Goblin King of the Darkstorm Galaxy
My new theory is that the world would be better after getting rid of the criminal justice system. All of it, entirely. And I don’t mean that the system needs to be reformed, although that might also be true, no, I want to get rid of it, and replace it with something entirely different. The criminal justice system follows a primary rule of Systemantics, my preferred Theory of Everything: Systems tend to oppose their proper function. A complex system that opposes its function cannot be fixed. You can only start over with a much simpler system. Away with the whole thing.
I am saying this while observing the system from a safe and generous distance, just like I am observing supernovae from a safe distance, another example of a major catastrophe, but at least this one spawns new life. As someone with a sheltered, privileged, academic, middle-class life, I only get in touch with the police and other arms of the criminal justice system maybe once every five years, and if that happens, it’s always a friendly encounter. The privileged and the police, we are old pals. I’ve never been a victim of a serious crime, apart from being inconvenienced by some thieves. I’ve never been accused of a crime. Sometimes I get mistaken for a drug dealer, mostly when I hang out in weird places, but the misunderstanding never lasts long. Sometimes I get picked up by the police at night when I am lost. Then they point me in the right direction. People like me never get in trouble. Everyone is trying to help me. Sometimes a guy I know does something stupid and ends up in jail. And sometimes, more rarely, I go to court as expert witness on the topic of darkness in a murder trial. Then I leave my province on my horse, ride to town and save lives, like Angus McFife when he is trying to defeat Zargothrax.
March 2019. I get a call from a lawyer who wants to find out more about twilight. Reluctantly, I decide that I know something about twilight. A few weeks later I’m standing on a hill in Scotland, trying to find out if I can see my car from a specific distance at a specific time. Some witness claims to have seen something and also claims not to have seen something else, just at the time when a man was attacked, here, on this hill. His claims incriminate someone else. It happened in twilight, and the only way to find out if what the witness claims is possibly not entirely true, is to replicate the conditions.
Although the Sun is not directly visible anymore during twilight, it still illuminates the stage, through light scattering at air molecules. I find out how far the Sun was below the horizon on the day of the murder, then wait until the Sun is at exactly the same distance from the horizon, while making some reasonable assumptions about clouds and moon, really basic astronomer stuff. I look over to the other side, where my car is parked, rub my eyes, look again, and then one more time. I take some notes.
I am told that this is the first time that an astronomer is asked to give expert testimony in a criminal trial, in all of Scotland’s history. Whether or not that is true, I cannot say. I submit a five page report, with sources and figures and calculations and all that. It’s like a paper that will be peer-reviewed, just not by other experts, but by lay persons in the jury. I freak out over my results and test them over and over again, just like I freak out over results in papers, except that here the stakes are higher. For the first time in a while I’m nervous about astronomy. My report and a few other things will decide whether or not someone will get a life sentence. It’s a bit more reason to freak out compared to a botched claim regarding the life or death of some distant star. It is quite possibly the first time that my work has any meaning, I mean, real meaning, not just the fake meaning we usually try to generate.
My biggest problem though is something else. I need a tie to go to court. Society is structured in a way that you can go through ten years of education, get two degrees, three fellowships, a tenured academic job, and yet, to convince people that you are to be taken seriously, you have to wear a tie. I don’t have a tie. I send a desperate plea to my parents in Germany, send me ties, serious ties, with serious colours. It is Easter weekend, and the parcel with ties is parked in some hangar in Germany. The ties arrive just in time, one day before my first appearance in court. One of them is dark red, silky, fantasy, hand painted, like it was artfully covered with blood during the Unicorn Invasion of Dundee.
My first visit in court is pretty uneventful. One hour on the train. Two hours in witness room 12, alone. One hour back. I see only the outside of the court room and speak only to myself. My second visit in court on the other hand is a lot more efficient. One hour on the train. Ten minutes in witness room 12, alone. One hour back. The trial doesn’t have a schedule, but it has three accused persons, three teams of lawyers, endless cross-examinations, a huge pile of evidence, dozens of witnesses. By the time I finally make an appearance, on my third day in court, the trial has already arrived in its fifth week.
Until this day, my understanding of the interior of court rooms comes from watching “The Wire”, and, much earlier, “Matlock”. How often I have murmured “you can’t handle the truth” from an imagined witness stand to an imagined lawyer, I can’t say. How often I have thought about wearing the tie like Omar Little. In reality, the courtroom I’m in looks more clinical and sober and also smaller than any of the fictional courtrooms I can remember. There is no old furniture, no high wooden ceilings, no chandeliers. It’s like an extremely poorly designed open floor office where people inexplicably decided to wear wigs, maybe as a weird celebration of some open floor office anniversary. The entire scene looks like a secret meeting of the Questlords of Inverness with the Knights of Crail.
The judge is at the head of the room, elevated, behind a giant podium, wearing a wig that looks tiny on his head. He is the only person on that side of the room. I am standing in the witness box to the left of the judge. Next to me are two court officers, who are busy showing evidence. There is an overhead projector to display pictures. I don’t remember where the projection screen is, I guess on the wall behind me, that would explain why I can’t see it. In front of me is a screen that automatically shows whatever is put on the projector. Basic lecture room technology.
The jury is on the other side of the room, 15 men and women, looking quite tired. Between us is a busy table with lawyers and other people, some with wigs, others with actual hair. The lawyer and, later, the prosecutor, are asking me from a podium that is located in front of the jury, that means, they are speaking over that busy table. It feels like we are having a shouting match from one end of the house to the other. Matlock cannot walk over to me and speak to me directly. He cannot whisper. He has to shout across the room. I adjust my microphone. “Did you bring the milk, Dr. Scholz?”, “Yes, that’s correct, I did.”
Opposite the judge, on my left side, is the bench with the three people accused of being murderers, separated by police officers. Their faces do not betray understanding, my presence incomprehensible and grotesque under these circumstances. The two male accused look like the small town bullies I went to school with; they seem out of place in this environment, like fish out of the water. The female accused looks attentively. Behind them is a transparent screen, and behind the screen seats and benches for public viewing. Everybody on that side of the room looks either sad or bored or both.
It is, overall, a ridiculous scene, for someone who just spends a few minutes inside the room, and the fact that everyone pretends that this is normal, makes it even worse. To believe that this is the ideal setting to find out what we know and don’t know about a specific event in the past, the ideal way to objectively weigh up evidence and to make rational, but also sensitive decisions, decisions that will have significant impact on other people’s lives, is pretty weird.
The testimony is quick and painless. I’m used to open ended questioning — you get a question from the audience or from an examiner or from an interview panel, and you have some time to find the answer, to waffle, to dither, and then hopefully to say something that satisfies the questioner. In the courtroom, I’m only useful to confirm a set of facts that I have already covered in my report. The lawyer assumes the task of interpreting my words, of picking the facts that seem most relevant, of explaining them to the jury. I got stuck on simple confirmatory statements. “Yes, that’s correct.” The lawyer is handing me the answers, and I simply have to provide affirmation with the force of my expertise, and more importantly, my tie. There is one single question from the other side, the advocate of the Crown (the Crown!), the prosecutor, and my answer to that question is very scientific, very non-committal, and therefore probably very bad. Then I go home, and try to digest the large number of WTFs in my head. What just happened? Did I enter the Galactic Terrorvortex?
It is an unusual way to explore a body of knowledge, to say the least. It is not clear to me to what extent any of the factual evidence is understood or at least appreciated by anyone in the room. If this were a lecture, I would walk to the students and ask them questions to find out. Here, you stage a dialogue, try to be as clear as possible, and hope for the best. What baffles me is that this complex set of information is not put in context, is not explained in relation to the testimony it relates to, it just stands there on its own, without saying clearly what it is meant to do. Nobody explains why the astronomer is here. It is possible that this happens while I’m not in the room, before or after my testimony, but I doubt it. If this were a student talk, I would complain about the lack of an introduction, the lack of motivation, the lack of an outline.
The trial continues, but not for much longer. Two days later, the jury retires to decide on a verdict. The next day, Friday afternoon, they announce their decision: Guilty of murder for the two men, which is later translated to minimum sentences of 23 and 24 years. Guilty of culpable homicide for the woman, 10 years. It seemed like a predictable outcome, not because the evidence is so overwhelming — as far as I can tell, it is very flimsy, little physical evidence, lots of tainted witness testimony, lots of questions and uncertainty — but because the story of the crime is so compelling. It’s not necessarily a logical story, it has plot holes and flaws all over the place, but it is powerful and it was repeated over and over again, for months. It is a bit like “Raiders of the Lost Ark”, where it takes years before you realise that you don’t need Indiana Jones for the ending, so good is the story. Besides, in the courtroom there is only one story, no credible alternative is seriously evaluated. The killing is such a tragedy, a story has to be found, a story has to be true, and it better be a horrible and brutal story. We want blood. There has to be a resolution, so that someone can be blamed, even if that involves assuming the absolute worst about people.
With such a story it will be impossible for anyone to ignore the prejudice and to objectively consider only the facts, as the jury is explicitly asked to do. Scientists are, we would assume, trained in sticking to the facts, in being skeptical of narratives, and yet we follow pre-conceived ideas all the time, we prefer evidence that supports our theory, and neglect facts that go against it. Our “stories” are at least not designed to produce powerful emotions. Here we are asking fifteen people who are not specifically trained in objective judgement to negotiate a complex tapestry of facts, some certain, some less so, some rock solid, others dubious, and to decide, based on the evidence, what actually happened. We ask them to do that after they have been bombarded with storylines over weeks. Along the way, the evidence is treated only as an accessory. We ask them to do that after they have been in a room with the families of victims, with the accused, in a room with tears, drama, gruesome details, blood, and tragedy. Clearly, this is impossible to do.
It seems like the process is designed to violate everything we know about cognitive biases. People are not good at this type of decision making, unless they operate in a system where obvious biases are minimised or excluded. The most obvious one here is confirmation bias. For months the story of this tragic murder has been hanging around, the love triangle, the gold digger theory, the jealousy, the violent bullies, the failed relationship, with the sudden twist that three people in the story turn out to be absolute monsters. This story, the theory of the prosecution, is attached to every news article about the trial. It is propagated on every day of the trial. Alternative explanations are only presented at the very end. Of course every bit of evidence that supports this story will become more meaningful, and every bit that contradicts the story will have a hard time. This is not saying that the jury doesn’t try their best, but the odds are stacked against them. It takes them only one day, or a little more, to come to a conclusion, one day to weigh up mountains of evidence, to make a life-altering decision for three young people.
Under the weight of the dominating narrative, the vision becomes blurry. It becomes difficult to see the accusation as just that, an accusation that needs to be proven. If the police thinks that this is what happened, it must be true, certainly, one might think. For some it becomes difficult to distinguish between accused of having committed a crime and actually having committed a crime, or, later, between being convicted of a crime and having committed a crime. Those are different things, clearly. There is no truth here, only a desire for closure and then to decide that this is what we were looking for all along.
Even if we are assuming for a moment that prison is the ideal solution to the problem of crime, it is still a severe punishment. Therefore, clearly, you want to minimise the number of innocent people you put in jail. In scientific terms, the goal should not be completeness — to put everyone in jail who ever committed a crime — because if you do that, you will inevitably punish a lot of people who haven’t done anything wrong. Instead, you want to aim for clarity, for certainty, for incontrovertible evidence.
To ruin someone’s life, or a significant portion of it, the evidence has to be overwhelming. You don’t want to do that based on a dodgy eyewitness here, a flimsy circumstantial evidence there. If you don’t have overwhelming evidence, multiple, independent, convincing, neutral lines of evidence that all fit the same theory, and alternative explanations have been rigorously explored and refuted, again by multiple lines of evidence, if this kind of factual background does not exist, then you let them go. You live with the fact that you can’t get them all. Getting them all is an illusion anyway. We are all criminals, in some circumstances.
This seems obvious to me, but it does not seem to be how the system operates. The system does not seem to be designed to minimise mistakes, to produce the truth, or some resemblance of it, or, if the truth is not forthcoming, as it so often is, to admit defeat and try to deal with it. What is the goal here, instead? To make sure someone has to suffer in a way that is commensurable to the crime, to “serve justice”, whatever THAT means? To satisfy basic human urges for vengeance, only cloaked in a seemingly civilised ritual with ties and wigs and oaths? The Amulet of Justice is lingering on the bottom of Loch Rannoch.
In the aftermath of the trial I often have to think of Robert Sapolsky’s baboons. Yes, baboons. When an outsider baboon enters the community and takes one of the pretty girl baboons, the local ringleaders are going to be upset. This will usually lead to a fight, and some baboon might get killed or badly injured. The hierarchy in the community gets disturbed, someone might get promoted, someone else might end up on the bottom of the social ladder. Someone might get expelled from the community and has to survive without it. But in one way or the other, it gets resolved, without anyone interferring, without outside forces and without finding out exactly who is to blame. It’s cruel and not fair, clearly, but is that any worse than what we are doing? We are baboons, very obnoxious baboons, with better uniforms.
One final anecdote: Years ago, when I moved to a small Scottish village, I asked the landlord if I should bother locking the shed where I planned to put my bike. They looked at each other, thought for a moment, and then shook their head. “We used to have a burglar here, he lived over there”, the man said. He pointed out of the window. Whenever something was stolen in the village, it was him. The local burglar died early, nothing was stolen anymore, the crime rate in the village dropped. This story about crime does not feature a court room, the police, or an expert witness, and it is much better and shorter than the one I told before.
