I write in response
to Dorothy Rabinowitz's July 9 editorial-page commentary "Gerald
Amirault Has Reason to Celebrate."
The decision of the
Massachusetts Parole Board in Gerald Amirault's case, more than most of the
judicial opinions that have been written in the various daycare-center and
other mass child sex-abuse cases around the country, touches upon the central
moral and legal question of whether the defendant was in fact guilty of the
crime -- not just whether he had a fair trial, not just whether the process
was lawful and fair, but whether a flawed process gave way to the darker
forces of the human soul and mind in order to convict obviously innocent
people.
This is a profound
development, because it makes the point that there is a very good reason our
Constitution provides for fair process: When the process goes wrong, the
likelihood of an erroneous outcome (that is to say, the conviction of an
innocent person) goes way up. Fair processes have a moral justification of
their own, but they also have a decidedly practical side: They make
miscarriages of justice less likely. The Parole Board's opinion in Gerald's
case touches upon the board's obvious sense that an innocent man was
convicted, as well as its sense that the process went sufficiently awry to
produce the wrongful conviction, and stayed sufficiently awry to defeat even
recent efforts to undo the injustice by court processes. Although lower court
judges saw the case as it was, the state's highest court, composed of justices
who are more removed from the nitty-gritty of daily life, remained blind. Yet
the members of the Parole Board --
in some cases less sophisticated and less well-educated and all lower
in rank than the Supreme Judicial Court's justices -- saw it clearly. (This is
an excellent advertisement for government by the people, rather than by elites
only.)
Yet the board did not
come to this realization out of the clear blue. Had this case come to the
board 10 years ago, it is almost certain that commutation would not have been
recommended. What happened in the past decade that so dramatically altered the
scene to produce a unanimous vote for commutation by what is acknowledged to
be one of the toughest, if not the toughest, most pro-prosecution parole
boards in the country?
The answer, in my
view, is easy to understand if you think about what we just celebrated during
our July 4th Independence Day. Those who founded this country understood that
while elites have their place, they are far from infallible, and they are
prone to arrogance and self-assurance. Those with power also tend to abuse
that power, inevitably. This observation was certainly not new at the time of
our Revolution, but the solution to it was indeed new. That solution empowered
a vast civil society to function free of governmental interference. Our
founding governing documents provided, in particular, for freedom of speech,
of thought, of press and of association. Later, some other societies provided
in their governing charters for similar rights. The difference is that in the
United States there has arisen a tradition of using those rights.
Pursuing a long and
honored tradition, Dorothy Rabinowitz and The Wall Street Journal undertook a
long, sustained, intelligent and well-documented effort to tell truth to
power. This was an essential stimulus for many others in the country to become
associated with the effort. Others who earlier were convinced of the Amiraults'
guilt suddenly had to take a second look. Some judges (in this case, in the
Superior Court) recognized the injustices that had been inflicted and sought
to correct the errors, although they did so by focusing first on procedural
errors (Judge Robert Barton's emphasis on the right to confrontation), and
then on newly discovered evidence (Judge Isaac Borenstein's conclusion that
scientific knowledge of the susceptibility of children to suggestive
questioning techniques might have altered the jury's view of the case). These
judges stopped short of saying they thought these errors had resulted in the
conviction of innocent people, although sophisticated readers could read
between the lines and understand that these seasoned judicial and judicious
observers of both court processes and human nature felt that innocent people
had indeed been convicted.
Yet because the lower
court decisions were made on the basis of legal errors committed at trial, the
Supreme Judicial Court was able to reverse those decisions, either not
recognizing or simply ignoring the conviction of obviously innocent
defendants. By pretending that the processes had been done correctly, the high
court justices were able to cleanse their consciences. And on what basis did
the justices so conclude? On the basis that they were the ultimate arbiters of
process, and so their word was final. In effect, they made a mockery of the
oft-quoted jest that the highest court is supreme not because it is always
right, but is always right because it is supreme.
Yet eventually even
the efforts of the state's highest judges were insufficient to perpetuate this
fraud on public justice: While the Supreme Judicial Court is the ultimate
arbiter of process, it is not, in a free society, the ultimate arbiter of
truth. Neither are the prosecutors (who remain in high office today), nor the
professional frauds who wield the weapons of "science" and
"compassion for the children" in their twisted crusades. Truth and
justice prevailed because, eventually, the culture changed, the atmosphere
improved, and truth and rationality were emerging triumphant. The pendulum
began to swing and it continued to do so, eventually with a vengeance. The
swing came later to Massachusetts than elsewhere, but it came.
And this, in
microcosm, is how the United States of America works. Yes, it makes mistakes.
It institutionalized the practice of human slavery. It deemed women
second-class citizens without the right to vote. It incarcerated American
citizens of Japanese ancestry during World War II on the basis of erroneous
(some would say fraudulent) governmental information supplied solemnly to the
courts, including the Supreme Court. It allowed and excused, for a time, the
excesses of the McCarthy era. These and other historical mistakes were
eventually stopped and corrected, and even atoned for, because democratic
processes and the liberty of citizens and of civil society were allowed to do
their good work.
We are very lucky in
this country. It's not that the people born here are genetically better than
those born elsewhere. It is that our institutions are such that the better
side of the human being is cultivated and given room and opportunity, while
the darker side is kept in check. And we are lucky, too, because there are in
this nation a small number of extraordinary individuals whose paths cross
extraordinary situations and who answer the call of history.
Dorothy Rabinowitz is
one of those hardy souls. She saw the truth and proceeded to tell it, time and
time and time again, with increasing moral and intellectual force with each
telling, since each subsequent telling garnered additional strength from all
that went before. And she was able to do so not only because she was protected
by the First Amendment, but because she found shelter in a powerful instrument
of civil society, The Wall Street Journal, under the leadership of an editor,
Robert Bartley, who was willing to take the risk that this would be a worthy
expenditure of the newspaper's accumulated store of credibility, and
intellectual and financial capital. So it was the combination of legal
institutions protective of modal liberty and of civil society, and the
availability in civil society of a powerful and respected organ of the Fourth
Estate, led by an editor who understood the solemn obligations he and his
newspaper had to truth and to history that gave free reign to an extraordinary
and talented reporter/writer with a burning moral and intellectual vision --
that led to where we are today in the Amirault case, as well as in other
situations. (I won't here go into the service done by this same team in
fighting the Orwellian assault on liberty on American college campuses.)
So I congratulate
them, and everyone associated with them and with their great newspaper, not
only for the Pulitzer, but also for their victory thus far in the
extraordinary struggle we here in Massachusetts have been waging for too long
-- the struggle to free not only Gerald Amirault, but to free all of the
citizens of Massachusetts from a blot on the history of the commonwealth and
its institutions. In the end those institutions, coupled with the efforts of
some extraordinary individuals, pulled through. Outrageous injustices happen
in this country, but they don't last forever. Our institutions and our people
make permanent error, not to mention tyranny of every sort, virtually
impossible.
Dorothy Rabinowitz,
Bob Bartley and The Wall Street Journal are heroes. Fortunately, we live in a
nation that attracts, perhaps breeds, and certainly gives breathing space to
such heroes. And every so often we reward our heroes -- even if sometimes a
bit late.
Harvey A.
Silverglate
Boston
(Mr. Silverglate is
Boston civil-liberties and criminal-defense lawyer and author, Alan C. Kors,
of "The Shadow University: The Betrayal of Liberty on America's
campuses," and co-director of the Foundation for Individual Rights in
Education.")