Friday, June 19, 2009

Changing Perspectives on Proof and Justice

What does society expect in the way of proof to establish that justice has been done in a criminal case? How does this expectation change over time? There are, of course, myriad answers to these complex questions. Recently, these questions were brought into particular focus to me while watching several hours of randomly selected television programming.

The first program I stumbled upon was the 1993 movie The Fugitive, in which Dr. Richard Kimball is falsely accused and convicted of his wife’s brutal murder. The evidence upon which he is convicted is highly circumstantial, and hinges in part on a 911 call placed by Helen Kimball, the deceased, in which she mutters a phrase which could either be seen as her implicating her husband in her murder or mumbling for his help. When the opportunity presents itself, Dr. Kimball escapes police custody and returns to his native city of Chicago in order to clear his name and find the real murderer of his wife. In so doing, he is pursued by US Marshall Sam Gerard and his team, who ultimately start to understand that Dr. Kimball did not in fact kill his wife. At the end of the movie, both Dr. Kimball and Agent Gerard have established that a supposed friend of Kimball’s framed him for Helen’s murder in order to cover up a false drug trial that would reap unknown profits for the friend and his pharmaceutical company.

The second program stumbled upon was a 2008-2009 season episode of Law & Order SVU entitled "Zebras." In this episode, an insane murderer is not convicted due to an error made by a lower-level member of the forensics team. Following the killer’s release, a series of seemingly connected murders ensue, leading the police to assume that the original murderer has gone back to his old habits. While conducting his tests, an excited forensics officer informs Benson and Stabler, two of the show’s lead detectives, that he found a mosquito which he believes contains the murderer’s blood and DNA. All are happy because this time they want to be able to win a conviction of the person in question and stop him from hurting anyone else. Ultimately, the real killer in the post-acquittal phase of the show is actually the forensic tech who made the initial mistake that resulted in the acquittal. Having been humiliated – in his view – in court and having lost the respect of his colleagues as a result of the error, the tech designed a plan in which he could use evidence to frame the murderer for his own actions and, in his view, atone for what he had done while proving those who had doubted him wrong.

Other than showing the popularity of crime dramas on a Saturday night, what is the relationship between these programs? Both of them involve the framing of innocent people for murders and crimes that they did not commit, that is clear. More than that, however, these programs demonstrate points on the continuum of evidentiary evolution – especially in the world of popular media.

In 1993, so The Fugitive storyline goes, a jury was able to convict an otherwise well-respected doctor and figure in the community for murdering his beloved wife based on circumstantial DNA evidence – the murder occurred in his home, where such evidence would presumably be common – and the contents of Helen’s dying telephone call to the 911 dispatcher, which could be interpreted in several ways. At the time of his conviction, the audience knows that Dr. Kimball did not kill his wife and understands the frustration he feels at failing to convince a jury of that in the face of non-scientific evidence. Standing in stark contrast to this is the SVU storyline, in which a mentally disturbed artist is not convicted of a murder he did commit due to the actions of a forensic technician. Other circumstantial evidence and the defendant’s overall demeanor are of less value than the technical evidence. When that same forensic tech tries to implicate the exonerated defendant in crimes he did not commit, he intends to use technology and science to make his case. And, poetically, it is the same technology and scientific ability that exposes the forensic tech as a murder himself.

Certainly, the juries in each storyline act to support the subsequent portions of the plot, yet their actions presumably must be at least plausible – if not agreeable – to the audience in order for the story to be somewhat believable. Thus, we see that in the span of fifteen years, the societal expectations of proof in the criminal law context, as portrayed through media, have shifted dramatically. Juries, it would seem, have become far more sophisticated – perhaps underscoring the existence of “CSI syndrome,” in which real juries expect prosecutors to offer the level of sophisticated proof and technology that is seen on television crime shows. And the media expects them to be more sophisticated and discerning, while at the same time shifting their faith from the overall evidence to the hard science presented. The question then becomes what the future of the continuum will be and to what degree of specificity juries in the future will expect prosecutors to conform to in order to convict based on the science and technology made commonplace in the mainstream media. The perils of a less-demanding jury are of course demonstrated by the jury which convicted Dr. Kimball to begin with; however, the perils of overly precise expectations on the part of a jury can be seen in the SVU episode.

Information regarding the “Zebras” episode of Law & Order SVU is available at

Information regarding The Fugitive is available at

Sunday, June 14, 2009

Casualties of War and Law

Soldiers face numerous challenges uncommon to the average civilian. Apart from the demanding physical and mental stresses inherent to soldiering, soldiers face a multitude of legal and/or moral issues. These issues may involve nuanced questions in determining whether a perceived opponent is an enemy combatant(s) or is/are people protected under international humanitarian law. Yet, even in cases when a person is clearly a non-combatant, and where an order to inflict pain or death on such person is manifestly illegal, a soldier’s decision whether to refuse to comply with the order or to actively stop the order from being executed also involves serious challenges. To illustrate these complexities and the collision of multiple legal orders on the moral soldier, I shall use the example of the film, Casualties of War (COW), starring Michael J. Fox (Private First Class Eriksson) and Sean Penn (Sergeant Meserve).

Set during the Vietnam War and based on true events, the film depicts the brutal actions of a group of American soldiers who kidnap, rape, and finally murder a Vietnamese village woman, Thị Oanh Thân. More fundamentally however, the story explores one character, PFC Max Eriksson’s refusal to take part in Thân’s rape and murder as ordered by his immediate superior, Sgt. Tony Meserve. In addition, it explores the tremendous challenges he faces in seeking to have an investigation initiated into the rape and murder.

The acts of kidnapping a villager/non-combatant in the middle of the night, followed by her rape and murder are obviously illegal under both international law and U.S. military law. The film is not so much about the finer points of law, but just how the proper application of clear law is avoided, ignored and/or subverted by the stated exigencies of war and other competing normative frameworks.

Competing Legal Normativities

Eriksson’s firm stance in refusing to rape and murder Thân as well as his conviction in pressing criminal action against Meserve and the three other soldiers who participated in the illegal acts is situated in at least three normative frameworks. International and domestic humanitarian law provides the first and perhaps obvious framework. The Geneva Conventions and U.S. federal law prohibits, amongst other things the kidnapping, rape, and murder of non-combatants. Eriksson’s refusal to take part in Thân’s rape and murder is commensurate with certain prescribed duties incumbent on soldiers. Yet, there are other non-state based "legal codes" that arguably regulate Eriksson's actions perhaps just as much. As Mark Osiel has written and notwithstanding a certain degree cynicism one may have about the concept, there exists a sense of chivalry about the proper role of a soldier to not take action that is in essence unbecoming and violative of this code/sense of chivalry – particularly attacking individuals who are non-combatants. Intertwined is, of course, a sense of morality about taking a young woman in the dead of night, from her family, and dragging her away to eventually be used as a plaything, all the while taunted and abused along the way. These legal and moral codes are not mutually exclusive, but all combined to help govern one’s actions. Eriksson's feeling of pain at seeing a defenceless Thân being raped and essentially unable to stop it (without great risk to himself) is not triggered by the fact that Geneva law is being infringed, but arguably by the violations of the other normative frameworks in play.

Competing against these normative values are those that animate Meserve – that in essence, war is about brutalization – one that centers on dominating and devastating both the civilian and the combatant. Laws that attempt to limit brutality committed during war seem contrary to the very purpose of warfare and moreover may prolong the suffering that war inflicts. These notions are of course not new and go back decades in debates about the nature and effectiveness of humanitarian law. This is illustrated in the following ways in COW. When Meserve instructs his men about their mission, he advises that their orders are that they may only return fire in self-defence. He however specifically instructs them that if they see any Vietnamese out in the open, regardless of their combatant status, they are to be terminated. He also forewarns them that they will be kidnapping and raping a villager of their choosing along their march to be used for their own amusement. Eriksson at first believes that Meserve was not serious and discovers his misapprehension when Meserve and Corporal Clark conduct the kidnapping of Thân while callously pushing aside her mother and sister. After the kidnapping, Eriksson approaches another private in their unit, Hatcher, about the kidnapping. To Eriksson’s astonishment, Hatcher extols and approvingly likens Meserve to Genghis Khan, noted historically for his ability to demolish and devastate opponents without a hint of restraint.

There is a further normative framework in play that legitimizes Meserve and the unit’s manifest illegality. Notwithstanding the code of chivalry previously mentioned, COW also demonstrates that whatever illegality or un-chivalric acts are committed ought to be kept under wraps - a code of silence. One rationale advanced is that prosecuting Meserve and revealing the details of the crimes would create an international incident and impact upon the U.S. government’s reputation. The laws of armed conflict endorsed and ratified by the state are purposely ignored by its agents charged with enforcing these very norms.

What COW illustrates is that while national military law and international law are binding and (are supposed to) govern the conduct of soldiers, ultimately these state-based normative frameworks are undermined by other non-state normative frameworks that value alternative operating principles than those that the officers are obliged to follow. Ultimately, a trial takes place at the end of the film, resulting in convictions for Meserve and the other members of the unit. International and military U.S. law wins out but only with a significant degree of perseverance by Eriksson, despite open hostility and attempts on his life in order to silence him from allowing the truth to be revealed.

Resistance and Law

Eriksson’s resistance does not take place in a vacuum but within the context of the clashing normative structures I discussed above. Clearly, Eriksson’s actions demonstrate a fidelity to international and national laws governing military conduct, as well as notions of chivalry and basic morality and human decency. Yet it is the other normative principles at play which control the actions of his superiors. Yet, as the work of radical geographers has postulated, power is not confined to dominant authorities, but also resides in those resisting the exercise of dominant power. Eriksson’s resistance is manifested in numerous ways. This ranges from confronting Meserve about kidnapping Thân as well as the plan to rape her. Eriksson refuses Meserve’s illegal order to rape Thân, thus incurring his wrath and marginalization within the unit. There are of course different degrees of resistance exercised. While Eriksson was firm about refusing to take part in the rape, his conscience and sense of duty was patently triggered when trying to help Thân escape while others in the unit are away observing enemy movements. Brutalized and raped, Thân is incapable of escaping on her own. Eriksson realizes that if he were to take her away from where they were situated, he would be deemed a deserter, a status that weighs heavily on him and his sense of duty as a soldier. When he decides to take her back to her village and risk being marked a deserter, he is discovered by Corporal Clark who orders Eriksson and the villager to join the others. The consequence is that ultimately Thân is killed by members of the unit in the midst of a gun fight with actual enemy combatants. When Eriksson realizes that Meserve and the others are about to kill Thân, he tries to stop them but is immobilized by Meserve. Eriksson's reluctance to desert may have cost Thân an opportunity to escape death after her already traumatic ordeal. He failed to sufficiently exercise his own "resisting" power early enough to effect a result commensurable with the principles he believes in.

Tremendously burdened by the weight of what he witnessed and his inability to save Thân, Eriksson wages an effort to move two key superior officers to have Meserve and the others prosecuted. Both superiors, Lt. Reilly and Captain Hill (also Meserve's superiors), however are reluctant to push Eriksson’s agenda forward and encourage him to drop the matter. Ultimately, given Eriksson’s revelations, an investigation leads to the discovery of Thân’s body and evidence of her murder and rape become evident. In this scene, Eriksson stands next to Capt. Hill, who chides him for not letting the matter go and for pursuing it. Eriksson, through an act of clear insubordination, tells Captain Hill “to go to hell”. Meserve and the remaining soldiers are court-martialed and sentenced to various terms in prison. It is Eriksson’s whistleblowing as an act of defiance that causes an investigation and the prosecution of Meserve et al.

Reflecting Realities

Although set during the Vietnam era and filmed and released in the late 1980s, the story nevertheless has resonance in modern-day armed conflicts. There are many ways that soldiers have sought to resist participation in illegal acts ordered by superiors. One example is to desert and seek asylum from a neutral third party rather than to participate or be associated in military or police operations that violate the basic norms of human conduct. Another example is to directly confront the illegality by challenging the orders themselves. This can lead to perilous consequences requiring one to potentially desert and seek refuge elsewhere. In other circumstances however (such as Warrant Officer Hugh Thompson, Jr. who along with two others saved villagers from being massacred at My Lai), the act of confronting illegality, while not received well at first, may garner affirmation at a later date, and thus legitimized.

COW affirms the difficulties inherent in a soldier's disobedience of manifestly illegal orders. A soldier is required to obey orders unless manifestly illegal. Yet as COW demonstrates, where an individual soldier is severely outnumbered and threatened with death by "friendly fire", disobedience presents its own set of dangers. Indeed, in a context where superiors (may) seek to turn a blind eye to atrocities, and indeed discourage or punish those who wish to bring information to light, a soldier's duty to refuse compliance with a manifestly illegal order becomes that much more difficult. They risk severe ostracism for breaking ranks, which apart from effecting a social death, may lead to an actual fatality by friendly fire.

Sources Consulted

Casualties of War, 1989, DVD (Culver City, Calif.: Columbia TriStar Home Entertainment, 2004).

Key v. Canada, 2008 F.C. 838, (2008), 331 F.T.R. 137.

Joshua Key, with Lawrence Hill, The Deserter's Tale: The Story of an Ordinary Soldier Who Walked Away from the War in Iraq (Toronto: House of Anansi Press, 2008).

Martha-Marie Kleinhans & Roderick A MacDonald, "What is a Critical Legal Pluralism?" (1997) 12 Canadian Journal of Law and Society 25.

Mark J. Osiel, Obeying Orders : Atrocity, Military Discipline, and the Law of War (New Brunswick, N.J.: Transaction Publishers, 1999).

Re ZH, Refugee Appeal No. 2248/94, 7 December 1995, Refugee Status Appeals Authority, New Zealand.

Joanne P. Sharp et al. Entanglements of Power: Geographies of Domination/Resistance (London: Routledge, 2000).