Jian Ghomeshi and the Law

The Jian Ghomeshi case, the accusations of sexual assault brought against the CBC host, and the trial itself, point out something I’ve referred to countless time in this blog. Whatever police and prosecutors might say to the contrary, the primary purpose of the law is not a tool to uncover truth.

We may not like the  judge’s decision nor the defense lawyer’s tactic of putting the accusers on trial, but the verdict was correct in the context of the legal game. It’s plain that Gomeshi engaged in rough sex–even physical viciousness–so people, especially advocates for victims of sexual assault, believe that he evaded proper punishment for his crime. They believe the complainants who maintained that the ‘sex’ took place without their consent. They are mistaking their interpretation of events, however accurate, for the workings of the law.

The case against Ghomeshi was fatally weakened by the stories of the complainants. They maintained contact with the defendant despite having been traumatized by his behaviour. In some instances, they attempted to cover up these contacts. Let’s say, for argument’s sake, that the behaviour of the complainants was understandable, that they were attempting to maintain some kind of control over the situation and their psyches. While this interpretation may be true, the law deals more successfully with external behaviour than internal states of mind. From this perspective, if one were to judge the actions of the complainants as if he or she were observing their external behaviour without interpretation, I think they might understand why the judge made the decision that he did.

On the other hand, I am repulsed when magistrates make moral judgments against people, just as I think that Judge Mertel’s scolding of Sebastian Burns was erroneous. These moral judgments assume a greater knowledge than a judge could possibly have. He conflates an internal state with an external behaviour, i.e. the women were attempting to deceive the court. But why would three women, two of them whose identities were protected, go to such trouble simply to deceive a court? Were they seeking revenge? The questions are very much to the point but the verdict of the trial has nothing to do with intuition.  The bottom line is “What is provable?” Neither Ghomeshi’s nor the complainants’ motivations are relevant; they are assumptions. What is known in a court of law is what can be factually proven. For better or worse, the defense attorney focused her cross examinations on the facts. A conviction against Ghomeshi, from that point of view, would have been a wrongful conviction. And yet, the truth behind this case may not have been addressed. It is irrelevant to the court. The paradoxical problem occurs when a person is wrongly convicted through legal technicalities and the truth is ignored. The irrelevance of truth cuts both ways.

Scientific Research, Criminal investigations and Tunnel Vision

In the February 29, 2016 edition of The New Yorker, an article by Dana Goodyear entitled “The Stress Test” perfectly describes the phenomenon of tunnel vision as applied to scientific researchers. The motivations of scientists and police and prosecutors are close if not identical:

Delusion and fraud exist along a spectrum of deceit–first you fool yourself, then others–and one measure of a scientist is his ability to see that he is mistaken.

Why are scientific researchers and law enforcement officials susceptible to tunnel vision? In the case of research, publishing the results of their supposedly experiments, such as the ability to grow stem cells, can lead to a Nobel prize, prestige, power and money. Do suchpeople fake results to get the rewards? Yes, they do. Do scientists plagiarize from others’ research? Yes, they do, despite the likeliness of being found out. A scientist who has published a groundbreaking experiment cannot prevent other scientists from attempting to replicate the results. Nor can that scientist be immune from the consequences of having cheated; often they lose academic positions and face humiliation among their colleagues.

Of course the major difference between researchers and law enforcement officials is the degree of scrutiny allowed in analyzing the results of an investigation and a trial. While an experiment is subject to immediate verification, a wrongful conviction takes a decade or three to come to light. Laws protect prosecutors and police from malfeasance, even if they knowingly cheated to gain a conviction. The conviction is more protected than the prisoner. Somehow, in this society, correctness in scientific experiments is considered far more important than correctness in verdicts. That bias is caused in large part by tough on crime politicians who think nothing of the possible victimization of innocent persons, especially those who populate the ‘underclass’.

So when prosecutors knowingly use faulty evidence, false confessions, bribed witnesses, faked lab reports and the like, they are conspiring in a wrongful conviction. It doesn’t matter if this work is done consciously for ambition’s sake or a product of self-delusion or even discovered; the perpetrator in the DA’s office is free to carry on to the next case. Only when a large body of these cases is associated with a single individual–say a cop like Louis Scarcella–is the person singled out and disgraced. Mostly the officials within that office who supported the rogue cop are left unscathed.

The difference between false scientific research and false convictions, then, is that the scientist faces consequences while the law enforcement individuals do not.

Delusion and fraud exist along a spectrum of deceit–first you fool yourself, then others–and one measure of a scientist is his ability to see that he is mistaken.

To this statement I would add: the true measure of a good law enforcement official is his or her ability to see that he or she is mistaken. 

As Rubin Carter said: “It should be a mark of distinction to admit error.” Sadly, it is no such thing. Admitting error within a corrupt system is treated as a sign of disloyalty to the group. That is why whistleblowers face being ostracized.