims at control over land and extraction of resources. I figure, rather than biting my nails over the election outcome, I’ll try to fill you in about what is at stake with courts that are stacked – and might be ever more so. (Detailed information about the case can be found in a terrific podcast, This Land, by Rebecca Nagle, (Cherokee Nation,) in an overview by Lakotalaw.org. and an essay in yesterday’s VOX. I am summarizing below.)
The Supreme Court is asked to decide on basically two major issues. Plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda. In other words, White families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights associated with the Commerce Clause – two dogwhistles frequently linked to the desire to dismantle anti-racist policies.
So, legislation consciously designed to undo genocidal, racist policy is claimed to be racist because it gives preference to Native families to adopt native children over the rights of Whites. Never mind that Native status is a political designation (seeMorton v. Mancari) and not a racial one. And with that political status come certain rights – tribal law and sovereignty included. According to the ACLU:
“Tribal sovereignty is the right of tribes — 574 currently recognized by the federal government — to make and be governed by their own laws. This sovereignty is inherent, as Native Nations existed long before the creation of the United States. Hundreds of treaties have guaranteed tribal nations the right to self-govern. Through these treaties, Native Nations gave up their right to millions of acres of land that would become the United States in exchange for promises to tribes, including the guarantee that lands “reserved” for tribes would be governed by the tribes in perpetuity. The outcome of Brackeen v. Haaland could put centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves — in jeopardy.”
Under the guise of “equality” language, Native tribes’ federal protections and rights are supposed to be gutted, with tribal rights claimed to violate the rights of individuals. The framework upheld by ICWA “is the same federal framework that recognizes the inherent right of Tribal Nations to protect their sacred sites, burial grounds, and drinking water. If the Supreme Court chips away at Tribal sovereignty, oil and gas companies will have a clearer path to extract fossil fuels on Tribal lands without the consent of Tribal Nations.”
The pro bono lawyers for the plaintiffs have previously represented Walmart, Amazon, Chevron, Shell and Energy Transfer, the pipeline company behind the Dakota Access Pipeline (DAPL) that indigenous people have protested against at Standing Rock, which cost the pipeline company upwards of $7.5 billion. Indigenous resistance worried the oil industry and only seven months after the indigenous camps in North Dakota were shut down, Gibson Dunn filed the case that is now in front of the Supreme Court in federal court.
Vultures, all.
This is of course not new. In the 1950s the same argument was used by Western States congressmen to terminate tribes: Collective rights of tribes shouldn’t trump individual rights of US citizens. The results were catastrophic. The legal abolition of dozens of tribes led to the privatization of their lands for the benefit of white settlers and businesses. Now as well, it is not only the children who will suffer, although studies across the last decade have shown how much they do. In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from their families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes. Yet today, after ICWA was established, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements. (Ref.)
But a potential ruling of the ICWA as unconstitutional has further consequences. The plaintiffs’ arguments about the commerce clause (the other leg they stand on in addition to claims of reverse racism) could potentially invalidate much of the last century of federal law — including landmark statutes such as the Affordable Care Act, the ban on whites-only lunch counters, and the federal ban on child labor. It is questionable if the Supreme Court would go this far. But then again, with this court you never know. I guess worriedly biting my nails will not stop after November 8th….
Photographs today are from Texas, where the case originated. Images are of missions, the church actively involved in the “reeducation” of Indian children and erasure of tribal language and culture, and some photographs from hikes.
The idiom “Pig in a Poke” refers to a person making a purchase sight unseen and getting something inferior to expectations. It’s assumed to come from butchers wrapping lesser cuts of meat in a sack—a “poke”—for unsuspecting customers.
This came to mind when learning about recent deliberations of the Supreme Court in a case brought on by the National Pork Producers Council (National Pork Producers Council versus Ross – (Ross is the Secretary of the California Department of Food & Agriculture.)
At stake here is the 2018 California Ballot Initiative 12 that required bigger cages for certain farm animals, including breeding pigs, veal calves and egg-laying hens on moral and health related grounds. People overwhelmingly approved the measure which prohibits sales of pork meat in CA if it was raised outside the standards set by morality and health considerations, whether inside or outside the state. (To give a sample argument: the way sows are raised now in cages in most parts of the US would be like a human spending their entire life span more or less in an air plane seat.) In effect voters decided by a large majority that the half million pigs slaughtered each day in the US should have better lives before their demises, across the country, if they wanted to be sold in CA.
Big Meat sued, arguing that since 99% of the pork sold in CA comes from outside its borders, California was essentially imposing its laws on other states in violation of the U.S. Constitution, specified in the Commerce Clause. Their argument was supported in court by the Biden Administration: it would throw “a giant wrench into the workings of the interstate market in pork.”
So what is this (dormant) Commerce Clause invoked by the pork producers?
“It is basically a principle that the court has implied from the text and the structure and the history of the Constitution that is understood to limit states ability to burden interstate commerce. So specifically, states under the dormant commerce clause are not supposed to be able to discriminate against out-of-state commerce.”(Ref.)
As an example, Oregon could not prohibit sales of goods imported from Texas that are not produced with Union labor. Texas could not prohibit sales of fruit raised and harvested by undocumented labor in California. Political standards couched in morality issues, in other words, are not legitimate to justify disruption of commerce. Goods and commerce cannot be discriminated against by one state imposing their preferred regulations on another.
Hm. How do we think about this specific case? Should the voters’ will to protect animal rights be upheld? I predict most of us would spontaneously say, of course! I don’t want to participate in animal cruelty and so I don’t want the proceeds of that being available in my state, if only to force pork breeders across the nation to improve their practices. I will not be complicit in immoral activity!
It is more complicated than that, though. (When is it not?)
If we open the door to allowing our moral considerations to impinge on other states, then the reverse is also true. Their’s can affect us. The most obvious issue is abortion as a health care right. The sales of abortion pills sent from one state to another, abortion travel to abortion providing states, criminal pursuit of abortion providers across state lines are all potentially affected by a SC ruling that would affirm the law’s constitutionality. So would be measures concerning climate change (a law preventing, for example, any sales of goods that produce pollution, on the basis that it is immoral to burden future generations with our planet’s destruction.) Or state legislation involving union busting, immigration, LGTBQ rights, gun control, you name it. Once you open the door to using immorality as a path towards prohibition, you enable all kinds of political maneuvering.
And who is to say which morals are superior? If a pork producing state says our moral imperative is to provide affordable protein to people which involves producing on the cheap (that includes tight caging,) is that preferable to the moralism concerning animal welfare? The fact is that we see ever increasing disagreements on what is and is not immoral. The culture wars have divided the country. For every Texas that allows private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy there is a California that allows any citizen to sue anyone who manufactures, distributes or sells certain illegal firearms. And in fact, during the oral proceeding in last weeks SC deliberations, the justices from both sides of the political spectrum were concerned with “Balkanization” of the country, something the Constitution worries about. Is legislation really about protecting your citizens, or is the intent to force your own values on other states?
What further complicates this case is the fact that Californians voted in this ballot measure on both morality and health regulations, and we’ll never know what mattered for what proportion of the voters. Health issues could confer a real justification to ban unhealthily raised pork – we know that disease flourishes in overcrowded pig factories and the rise in zoonotic diseases under those conditions is becoming more evident. The Justices asked questions about this as well. Justice Jackson suggested that a labeling of pork not raised under desirable conditions might be a way to warn CA citizens without forbidding sales outright – after all we have all kinds of labeling that warns about health related issues already on meat and other alimentation products.
And just in case you want to consider added complexity: here is a short but interesting introduction to the issue of Ballot Initiatives (like Prop. 12 was in CA) across the country for the midterms. Ballot Measures are tools that allow voters to pass our own laws directly, often with a simple majority of votes (not in Oregon, mind you,) not surprisingly adopted dring the Progressive Era. It is direct democracy, sometimes going over the heads of the states’ legislatures like when Maine, Idaho, Missouri, Nebraska, Oklahoma and Utah voters, for example, expanded access to Medicaid via ballot measure.
Pushback ensued. These days, many states are trying to make ballot initiatives harder to pass, by changing rules of the number of signatures required, or the qualifications of those collecting signatures, and now by direct vote on restricting ballot measures themselves, almost all of them in Republican held states. Critics of (democratic)California’s penchant for direct democracy also say it has led to higher taxes and a not-in-my-backyard mind-set, exacerbating a housing crisis and driving away businesses.
A ruling on the pork case is expected next summer. It might be a pig in a poke – a win for California could open the lid of Pandora’s box: allowing the growing ideological divide between the states to regulate — and respond to — actions in other parts of the country.
By the way, today’s photograph are from a pig farm that only cages the nursing sows when safety issues demand it. The pigs have plenty of inside and outside room to roam.
Here is Hausegger’s song about his piggy….. based on a Robert Burns poem.
What will I do gin my Hoggie die? My joy, my pride, my Hoggie! My only beast, I had nae mae, And vow but I was vogie! The lee-lang night we watch’d the fauld, Me an my faithfu’ doggie; We heard nocht but the roaring linn, Amang the braes sae scroggie.
PS: My computer needs maintenance – if I don’t post in the next days it’s under repair. Too many cookie crumbs…..
“Most of us, no matter what we say, are walking in the dark, whistling in the dark. Nobody knows what is going to happen to him from one moment to the next, or how one will bear it. This is irreducible. And it’s true of everybody. Now, it is true that the nature of society is to create, among its citizens, an illusion of safety; but it is also absolutely true that the safety is always necessarily an illusion. Artists are here to disturb the peace.” – James Baldwin “An interview with James Baldwin” (1961), in Conversations with James Baldwin.
It seemed counterintuitive, no, odd, really, that my first reaction to a piece of gorgeous, intense, riveting music were thoughts about visibility. After all, what we perceive is more likely associated with visual media, film in particular, and yet here I was surrounded by sound, listening to the orchestra dress rehearsal of The Central Park Five, Portland Opera‘s upcoming production.
Left to right: Donovan Singletary as Antron McCray, Bernard Holcomb as Kevin Richardson,Victor Ryan Robertson as Raymond Santana, Aubrey Allicock as Yusef Salaam, Nathan Granner as Kharey/Korey Wise.
Maybe it’s not so odd after all, when you consider that truly good art makes things visible that are otherwise hidden beneath the mere consideration of images or words. Maybe it is the emotional reaction that music in particular can stir up that connects you to what lies invisible under the surface of narratives. This might be particularly true for stories that you intellectually witnessed in your own time, and thus think you have a grasp on, until art opens up a different dimension previously foreclosed, disturbing the peace. That said, the video projections, the lighting and two opera stages on top of each other, echoing separate worlds and power hierarchies, visually helped intensify the emotions.
On top stage: Hannah Ludwig as the Assistant District Attorney, Johnathan McCullough as The Masque (he plays numerous white characters across the opera.)On Bottom stage, left to right: Aubrey Allicock as Yusef Salaam, Nathan Granner as Kharey/Korey Wise, Bernard Holcomb as Kevin Richardson, Donovan Singletary as Antron McCray.
The Pulitzer Prize winning opera composed by Anthony Davis (Libretto by Richard Wesley, conducted by Kazem Abdullah,stage directed by Nataki Garrett) recounts the horrifying 1989 tale of innocent youths (aged 14-16) accused and convicted of beating and raping a woman in New York’s Central Park, after they falsely confessed but then recanted, with no physical evidence connecting them to the crime. The story focusses on the many aspects that led to this outcome, with lasting damage done to the defendants despite the eventual vacating of the verdict, when DNA evidence and the confession by the true perpetrator exonerated them. The case made salient the racial inequities in our criminal justice system. The $40 million settlement with the state of New York did not buy back the time lost and sorrow inflicted on kids (and their families and communities) as young as 14 years of age, spending years incarcerated (the one 16 year-old 13 years in adult prison!) for a crime they did not commit.
For me, the music captured the tension inherent in an adversarial system built into the criminal courts, the racism both structural and individually applied that so often erupts in cases of violence against white women. It also echoed the preconceived assumptions about crime-prone black youth, and the career ramifications for police and DAs as well as aspiring politicians like a former president who involved himself in fashioning public opinion in what turned out to be a stepping stone to an election campaign.
Christian Sanders as Donald Trump
The music conveyed the fear, the paralysis, the disbelief of the victims of procedural malfeasance. For me, it made the legal and social injustice of this case visible at a gut level, allowing us for a short while to walk in the defendants’ shoes.
Others at OregonArtsWatch, who know much more about music than I do, will write about the Portland Opera production in coming weeks. What I want to do today instead, is to make visible, from my perspective as a former lawyer and psychologist, how this is not an isolated case, however brilliantly captured by Davis and the musicians who moved me so. Let’s look at both the myths surrounding false confessions and the general processes that can create them in ways they affect criminal trials every single day.
***
I believe that many of us share deep concerns about our legal system. The U.S. has 5% of the world’s population, but 20% of the world’s prisoners, a huge number especially when we consider the horrific circumstances that define incarceration (Ref.). In addition, black Americans are incarcerated 5 times the rate of white Americans (Ref.). Blacks constitute roughly 14% of the U.S. population, while in some states they constitute over half of the prison populations. You have to worry about what these numbers mean.
Moreover, there is no question that the legal system routinely makes horrible mistakes, including getting the basic facts wrong, as the Innocence Project has proven with the high numbers of DNA exonerations they have brought about. Specifically, scholars talk about myths, that pervade and erode the legal system. One example includes the so-called sexual assault myth – the idea that the prevalent form of sexual assault involves a stranger leaping out of the darkness. The reality is instead that sexual assaults are vastly more likely from someone you know. Given that the American legal system counts on the common sense of jury members to reach a sensible verdict, we have a problem if some common sense beliefs are mistaken and rely on myths: it can have tragic consequences in the legal system and elsewhere.
Left to right:Elliott Paige as Antron’s Father, Babatunde Akinboboye as Raymond’s Father, Ibidunni Ojikutuas Antron’s Mother, Jazmine Olwalia as Sharonne Salaam.
A different set of myths concerns confession evidence, starting with the widely held belief that false confessions are quite rare. And here the common sense appeal is powerful. After all, why would someone confess to a crime, and invite punishment, for something they didn’t do? As a related myth people assume a false confession would only be produced by someone who is mentally ill or attention-seeking, or someone who has been physically coerced (yelled at, threatened, beaten) by the police. (Ref.)
All texts are photographs of the supertext panels that displayed the words that were sung. Surtitles were written and produced by Ethan Cope Richter.
There is no doubt though that these myths are myths. For example a national database of exoneration cases shows us that 13% of the cases involve confessions we now know to be false (another take by the Innocence Project that relies on DNA evidence only, claims the rate may be as high as 1 in 4.) The numbers get worse, much worse, if we zoom in for a closer look. In the same database, among exonerated juveniles, 36% involved confessions we now know were false, and if you look at the youngest juveniles in this data set (12-15 years old) 57% confessed to a crime they did not commit. These were, of course, the ages of 4 of the Central Park Five. Kids this age are less mature, more impulsive than older ones, they are more gullible, and they don’t always think about long-term consequences.
***
How is it possible that there are so many false confessions? Let’s look at the interrogation process. Police have become remarkably skilled in what scientists call “psychological coercion” (note not physical coercion). This process involves many specific levers, often used in a back and forth combination, but there are three overarching themes. First, no matter how many times the suspect denies the crime, these denials are refused, ignored, or rejected, or even sneered at. The message to the suspect therefore is that not confessing is not an option. To drive this point home, this process can stretch out over two or four or ten hours, leaving the exhausted suspect too tired to resist, and eager to do anything to escape the interrogation room. To up the pressure, police do most of the talking, set the agenda for topics of conversation, decide when breaks are happening and in classic settings – small room, no windows, no clock, no distractions, uncomfortable chair – they keep at it to maximize confrontation.
The second broad theme involves multiple efforts toward minimizing the cost of confessing in the eyes of the suspect. This includes offering the suspect a variety of excuses, “You were drunk, you were under stress, you just ran with the crowd, they asked for it!” and with these excuses the suspect might think s/he is confessing to something that is understandable and not so blameworthy. Often this minimizing is established via presenting a contrast: “We know you are not a terrible person; you’re just a guy who made a mistake.” The police also puff up whatever evidence they have (including utterly false claim about the evidence which they are allowed to make since they are legally allowed to lie in interrogations). The message to the suspect here is that they are likely to be convicted with or without a confession, so that confession costs them nothing.
The third major goal involves a package of strategies that suggest benefits from confessing. Police are not allowed to promise leniency, but they are wonderfully skillful at hinting at leniency along the lines of “How do you think the prosecutor is going to react when she sees that you stonewalled us? And how do you think she would react if you were open and took ownership of what you had done?” Interrogators also suggest psychological benefit from a confession once they have determined the defendant’s allegiances: they lean on religion, if they think you’re religious. They stress the aspects of healing of closure for the assault victim if they think you have some loyalty to the victim. They point at the responsibility towards the community if they believe you have strong links there.
Do these levers work every time? Surely not, but they work often enough that false confessions do happen and that is profoundly troubling because a confession of almost any sort virtually guarantees a conviction.
Johnathan McCullough as The Masque, Hannah Ludwig as the Assistant District Attorney
***
Why do police engage in these tactics? For one, and the data are clear on that, because they do result in factually true confessions a large percentage of the time. But many interrogators also deny the possibility that false ones are happening at all or are happening with regularity, or they are willing to tolerate this error. Secondly, police are explicitly trained to do interrogations in this way with many training programs across the country based on what is called the Reid Technique which instructs in the above-listed application of tools: coercion, situational control, minimizing the cost and maximizing the potential benefits of confessions in their communications to suspects. Even if officers have not had formal training, they learn about these tools from colleagues who had and so continue in this vein.
Police understand that their interrogation techniques are confrontational, often a determined push to confirm their suspicions by alternating carrots and sticks, and even coercive. Police believe, though, that we are all protected by two safeguards. As it turns out, both of the safeguards turn out to be hollow. One safeguard relies on the idea that police can figure out before the interrogation who is guilty and who is not, and therefore they aggressively push for confessions only with presumed guilty suspects. There is, unfortunately, overwhelming evidence, that most police officers when trying to decide who is lying to them and who is not, perform at a level only marginally better than a coin toss. This guarantees that they will use coercive techniques with people that they have wrongly decided are liars.
The other supposed safeguard comes after the interrogation, when police seek further evidence that will corroborate, or perhaps undermine, the confession. Here we run into a problem called confirmation bias, with the essential notion being that, once you have a confession, it biases what other evidence you look for and how you interpret what you encounter. The result? A false confession can invite the collection of further evidence that seems to support it, so that bad evidence leads to more bad evidence.
Babatunde Akinboboye as Matias Reyes, left, Nathan Granner as Kharey/Korey Wise, right.
What can be done about this, especially given how these issues interweave with strong patterns of racial bias? That bias manifests itself in some officers’ willingness to assume a black suspect is likely guilty and proceed accordingly in the interrogation. That bias is also evident in the power dynamic of an interrogation, with a police officer relying on social distribution of power to bully a black youth. There is also a tendency for interrogators (as well as teachers and school administrators) to bear in mind that a white kid is a kid, while failing to make the same crucial adjustments when interacting with a young person of color. Black girls are seen as more adult than white girls at almost all stages of development. Black boys are constantly judged to be older than they are (adultification) and, importantly, the older they seem, the more we consider them culpable. (Ref.) Finally, given the economic inequities in our country, a white suspect is far more likely to have decently paid legal representation compared to the resources available to POC.
Where does this leave us? Here, the importance of art. Narratives and documentaries can inform. Art can move, often in a lasting way. Will it move police officers to change their practices? Perhaps not. Will it shift legislatives votes? Likely not. But we’re at a place in which ordinary citizens can have extraordinary power. In a criminal trial, jury verdicts must be unanimous. (Ironically, this has been true in 48 states for years; it is only recently true in Oregon and Louisiana). On a jury, a single citizen empowered by this production, remembering his or her reaction to the music and the story it conveyed, introduced to reality rather than clinging to myth, can hold firm and may be the stalwart obstacle to decisions resting on false beliefs and leading to catastrophically wrong verdicts. Portland Opera’s choice of a timely and important piece of contemporary music, beautifully staged and performed, might have long lasting consequences and not just providing us with a riveting night at the opera. Art empowering justice
I started with a James Baldwin quote, so let me also end with one:
“Well, if one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goesto the unprotected—those, precisely, who need the law’s protection most!—and listens to their testimony. Ask any Mexican, any Puerto Rican, any black man, any poor person—ask the wretched how they fare in the halls of justice, and then you will know, not whether or not the country is just, but whether or not it has any love for justice, or any concept of it. It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.” – James Baldwin – No Name in the Street.
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Portland Opera presents:
The Central Park Five
Composed by Anthony Davis Libretto by Richard Wesley
The most revolutionary thing one can do is always to proclaim loudly what is happening. –Rosa Luxemburg
The air was crisp, the kind when wearing a glove is not required but debated. I ended up wearing one on my left hand, leaving the right free to handle the camera. There was no wind, the water still as a mirror. When the rain started the ponds looked like having goosebumps, or tears falling from the sky, I couldn’t decide which, since either applied to me as well.
Occasionally the stillness was disrupted into small waves from water fowl churning up food. Watercolor palette – beauty, and so quiet that I could hear myself think. Thoughts about the Rittenhouse verdict, only interrupted by unfamiliar duck calls and the flapping of wings. Thoughts about the fact that as an abolitionist you cannot wish for incarceration of an 18-year old. Thoughts that the injustice of this verdict, even if it was within legal bounds, will enhance vigilante tendencies in this country and encourage white supremacists to hunt down protesters with impunity. Thoughts that acquittal does not mean innocence, just that the prosecution could not live up to the burden of proof in face of this moral deprivation. Thoughts about the abundance of lethal weapons in the hands of angry people.
Thoughts that one of the key mechanism of change – education that reveals the truth – is actively and consciously undermined in the strategic playbook of the authoritarian Right. Thoughts that violence begets violence – the defense team of the acquitted party getting death threats, Oregon ACLU women representatives voicing their condemnation of the verdict receiving multiple threats of rape.
It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have. – James Baldwin.
Thoughts about how history repeats itself, thinking of the German Freikorps of the 1920s, roaming bands of armed young men killing political opponents without state sanction.
All things are subject to interpretation. Whichever interpretation prevails at any given time is a function of power not truth. – Friedrich Nietzsche
Thoughts about justice.
That Justice is a blind goddess Is a thing to which we black are wise: Her bandage hides two festering sores That once perhaps were eyes.
Thoughts that I am in the company of diverse others who provide solidarity.
Politicians:
Rep. Jerry Nadler: This heartbreaking verdict is a miscarriage of justice and sets a dangerous precedent which justifies federal review by DOJ. Justice cannot tolerate armed persons crossing state lines looking for trouble while people engage in First Amendment-protected protest.
Rep. AlexandriaOcasio-Cortez: What we are witnessing is a system functioning as designed and protecting those it was designed for. My heart still breaks for the communities and families whose grief now compounds, and the countless others who will be denied and deprived in similar scenes across the country.
Even with Rittenhouse not guilty, backfiring is always a possibility, whether it’s this young man going through life under constant suspicion by others or future acts of vigilantism waking others up to its dangers. Justice may not have been served, but Karma may still be around.
The Black Caucus: It is unconscionable our justice system would allow an armed vigilante — who traveled to Kenosha, Wisconsin and killed Joseph Rosenbaum, Anthony Huber, and wounded Gaige Grosskreutz — to go free.
Clergy:
BishopTalbertSwan: If you don’t take issue with white men and boys carrying AR 15‘s to protests against injustice and the extra judicial police shootings of Black people, you’re part of the problem.
Bernice King: Let me clarify that not being surprised does not = not being pained, traumatized and deeply disappointed.
Ethicists:
Walter Shaub: Anyone who has spent 5 minutes in the US or read a history book knows why the shooter got off — and that the judge and jury just sentenced us all to more of this.
Lawyers:
SherrilynIfill: Yes. As we’ve been saying – for decades. Truth? How we go forward is largely in the hands of white Americans. Is this the country you want? Because these outcomes reflect a system designed to protect your privilege. Are you speaking out, protesting, advocating, voting to change it?
Historians:
RuthBen–Ghiat: Right-wing playbook in a nutshell. Fascism started as armed bands in the countryside and cities killing leftists and progressive priests and getting away with it. King did not call on army to disband them during March on Rome Mussolini made PM. Read #Strongmen for the details.
Writers:
Elie Mystal: Well, that sucked, having to explain the verdict to my kid. Even though I clearly told him what *would* happen, he still didn’t believe me, thinking that I was “underestimating” the jury. I wasn’t. :(. Sadly, part of growing up Black is learning to never underestimate white folks. Travyon Martin was an unarmed 17-year-old kid. He was killed carrying a bag of skittles. The right-wing called him a threat. Kyle Rittenhouse was 17 years old and armed. He shot and killed 2 people with an AR-15. The right-wing calls him a hero.
Jacqueline Woodson: I’m broken-hearted but not stunned. I’m angry but not irrational. I’m done but not stopping.
Activists:
Paul Lee Teeks: BREAKING: Kyle Rittenhouse has been found “not black.”
ColinKaepernick: We just witnessed a system built on white supremacy validate the terroristic acts of a white supremacist. This only further validates the need to abolish our current system. White supremacy cannot be reformed.
KaitlinByrd: If you’re a white person feeling tired, violated, angry right now: imagine how Black people feel? We remember all the names you’ve forgotten.
ZakirKhan: White allies, we need more from you.
GeorgeTakei: Call me when they acquit a 17 year old Black defendant who was armed with an AR-15 and who killed two people at a Trump rally in “self-defense.” Until then, sorry if it’s hard to believe there is anything close to a level justice field.
And one from the past, who summarized why we cannot ignore the racial component in any and all of these miscarriages of justice: James Baldwin in a 10 minute exchange with a conservative on the Dick Cavett show.
Fighting the autumnal mood while uplifted by fall’s beauty, I am clinging to the words of a wise woman:
Let this radicalize you rather than lead youto despair—Mariame Kaba.
(Christian) Music today is usually sung during this time of the year (27th Sunday after Trinity, or during Advent, Bach’s Cantata Wachet auf, ruft uns die Stimme (Awake, calls the voice to us.) The incomparably beautiful Cantata is based on the Parable of the 10 Virgins, which basically says: Be prepared when judgment day comes. (The 10 virgins waited for the bridegroom to arrive at midnight. 5 had not brought enough oil for their lamps and so hurried to buy some, missing out on the arrival of the groom, forever left behind.) I think we can disregard the eschatological meaning, but take the sentiment to heart: Wake up, see what’s going on, be prepared. Change is on us.
