I’ve been fortunate to have had two professional careers, the first one in the courtroom as a trial lawyer and the second in journalism. I did not need the latter experience, though, to notice the stark difference between these two worlds.
When I prosecuted the “Blind Sheikh” (Omar Abdel Rahman) and the jihadist cell that bombed the World Trade Center and then plotted a simultaneous attack on several New York City landmarks, the organs of government that speak to the public through the media were making like irresponsible journalists. That is, they were eschewing facts and evidence, obsessively peddling a counterfactual narrative, to wit:
There is only one “true” Islam, and it is resolutely peaceful (indeed, being a “religion of peace” is apparently its only identifiable attribute). Therefore, the terrorist acts plotted and committed by a cabal of men who just happened to be Muslim had utterly nothing to do with Islam, notwithstanding the jihadists’ proclamations to the contrary.
By contrast, in the courtroom, criminal allegations cannot be proved absent convincing factual evidence — beyond a reasonable doubt — that unanimously persuades jurors of the suspects’ guilt.
Thus, though we prosecutors were formally part of the government, it was as if we were inhabiting a cocoon insulated from the fictional government narrative. Indeed, the judge repeatedly reminded the jurors of their oath to decide the case solely based on the facts proved and the controlling law, not bias, fear or favor — which was a 1990s way of saying “not narrative.”
The upshot of all this? No matter what “religion of peace” blather was coming out of Main Justice in Washington or the White House press apparatus, in our New York City federal courtroom a short distance from the Twin Towers, we were not only permitted but obliged as government attorneys to prove the truth:
(a) There are mainstream interpretations of Islam that endorse war against non-Muslims to establish Allah’s law (sharia);
(b) these are literalist interpretations that draw directly on Islamic scripture;
(c) the interpretations (Salafism, Wahhabism, Islamic supremacism — collectively, what we hopefully refer to as “radical” Islam) are urged on young Muslims (mostly men) by influential sharia scholars like the Blind Sheikh, whose powerful influence owes solely and only to their mastery of the doctrine;
(d) based on those incitements, these young men are radicalized into jihadism, plotting and committing acts of terrorism.
Those were the facts. Our evidence proved them incontestably. That is the only way we were able to convict jihadists — not only in my prosecution, but in case after terrorism case.
While the government’s skewed media narrative continued undeterred, those prosecutions, based on real facts, became the national-security part of government’s best source of intelligence on how jihadist organizations actually function.
I recall all this today because it explains what we are now seeing in the travesty that is Baltimore’s prosecution of six police officers in the death of Freddie Gray.
In Baltimore, the municipal government — working hand in glove with Obama’s federal government — has its narrative: the “Black Lives Matter” storyline which holds that Gray’s death in police custody was a cold-blooded murder caused by pervasive racism.
As was the case in the 1990s terrorism cases, the official government media narrative had nothing to do with the actual facts of the case. Gray’s death was an accident. Baltimore’s criminal justice system is among the most thoroughly integrated in the country.
The critical difference between then and now, though, is that in the absence of evidence, the prosecutors are trying to sell their propaganda as proof.
Not surprisingly, it is a rout so far. Prosecutors have been unable to convict the first two police officers, most recently officer Edward Nero, who was acquitted on all charges Monday.
Not surprisingly, the only way the prosecution stands any chance of winning is to incite an atmosphere of intimidation.
Jurors must be made to fear that unless they convict — regardless of the dearth of evidence — there may well be rioting and blood in the streets.
If I may try to offer some common sense that distinguishes actual justice from “social justice,” let’s consider both the case of Mr. Gray and the purpose of the criminal justice system.
Gray’s death is a tragedy. It was clearly an accident, one with a catastrophic outcome. But think for a moment: What is it that makes a tragedy a tragedy?
It is that something disproportionately horrific occurs absent any intent to cause it — a terrible accident, an earthquake, etc.
Now consider: What is the criminal justice system for? It is our society’s means of addressing situations in which people have cause intentional harm — often, lethal harm — to other people.
It is not about tragedy; it is about willful wrongdoing. Yes, crimes have tragic fallout for victims and their families; but a crime is not a tragedy, just like an act of war is not a tragedy — it is quite intentional egregious behavior, not mistake or accident.
This is not to say that the absence of criminal intent equates to the absence of impeachable behavior. It is simply to point out that the criminal justice system is not the fitting way to address all behavior that results in bad outcomes.
When there is no criminal intent, there is no crime, but that does not mean there was no wrong done. That is why police can and should be subjected to internal disciplinary measures when their performance is shoddy. It is why the civil courts are available to address damages caused by negligence.
In sum, the criminal justice system is no place for narrative. It is the place for adjudicating intentional wrongs that cause specific, usually premeditated harm. If a prosecutor tries to prove a case based on an emotionally driven narrative rather than evidence-based fact, the prosecution is sure to fail miserably unless the prosecutor succeeds in corrupting the system.
By contrast, when the justice system is working properly, it is the place where we acquaint ourselves with reality. It is the place that puts the lie to a narrative.