Hal--fem.jus.--on evidence and research methods--moderately long:-)

Feminist Justice--October 19, 1993

Dear People,

Many thanks, Jawn Bauer, for coming to class last night and speak as a former
juvenile prosecutor, oft-serving judge pro-tem, and private attorney known for
accepting sticky domestic relations cases. You took us through the legalities
and realities of trial practice very well, right down to straightforwardly
running through what it costs to hire a lawyer. (My understanding is that most
lawyers are not rich. You might be lucky to bill four hours out of each working
day--although some lawyers manage to bill every working hour--and overhead costs
a lot. Still, when I look over appellate briefs I often find myself thinking in
wonder: I could get several thousand dollars just to write one of these things
if I joined the bar?!)

It is seldom in any class that any two guests will introduce a topic with the
same message. I therefore found it particularly striking that you, Jawn, like
Jim Holland, the Bartholomew County juvenile referee, began by observing how har
most lawyers and judges try to avoid domestic relations cases, especially when
child custody or visitation is at issue. One of us just wrote that Jim's visit
restored her optimism that children could be helped. I feel comforted likewise
by your visit as well. By now I think all of us in the seminar are keenly aware
of how readily people walk away from the cries of children. On the one hand, yo
two validate that sense of problem. On the other hand, you show us that there
are human beings who serve as judges who are willing to become involved, and who
really do try to consider the evidence. I thought you offered a good tip on
weighing evidence last night when you say you look for evidence of coaching when
children tell stories. You seldom find it, but you are open to examining the
possibility. I store tips like these away as I refine my own method of
examining evidence of who has done what to whom in all controversies, child abus
allegations included.

Actually, Jawn, you concentrated on describing the importance to us of how we
gather and weigh evidence in the same way someone identifying her-/himself as a
social scientist would speak to us of research methods. I've long thought that
lawyers, journalists and "scientists" of all persuasions are really talking abou
the same problems of data collection and analysis, and that if one simply
translates the jargon of the one field into the jargon of the other, the same
issues arise. In academic criminology we identify "criminals" as entire people,
much as one might base one's reading of legal evidence on one's assessment of th
character of the accused. What I would call "radicals" in any field want to get
the most direct evidence they can from those involved in the controversy, and
consider character assessments unreliable. As Jawn put it, the mainstream metho
is to look at the upstanding guy in the suit with a strong community reputation
for virtue and say, as jurors have told Jawn, "I just can't bring myself to find
this guy guilty of child abuse." I was reminded of a conversation in my office
earlier in the day with Andy, an IUPD officer who formerly worked undercover, an
who had come to my big class with former Army Intelligence global drug enforcer
Sam Luckey and former Naval Intelligence officer and captain of a Coast Guard
drug interdiction boat in Florida waters Craig Berndt to talk about drug wars.
(They'll be back tomorrow.) Andy, who gave up undercover work last spring after
taking the big class last fall, was telling me how he would dress to make an
impression when he wanted to carry out a drug deal. I observed that I had found
it more reliable to look at a person's eyes than at the jacket the person was
wearing. Andy readily agreed. Or as Sam Luckey observed when he told us in the
big class that he was sure the FBI had murdered the Branch Davidians in Waco, "I
intelligence you're trained to look at the pictures, not to listen to what peopl
say about the pictures. When you turn on CBS news, turn off the sound of Dan
Rather and look at the pictures they've been showing of Waco. You'll see what
I mean."

In all these cases, the method boils down to looking through characterization of
actors figure out can and cannot have been done by the actors. It presumes that
no matter what one's record or community standing, any of us is equally capable
of hurting others. I can be a pillar of the community, kind and gentle, and
terrify my child or wife at home. For that matter, I can be a judge or a police
officer. Why not? Why should any of us strangers who present our cases be
presumed to be of more trustworthy character than anyone else? Most to the poin
in our seminar, why should an adult's word be accepted over a child's?

Jawn, you kept stressing that the adversary, hire-a-lawyer-if-you-can system of
factfinding obstructs getting at the truth of who needs and deserves what. If
it's any comfort, I keep complaining that the grading system I teach in is
designed to obstruct learning. The lesson I draw is that one cannot presume tha
all of us who make paid careers out of professions by the premises of the formal
systems we work in. If you need and can hire a lawyer, you can expect to find
one for whom justice is a struggle to overcome legal obstacles, not a surrender
of faith that the legal process will lead to the proper result in due course.
For that matter, you can contemplate becoming a lawyer or a police officer
without buying the formal premises of the organization which pays your salary.
I'd call that a basic human right, to say one's own yeses and noes, to decide fo
oneself whether one is helping or hurting those one is supposed to be serving.
This is generally what I think makes members of an American Society of
Criminology division I belong to call ourselves "critical" criminologists. We
don't have to move out of the field (or back to Africa) to work in it critically
Journalists like I.F. Stone, lawyers like Jawn and Jim, undercover drug agents
like Andy, Sam and Craig, all have the gift of the critical capacity in some of
the apparently most unlikely settings. We make a mistake prejudging their
characters by the jobs they take. (So, as Mary observed, Andre, after you told
us you have been cleared to become an FBI agent, go for it, and bring with you
the critical judgment and sensitivity to human rights you are showing in class.)
Watch the eyes, look at the pictures, listen for indications of what people are
doing. Don't be deceived by outward appearances, by signs of character--
reputable or disreputable. (Andy and I agreed that some of the most honorable
people we have known have been prisoners for instance.) Don't be deceived by
youth either. Consider that the smallest child may be trying to tell you
something important. Listen hard, take what the child does and says seriously.
All this amounts to a belief in a way of knowing which has its variants across
professions, across all walks of life in my experience, across all ages.

Many in class have been wrestling in their essays for how to restore credibility
to the legal system, thinking for instance in terms of oversight mechanisms for
judges. I'm glad to see people practicing this exercise, which amounts to
writing a constitution for how the state governs children's lives. Writing
constitutions should not in my opinion be left to lawyers and founding fathers.
The essential, ageless problem of constitutional theory is how to ensure that th
governors make the right decisions for the governed. The essential, ageless
anarchist/mystical premise is that if I and all the ordinary people around me
don't know how to do something, the expert or authority we annoint to make the
decision can and in due proportion will be as ignorant or unsuited to making the
right decision as we ourselves. No course of training, no background
investigation, no certification or investiture can choose from among us those wh
are truly, naturally/by god(s) qualified to make our decisions better than we
make them ourselves. Perhaps what goes around truly comes around now or
hereafter, perhaps there is a god or gods who wreak just deserts on oppressors.
Who knows? It could be, and I've decided I'll never know. For that matter, I
care less. The good, the bad and the ugly we have seen with regard to legal
childcare simply mirrors my capacity and yours, as in this seminar, to make
better decisions regarding children than those we have seen and heard. The only
way I can imagine educating judges or anyone else is to educate myself better on
how to distinguish what children really want and need. It is precisely because
it is so threatening to all of us to make these judgments about others' private
lives that the only way to get over is for us ourselves to practice making these
judgments ourselves. This could be a course in research methods, or a law schoo
course in evidence. It happens to be a course on what we can trust is safe and
right for suffering children. For me the problem is the same.

I'm heartened by the energy I see everyone who writes, talks or just stares in
class. You are manifestly struggling to figure out how to sort out what childre
want, need and deserve. Some of you want to draw paychecks in the legal system.
All of you anticipate somehow relating to children. Many of you are even
describing of how privately you have coped with having been abused or having
watched it happen to a brother or sister. All the messages I'm reading and
hearing in class tell me that private arrangements are much more highly develope
and dependable than legal arrangements for childcare. Unless you specialize in
legal childcare paid work, you'll probably confront abuse with children, or
striking signs of it, most of all at home or with friends. You will constantly
be confronted with what to make of the signs and of how best to respond most of
all without making things worse for the children. You will be confronted with
opportunities for sanctuary, as with some of the friends my daughter brings home


or in making hanging out on Kirkwood a safe sanctuary from violence at home on
Friday and Saturday nights. You will find yourself confronted constantly with
weighing how to help rather than hurt when you see others in pain. Here and now
we live in fear that we need to hire others even to make our meals, let alone to
deal with our children's pain. We find ourselves inclined to walk away from the
plight of this or that child, or this or that suffering adult for that matter.
We feel we cannot afford to get involved, and that we don't know enough to know
how to become involved. Some of us just happen to become lawyers who don't want
to enter appearances in such cases and judges who don't want to hear children's
and parents' cries. Ultimately, children are left to survive for themselves in
one- or two-parent regimes. Already in this class I see a lot less reticence to
evaluate what's going on with children than the problem judges and lawyers we
have read and heard about in class. That's as good a guarantee that the class
is helping protect children as any I can imagine.

Thanks again for coming, Jawn. Love and peace, Hal