Justice, Jury Duty, Case Dismissed

I wrote this a few years ago, for a volume called The Seven Deadly Virtues. I was in pretty exalted company — my fellow contributors were all writers I admire a lot, including (maybe especially) the late P. J. O’Rourke, an irreplaceable truth-telling genius.

(And incidentally, the whole book is still available….)

JUSTICE

Two weekends ago, on a Saturday afternoon, I made a tragic and irreversible mistake. 

I went to Costco. 

Which is not, of course, a mistake in general.  Big warehouse stores are great places to find roast chickens, gallon drums of mayonnaise, and batteries sold by the crate.  At my local Costco, I can guide a small boat-sized trolley through the wide aisles and fill up on enough garbage bags, pinto beans, and multi-vitamins to last the calendar year.  I love Costco so much, I often find myself yearning for the (inevitable, for Los Angeles) 7.0 earthquake so I can finally make a dent in my enormous stockpiles of Ramen and baby wipes.

The problem is, on a Saturday afternoon, everyone else is doing the same thing.  The spaciousness of the store and its radiating vibe of plenty are ruined by all of the other people banging into you with their giant carts or crowding around the pallet of vacuum-sealed ribs or creating long snakey lines at the register. 

On this particular Saturday, somehow, it was worse.  The place was so packed, I couldn’t even make it to the aisle where they keep the drums of ketchup.

“What did I do to deserve this?” I asked myself, as I threaded through the masses.  “I guess in a previous life I must have burned down an orphanage.”

Because, you see, that’s one way of looking at the idea of justice: it’s payback for some previous sin.   In a previous incarnation, I suppose, I was one of those evil warlords who marauded through the Steppes, or maybe a Dickensian villain who just hated orphans (“Those big eyes!  Those smudgy faces!  Are there no workhouses?”) and I did something truly evil – I burned down the orphanage, orphans and all! -- and now the universe is getting its revenge by making me wait thirty minutes to check out of Costco.

Payback received.

Justice, in this example, is really more like the ancient Vedic idea of Karma – that balancing force of nature that connects everything to everything else and punishes wrongdoing in ripples that radiate through many lifetimes.    It’s an irritating philosophy, obviously, because I’m almost entirely certain that any previous lives I may have had – and, for the record, I didn’t have any – weren’t spent marauding, but instead spent cowering in a hut somewhere wet and cold, or at the very most kneeling submissively before some psychopathic ruler while blubbering out ridiculous and desperate flattery.  I mean, that’s basically what I do in this lifetime.  (I work in Hollywood.)

In other words: what did I do to deserve this throng at the local Costco?  Answer: nothing.  If this is karma, then it’s unfair.  It’s unjust.  All I did, really, was sleep a little too late on a Saturday morning to beat the crowds. 

When seen that way, as a series of small needling pinpricks in your day – you slept an hour more on Saturday than you should have?  Okay, then, you’re going to face a crowded warehouse store – the exotic, incense-heavy notion of Karma starts to seem a little less spooky and grand.   It’s not justice.  It’s karmic justice.  It’s justice Lite. 

Punishment isn’t meted out over the decades and lifetimes.  It happens in the here and now, probably with a twenty-four hour payback limit.  Karma isn’t such a big and complicated idea at all, which is probably why they talk about it so much in yoga class. 

What’s attractive about karma, though, is that it’s automatic.  Karma is some kind of invisible balancing machine that’s always running in the background.  Karma just happens.  Justice, on the other hand, needs a push. 

That’s why we say we’re “bringing” someone or something “to justice,” and never “we’re bringing that guy to karma.” 

In the Asian sub-continent, where karma was invented, the climate is often so inhospitable that it’s no wonder they developed, over time, a vaguely mañana attitude about these kinds of things.  It’s stifling hot or raining monsoons and there are stinging insects all over the place.  Let’s just let karma get that guy, okay? you can hear them saying, ages ago, during the era of the Upanishads.  Someone’s using a banana-leaf fan and they’re sitting in the hot shade and it’s all, I am not bringing anyone to anything in this weather. 

Move a little to the west, and the culture develops a more hurry-up kind of urgency.  Colder weather, perhaps, clarifies the mind.  And so karma gets a little goose and the idea of “justice” takes hold.  Justice is karma on a timetable.  Justice is what karma becomes when a bunch of Type-A dudes get ahold of it.

The problem is, justice is complicated, with lots of moving parts and a terrifying margin of error.  Justice is something people do to other people, and if it’s one thing we’ve learned from history, it’s that most things that people do to other people aren’t very nice.  Even when – maybe especially when – they’re driven by good intentions.

“Your Honor, I have a problem,” the prospective juror said to the judge during jury selection a year or so ago.

I’m a good citizen, and a patriot, and I believe in the process – messy and flawed – of justice.  So when I get a summons to appear for jury service in Los Angeles County, I obey it.  (I postpone it several times, of course, and then whine about it constantly, but I do eventually show up.)  I have a wide and expressive face, one that radiates a kind of sunny fairness – you’re just going to have to take my word for that – and so I almost always make it to the jury box for the voir dire process.  I usually last until I announce my occupation – I work as a television writer and producer in the entertainment industry – at which point the defense attorney thinks to himself, This guy is a pampered plutocrat who hates the underclass, and the prosecutor thinks, This guy is a guilty white liberal media elite who thinks all defendants are innocent, and I end up excused for another two years.  (Ironically, both lawyers are essentially correct.)

Last year, though, I made it through a couple of rounds.  The prospective juror to my left – female, thirties, expensive watch, Kate Spade tote – squirmed nervously as it became clear that the jury selection process was winding to a close and that she was on it.  So she raised her hand in a desperate gambit to get out.

“Your Honor, I have a problem.”

Her problem, she told the judge, was that the defendant in the trial – it was an assault case, and a pretty serious one – had come to court in his prison jumpsuit.  He was surrounded by people in suits and court uniforms and here he was, the unfortunate, in a costume that screamed “Guilty!”

“How can I be impartial when I keep seeing him in that outfit, like he’s already guilty?” she asked.

The judge explained, carefully, that each defendant in the hot and dusty County of Los Angeles has the right to appear in court wearing pretty much whatever.  The defendant could have worn a suit.  He could have worn a scuba outfit.  He chose, probably on the advice of counsel, to wear his orange prison overalls. 

“But why would he do that?” she asked.

“Well,” the judge said carefully, “that’s what we’re going to find out during the trial, right?  What his story is.”

She shook her head.  “I just can’t see him impartially,” she said.  “Not in that outfit.”

The judge looked annoyed.  “Justice, ma’am,” he said, pointing to the Great Seal of the Los Angeles County Courts, with a depiction of Lady Justice, the Greek goddess of Themis, who holds up the scales with her eyes blindfolded, “is blind.”

“Yeah,” she said.  “But I’m not.”

And with that, she was excused from jury service.  “Nice one,” I whispered to her as she shuffled past me.  She shot me a dirty look.

Justice may be blind, but we aren’t.  We are very much sighted.  We see the assault and battery defendant in the orange jumpsuit.  We see the insider trading defendant in the Brioni.  We notice when class and status get dragged in irons to the dock, and it’s hard not to think, Okay, maybe he’s innocent of that specific charge, but the guy is clearly a bastard.  He’s guilty.  Of something, anyway.  We may have a goddess as a symbol, but justice is a human sport.

Interestingly, the supernatural word doesn’t need a system of justice.  Vampires, for all of their seductive power, can’t really bend the rules: the sun comes up and they die.  Shoot a werewolf with a silver bullet and that’s that.  No litigation necessary, or even possible.  It’s only humans, with their endless capacity to whine and beg and wheedle and wiggle out of commitments, who need an institutional mechanism for justice and law enforcement.  Everyone and everything else just sucks it up.

During the economic meltdown of 2008-2009, when the financial bubble inflated by mortgage-backed securities collapsed in a pile of bank failings and taxpayer-supported bailouts, some financial masterminds suggested a unique way to reform the financial oversight bureaucracy: abolish most of the financial institution regulatory mechanisms and replace them with a simple agreement. 

Take the top X percent of the employees of any bank or financial institution that does business in the United States – as a percentage of assets or funds under management or something – and make them pledge 99.9% of their net worth towards any future settlement or bailout the federal government (i.e., the American taxpayer) is obliged to cough up in case of failure. 

The bailout would naturally exceed the amounts collected, of course, but it would be fun to see high-flying investment bank vice presidents tooling around town in Hyundais and Kias rather than BMWs and Lincoln Town Cars.  It would be immensely satisfying to watch the one-percent trade summers on Nantucket for summers around the backyard above-ground pool, in a neighborhood without a Whole Foods or really good Japanese.

Would it compensate the taxpayers?  No, but boy would it hurt the investment bankers.  And maybe that’s enough.

The idea behind the proposal, though, is that the automatic karmic punishment would be so unthinkably painful – “Tristan?  Sophie?  I have some bad news.  Tristan, you’re not going back to Andover next year, you’re going to George Washington Carver High.  Sophie, you can’t take that unpaid internship, you’re going to work at Quizno’s with baggies on your hands” – it would create its own kind of powerful regulatory oversight.  Don’t want to slip down the class ladder?  Then maybe you’d better run the numbers again on that risk-blind derivative of  a Class B tranche of mortgage-backed securities you’ve just option-swapped.

But then, we’re supposed to be talking about justice.  Why is it that we always seem to end up talking about punishment?

For the record, the defendant in the orange jumpsuit was clearly guilty.  He didn’t really  even contest the issue in the ensuing trial, which I couldn’t evade.  What he wanted, it unfolded, was to be seen as someone who had already served some time in prison – hence the strategic use of wardrobe – to appeal for leniency, which he didn’t get.    When we talked about it in the jury room – and here, I hope, I’m not breaking the law --  there was lots of talk about “time served,” but also lots of talk about “sending a message” and “getting tough” and “making sure the punishment fits the crime.”

It turns out that a randomly-assembled group of Los Angeles County voters – minus the subset of thirtysomething females with Kate Spade totes – can’t exactly be Blind Justice Holding the Scales, but they can, in a disorganized and rambling way, get to the point and come up with a reasonable, though imperfect, way of dealing with a defendant in an orange jumpsuit who beat up his girlfriend.

I held that last detail back, did you notice?  And did you also notice that the minute you read that final clause – “beat up his girlfriend” – the whole story seemed different?  Justice may be blind, but we’re not.

When you know what he did, you want to throw the book at him.  For something, anyway.  When you know how he assaulted his girlfriend – and, as jurors, we knew; we saw the emergency room photographs, which were catch-your-breath shocking – you’re not going to let him walk.  You’re going to bring him to justice, even if he’d already served some time, even if he was “deeply committed to anger-management counseling,” according to his lawyer.  Even if he had already lost his job and (in a detail that was never explained to us) his car, as well.

What we talked about in the jury room, then, wasn’t really justice.  It wasn’t guilt or innocence.  In most trials, that’s already pretty much decided.  No, what we balanced, not so blindly, was punishment.  We didn’t discuss the fairness of the process or social inequality or the state of the public schools or cultural differences.  We talked punishment, as in: if we find him guilty of this or that charge, in this or that degree, what’s the guy going to get?  To the extent that a jury has an ability to influence or shape the punishment, that’s what we focused on.   Not justice, really, but whether this guy would get punished harshly enough to deter him from doing this again but not so harshly that he never gets out from under the cloud of the conviction.  The scales of justice, which are supposed to balance the evidence of guilt or innocence, really end up balancing something more personal and human: revenge and mercy.

Well, maybe “revenge” isn’t quite right.  (Though it’s not quite wrong, either.)  When business pundits and L.A. jurors sit around trying to sort things out, it’s hard for them to totally ignore the devil on their shoulders urging them to make this guy pay.  Justice is something people do to other people, often with a vengeance.  It’s measured not in time served or fines paid but in the sting of the punishment, the pain of the sentence.  Justice -- to be truly satisfying -- has to hurt.

Which is why, I think, justice is something we prefer to mete out rather than to receive.  And why, I think, the groovy, loosey-goosey super chill vibe of karma is so appealing.  It’s the universe, man.  Not a bunch of harried and pre-occupied strangers in a drab jury room trying to sort out big issues.

But the universe, as we all know, has no appeals process.  You can’t ask karma for a second chance.  You can’t explain yourself to the cosmic balancing system and ask for a little wiggle room.  You sleep late on a Saturday and Costco is going to be hell. 

What we’re all looking for – even as we devise more draconian and painful punishments for our fellow man – is a little mercy.  Justice we’ve got.  Justice comes in Great Floods and firestorms over Sodom and Gomorrah and fifteen-to-twenty with no parole.  Justice – and its diet version, karma – can seem awfully cruel, even when they’re both about as fair and dispassionate as possible. 

It’s not hard, then, to see how the simple message of a Jewish carpenter in Nazareth became so popular.  Jesus didn’t talk much about justice.  He talked about mercy.  He talked about forgiveness.  Jesus, according to his millions of followers, is the Chief Justice of the Court of Appeals, Universal Circuit.  And, better, he’s a pretty lenient jurist.

There are constellations of theology going on here, with tangles of writings and memoirs and Lives of Saints spanning two thousand years of debate about God’s mercy tempered with His Justice.  But when the famous gospel music group the O’Neal Twins sing Geron Davis’ rousing and uplifting gospel hit, “Jesus Dropped the Charges,” it all kind of clicks into place.

“I was guilty,” they sing, “Of all the charges:”

            doomed and disgraced,

            but Jesus,

            with His special love,

            saved me by His grace;

            He pleaded

            And He pleaded

            He pleaded my case.

            Jesus dropped the charges,

            Jesus dropped the charges,

            At Calvary I heard Him say,

            At Calvary I heard Him say,

            At Calvary I heard Him say,

            case dismissed, case dismissed…

It sounds a lot better than it reads, trust me. 

It’s also a lot truer than most things we pretend to think about justice and fairness.  We’re not really looking for balanced scales, or blindness.  Oh, yes, maybe that’s what we think is right for the other guy, but what we really want to hear – when we spend a night totaling up our transgressions and petty actions and lies large and small – is forgiveness.  To hear “case dismissed.”  To walk out of the courtroom of life a free man, touched not by justice but by mercy.

To sleep as late as we like and glide though a near-empty Costco.

But now I see I’ve gone too far.