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http://jaygaskill.com/humancondition.htm
THE ULTIMATE HUMAN CONDITION
A DREADFUL MURDER CASE
ILLUMINATES
The Meaning of It All
by
Jay B. Gaskill
↓
Copyright © 2005, 2007
by Jay B.
Gaskill
SET ONE:
LIFE,
DEATH, CRIME, PUNISHMENT
& GOD
Note: The Introduction and my first four postings serve to set up the discussion of an important criminal trial. Then my account of the “Jefferson Matley” case occupies all the postings from V (June 8th entry) through XIV (the June 23rd entry) disclosing his final sentencing. The final four postings address the implications of that case on several levels…
Dante understood his era as a
time when most people thought in concretes, while some few were able to think
allegorically. My account will be a
more abstract vision than Dante’s, but it’s made up of metaphor and allegory as
well, because the topic stubbornly continues to elude mere prose.
A Journey Begins…
What if you woke up today from a sleep that began before the “great corrosion”? Assume you had a crash course in “modern” culture. What would a survey of our moral foundations in terms of current religious and anti-religious sensibilities look like? My own survey reveals six general approaches to the problem of ethical authority:
Why
care?
Why
bother to act?
Why is any of this relevant beyond one’s own mortal term?
Welcome to my journey.
For years I have puzzled about the greatest question for those of us who love life. What is there for us after our mortal time is up? I am calling this the First Question. It is also the Last Question.
I have formed an idea, a mental picture of structure of reality, that seems to answer the First and Last Question, but its description eludes all the English language expressions and metaphors I have learned since birth.
But there are descriptions contained in seemingly contradictory elements of certain religious faiths that come close. My first two examples:
a. In Hindu religious thought, the Atman and the Brahman represent the deepest unchanging self (A) and the universal self/ultimate ground of reality (B), respectively. Neither are deity yet somehow both are; one is resident in the individual yet universal; the other is universal, and beyond the individual.
b. In Roman Catholic religious thought, the communion of saints is the grand vision of a living community of good men and women, whose essential humanity and individual personalities still exist in relationship with us.
Prepare to shift gears:
Today, I am in my
Yesterday, I was on an
Early morning rain had drenched the reclaimed desert. I watched puddles glinting in tilled soil, fields of grasses and hay slipping by the window in subtly varying shades of deep green. Then I saw two dappled horses nose to nose, patches of glacier green sage, followed by those thousand foot long irrigation lines – wheeled pipes anchored at the water supply end that form green crop circles in the desert soil.
All of this unrolled under a
turgid, wet sky, where plump clouds hovered distantly over a dead volcano
(“twin buttes” on the
This called to mind a different
drive, one I have yet to take, to a California prison where convicted murderer named … (I’ll call him
Jefferson Matley.) … still lives. Whether Jefferson Matley
is one of the six hundred plus inmates awaiting a death sentence in
Why talk about this man at
all? I believe that the deeper we
penetrate into anything particular, the more we encounter the hidden universals
than animate everything.
I.
The case of the People of the State of
A disclaimer: A number of years ago, while a senior trial
lawyer in a public defender’s office in the Bay Area, I handled a case that I
can never forget. In the telling, even at this late date, there are secrets I
still must keep. My narrative tracks a
death penalty murder case that attracted a good deal of notoriety. Important
details have been altered to protect the privacy of the players. No privileged
attorney-client communications will be disclosed here. Did my unnamed client
admit his guilt or protest his innocence?
You will never learn that from me.
Did he testify as to his guilt or innocence? No.
But that is a matter of record.
“JM’s” was one of those cases where the details of guilt phase defense had almost nothing to do with the essence of the real story which was, from the very beginning, about whether “Jefferson” would be sentenced to death.
I have cut close to the edge here, because of my intimate knowledge. But my narrative is crafted so that it could have been reconstructed from police reports, press accounts, court records. But I must acknowledge that I will briefly slip over into that “nobody but his lawyer could know this” territory.
A personal note: Death penalty trials tend
to chew up the people assigned to defend the accused. I suppose this is because the very nature of
a penalty defense – after all, the whole presentation leads to a heartfelt plea
for mercy – essentially precludes the professional detachment of a lab technician,
psychiatrist or social worker. Your soul
is exposed to the corrosive effects of the criminal mind because you job
requires you to engaged directly with that mind. To be effective in a death
penalty case, you need to know the heart of a murderer whose crimes were so
serious that his life or death hangs in the balance. And you need to speak credibly to a jury who has been selected
because every member has qualified as someone who really could impose the death
penalty. Cool detachment just won’t cut it.
Everyone
in my office knew that the “
An aside: I remember a distinct moment in the guilt phase of the
trial when the halo effect vanished. The
halo sometimes emerges early in a defense case – the kind raised by mentions of
“open mind” and “reasonable doubt” – when you’ve done well with cross
examination and opening statements. It happened about halfway though the
evidence of
It was clear at the very outset that the DA’s office would seek the death penalty. So those of us eligible for the assignment were braced for a life change.
The public defender intake file in any case – including the one dropped on my desk on morning after the 6, 10 and 11 O’clock news on all Bay Area channels had covered Jefferson’s arraignment – is a skinny manila folder containing some printed forms, filled out by hand. It typically contains some brief biographical details, a rap sheet when available, the charges, in this case a thick document, and our confidential intake interview, again a long hand written narrative. In Matley’s case there were many more biographical details than usual, but the arrest and other police reports that often came with a typical robbery case were missing. All that would come later, after a formal discovery process.
Three and a half years later,
Jefferson Matley’s files would fill the file boxes
that lined one entire wall of my office. I would need a great deal of help in
this case. As was the practice, I
selected a second chair counsel. [He later left the office and a new co-counsel
was picked. An investigator was assigned
and immediately began work. Before the case was over several investigators
would have worked on some aspect of
Someone – the authorities were well prepared to prove it was Jefferson Matley – had broken into three homes and one business, and on each occasion shot everyone there at close range before leaving with money or other valuables. Killing in the course of a robbery or burglary is a special circumstance murder – death penalty eligible. There were three dead bodies and two who had been left for dead. Another way to describe these plucky survivors: live witnesses.
A chilling piece of this, one I didn’t learn about for a few days: In one of the burglaries, a girl was home alone. She was tied up on a bed then shot through the torso. After a time, her would-be killer asked, “Are you all right?” Wisely she did not answer.
Now I need to talk about eyes. Ironically, I had represented Matley years earlier in juvenile court, one of hundreds of cases where a kid is brought to Juvenile Hall for stealing or something else, held for a while until some parent or guardian takes custody again. There was very little remarkable about that case.
Flash forward: The hardened young man who was arraigned for these murders had a cautious poise about him, his appraising eyes looking back and forth around the courtroom. [Prisoners in his situation rarely get see the outdoors at all at all, and their arrival in a courtroom expands the filed of vision several fold.].
When I first met Jefferson Matley – there is no other way to put it – I noticed that he had dead eyes. I don’t mean the unseeing eyes of a blind man, whose unseeing eyes fail to betray recognition. These eyes (and yes, over the years, I’ve encountered others) were attentive, but they failed to betray any human caring. It was as if there was something missing behind them.
I quickly buried that impression.
It would do nothing but get in the way over the next series of interviews; many
talks with
But a couple of months later someone associated with the case took me aside and said, “Did you see those dead eyes? Those are the eyes of a killer.” I shrugged. I was well beyond that.
Or so I thought…
II.
Delay…
The
typical run-up to trial of a
Of course, delay serves one additional purpose in a high publicity case, a purpose that benefits both sides: It may obviate the need for a change of venue. This is because the white heat of public attention is fickle and easily distracted when the case has taken its place among the mountain of old news. For public servants like DA’s and public defenders (unlike celebrity lawyers), a change of venue means spending weeks in a bad motel, not being with family, and not having the daily support and counsel of colleagues.
Of course the defense has other reasons for delay. In the defense business, a client’s death by natural causes is a victory of sorts because it prevents the execution. So every year the trial is delayed is one more year the client is alive.
Then there is the little appreciated matter of possible character transformation. The decision to execute is more difficult for many jurors when the man (and it’s almost always a man) before them is no longer the “same person” as the killer whose crimes were committed years earlier. No one can really orchestrate this transformation, which – truth be told – is very, very rare.
So
Orchestrating trial delay of a
major high publicity case is somewhat easier in a major urban jurisdiction. The
defense benefits from these high-crime venues because, at any moment, the sheer
volume of un-adjudicated criminal cases can swamp the system. While extensive
plea bargaining serves as a sort of safety value to relieve these pressures,
the system as a whole does not favor the speedy trial of the large, high impact
cases like
But we used the time
effectively. Obtaining a truthful and
complete biography of someone who has had several brushes with the law is more
difficult than it sounds because you are trying to get to the back story, the
material that never finds its way into a probation report, news story or police
report. In
III.
Soon
after
A pattern of major criminal behavior, a run of burglaries or robberies for example, never pops out in someone’s adult biography like a sudden case of cancer. There are always precursors. Almost without exception in my practice, these precursors first show up in juvenile court.
Of course Matley
had a juvenile record. As I noted in my June 8th posting, I was a
little surprised to notice my own name on one of his files, having representing
him in a routine appearance, but I shouldn’t have been. For one of the years when
When
“Abe” was a decent African
American man, a coach who had taken a special interest in young Jefferson, whom
he recognized as a bright kid, with promising athletic talent and problems in
school. Abe and Jefferson quickly formed a father-son bond. Abe insisted that
So Jefferson was committed o the California Youth Authority (CYA).
IV.
Of course, as my late father was fond of saying about life’s “If only” questions: “If frogs came equipped with wings, they wouldn’t keep bumping their asses when they hop.”
The Juvenile system is famous for soliciting psychological advice that it is incapable of implementing.
Yet, there was one more notable event in Jefferson’s life, even in Youth Authority:
Another male counselor established a fatherly relationship with Jefferson. In the disciplined camp environment, Jefferson thrived, achieving good grades and a strong work ethic. The bond of trust with his counselor was such that one day Jefferson warned him of an escape plan. Being a “snitch” in YA is hazardous to one’s health. I am morally certain that Jefferson made the warning because he trusted his counselor and because he knew it was the right thing.
As a result of Jefferson’s tip-off, the escape never took place, and lives were probably saved.
When Jefferson was eventually paroled from Youth Authority, he lost all contact with the counselor. After all, he was now a full fledged adult in the eyes of the law.
So Jefferson Matley went straight to his mother’s house, the very place Dr. Hall’s report suggested would be toxic. Dr. Hall had predicted more trouble… “The victims will be women…”
As I read this narrative from the YA reports, I could almost hear the ticking of the bomb…
V.
Soon after Jefferson Matley was released to his mother’s home, he was arrested. In a way, the arrest was a Godsend -- given Dr. Halls’ ominous prediction. It was a non-violent felony theft. Because of Jefferson’s poor performance on YA parole and his prior record, he was sentenced to state prison.
California prisons are little different from those in other states; rehabilitation is left to self-help for the most part. Jefferson was sent to a medium security facility and his term there was relatively short.
Three years passed.
Finally, in his early twenties, Matley found himself once again a paroled prisoner. Like the moth to the flame (truthfully where else would he go?) he returned to live with Mother B.
[][][]
Stranger killings are considered the worst. The victims are chosen randomly, directly by the killer, or serendipitously by the circumstances of the confrontation between victim and killer. There is little room for the traditional mitigating factors such as the prior quarrel, the sudden rage triggered by jealousy, in other words, for any of the things that allow us, as fellow human beings, to achieve some small understanding of how one person comes to take the life of another.
In the each of killings for which Jefferson was arrested and charged, each person killed was simply an inconvenience, a theft, robbery or burglary victim who had the misfortune to witness the crime. When plotted on a calendar, these crimes erupted in a series not long after Jefferson arrived in his mother’s home as a paroled inmate. From a sentencing juror’s perspective, there would be no reason that they would not have continued until the perpetrator was arrested. More telling, this particular crime wave ceased after Jefferson’s arrest.
These are the things that fill the dark thoughts of a defense attorney early in the case.
Years later, when I and my co-counsel argued the case, I paused. Lest we fell into the trap of believing all our rhetoric, I offered a correction. I rolled out the television set we used for training and inserted the VCR Tapes of the crime coverage that had splashed across the evening news when Matley’s case was hot. We watched the whole thing, the breathless anchors talking about the latest developments, the shots of the helicopters, the solemn police detectives, the victims’ families. My co-counsel sat in stunned silence for a moment. That is how this jury will see it, I warned.
For most of those years before trial, Matley kept a secret from us. It was an important one. This revelation is the first of my two departures from the strict wall of silence about my communications with him. I breach that wall only slightly here because in essence what I am about to reveal did come out at the trial.
VI.
So another three years went by; and a firm trial date loomed.
Sometime during that period, by an incremental process that escapes notice -- like your mother’s subtle aging -- a change had taken place: >Jeffersonn’s eyes were no longer dead. The light somehow had returned.
I began to ask him obliquely some “what’s this all about?” questions. I was casual and seemingly off point in this exploration, but I was driven by an intense curiosity. I have seen too many criminal defendants offer excuses, picking up the very rhetoric of moral relativism, parroting what they’ve heard about the “evils” of the system, speaking of themselves in the passive voice as if there were no doer, not actor inside who was responsible for the crimes charged. So I wondered if that light behind Jefferson’s eyes was an illusion.
What emerged from these conversations was striking, even to me, a hardened defense guy, who’d seen almost everything.
Without getting into the intimate details of these casual conversations, it gradually became clear to me that Jefferson Matley had reached a serene understanding of his moral situation. His insight: It really would be completely understandable, even proper, if the jury and court imposed the death penalty following a guilty verdict. And this was conveyed without any trace of whining, nor any sense of suicidal resignation. And Jefferson Matley wanted very much to live.
In contrast, many who face death row eventually succumb to pending execution fatigue and lose the will to live. Members of his group tend to decide that if they can’t have life on their terms – more or less outside with their peers doing the things that they’ve always been able to get away with – then in effect they say, “Screw this. Just put me to sleep.”
That was miles from Matley’s position. Of course, he hoped for mercy, but I believe he didn’t expect it because he knew he didn’t deserve it. Jefferson Matley appeared to really understand why he was not entitled to mercy, and for that matter why he was very unlikely to receive it.
A point to which I’ll return
after I’ve told
Unfortunately, this sort of transformation is the very kind of thing you can never prove. Gallows repentance is always suspicious. And Serenity? Acceptance of one’s impossible moral situation? A recovery of the human light behind the eyes?
You’ve got to be kidding.
It was not long after these
conversations that we discovered what
VII.
Recently, in preparing for this section, I had the occasion to check the old accounts of my client’s rampage under the heading “serial killer”.
When these events are tightly summarized, the picture is not pretty:
A home invasion through bedroom window in which a girl was made to give up her parent’s jewelry, then was assaulted, bound, gagged, shot and left for dead;
A few weeks later a woman burglary victim was found dead in her closet;
A month later a woman’s business was invaded at gunpoint, both ladies shot, one left dead in a closet, the other lived to summon the police;
Soon after that, a woman was killed during a burglary of her home.
Ballistics showed that the same
weapon was used in each incident; and fingerprints were recovered. Ultimately
As the trial date approached, we
finally reviewed
It was in this grim, grasping-for-straws context that we learned from sheriff’s personnel that Jefferson had been busy for years with religious study and reflection, and that he’d set up private worship services with one or two other inmates on a regular basis. My initial take on this was skeptical but the more people we interviewed, the more persuaded I became that Jefferson had embarked on an authentic spiritual quest, that it was part and parcel of the moral recovery I’d observed, and that his conversion (if that’s the word) was genuine.
So we drew up a witness list that
included the juvenile psychologist, the other elements of
Well my job was to give them a reasonable basis to make the other choice…
VIII.
The jury trial took about six months.
Right in the middle of the trial, the County Board of Supervisors replaced a vacancy in my department, that of the retiring department head, the Public Defender, the one lawyer responsible for the supervision of the 120 other public defender lawyers on staff. Herding cats doesn’t come close to the nature of the job, given the anti-authority predisposition of these aggressive and talented attorneys. The new “PD” would not only supervise those lawyers, but would be responsible for a support staff of investigators, clerks and secretaries, superintend an annual budget of about $20m, resolve a host of personnel issues, and navigate the department through a looming fiscal crisis.
I vividly remember the phone
message waiting for me at the lunch break during the trial (the jury was
listening to the several hour tape of my client’s interrogation and didn’t look
happy about it). My new boss would be
me. I had just been appointed the new
Public Defender for the county (the second oldest PD’s office in the
Well, they were going to have to do without me (except nights and weekends) for several more months.
Eventually the jury got the guilt case and after a respectable period of deliberation, found JM guilty on almost everything. There Was an acquittal on one felony count, a questionable sexual assault charge; it would hardly matter in the big picture.
The jury was now a unified body: Twelve, cold faced citizens who now knew beyond any reasonable doubt that the killer who had done these terrible things was sitting right next to me, began studying Jefferson Matley more closely. We had the weekend to recoup. The penalty phase began on a Monday.
IX.
The prosecution, having already presented devastating evidence about the crimes, needed to show the jury very little more for the penalty phase. So it quickly turned to us to proceed. We now needed to present the whole picture, the social history of the crimes, the setting for our plea for mercy.
Any effective social history benefits from a qualified story teller, sufficiently detached to be credible, sufficiently engaged to be effective.
We didn’t call Mother B as historian-- for reasons now obvious it would have been a disaster.
The social historian is often a
hired expert witness with credentials in sociology or psychology who draws
together and narrates the defendant’s biography, many of which also have to be
independently proved. We didn’t hire
someone to do that task, but relied instead on well placed witnesses who could
explain the family dynamic and help place
In this effort, we were greatly assisted by two men, both of whom were very reluctant participants:
·
the psychologist who had evaluated
· the Sheriff’s Department jail chaplain.
The
chaplain had become aware of
Dr. Hall was an impressive figure: As a tall, dignified African American man with a non-nonsense attitude, he could not have been better cast for the role. Except, had he been on the jury, he would have leaned toward execution. Like many Roman Catholics I’ve known, Hall lived and talked a robust, practical morality, the kind of tough love / rule-and- consequences attitude shared by so many lay Catholics who toil in the vineyard of criminal life (I think if the Roman Catholic cops, for example). Hall believed in capital punishment and made it very clear to me that if asked he would truthfully answer: Jefferson Matley’s murders had earned him a place on death row.
Dr. Hall was the archetype of the
father that
The penalty phase defense case
lasted into the second week before we had called our last witness, and
introduced our last records. As my
co-counsel and I prepared our final arguments, we remarked at the good chemistry
we’d observed between Dr. Hall and the jurors. He had done a brilliant job in
conveying the ugly dynamic between mother B and son, including
I was completely comfortable with that testimony as I’ll explain in moment.
The chaplain’s testimony was less effective for the same reason that Hall’s was a hit. The chaplain wore his mercy-for-all sensibility on his sleeve. I’m sure it goes with the cloth, but the price is an ineradicable dissonance with the common sense morality of the so called “ordinary” people. I remain persuaded that no true-believer death penalty opponent can ever be fully credible when making a plea for mercy for a particular human being. “Death qualified” jurors who each have taken solemn oaths to impose the death penalty in appropriate cases, need to hear from people who think more or less like they do, not from true beleivers.
As aside: At this point in my long career, I had never really reflected much on my professional opposition to the death penalty, a position that I’d describe as institutional opposition, i.e.: I believed that though any given individual case might well “merit” the ultimate penalty, there were systemic reasons not to bother with it at all: These were the general reasons like the burden of limited court resources, the risk of error, and my core distrust of excessive government power. [Readers of my various post “life-of-crime” writings already know that I no longer oppose the death penalty; this is an evolution in my thinking based partly on the increasingly compelling evidence of a life-saving deterrent effect.]
As to
It was the total gestalt of
So I knew we had done our job. For those jurors not totally closed to the possibility of mitigation, we had demonstrated three things as well any they could ever be, given the inherent limitations of the available evidence:
But we knew a fourth thing. It would be perfectly reasonable for every juror to agree with our case and still say:
“So what? Too many dead people. Too much damage to the innocent. Leave mercy to God.”
The final penalty arguments were excellent on both sides. Copies have been studied by trial lawyers and parts of them have been used again. In this sense our jury was as well informed as one can expect. It was all on the table…
Before the jury retired to deliberate, I left them with a short word picture. I described the inmate known as “the old man” (for that was what the other inmates called him, the ones who came and went from prison). He was always there. And I described the prisoners over the years he had counseled and helped, and the disaster he had averted as once long ago in Youth Authority he had done the same before.
I described the day of his death in the corner of the prison yard, the story of his last day on earth, having not yet made amends, but having made a difference…
I admitted the obvious: this was just a picture of what might be. But it was a future that could be and one in their power to allow. Their decision was, after all, all about the power of hope. And faith…
The
penalty jury was out for a full week before the signs of internal disagreement
began to surface. From their questions,
their faces and some other hints we began to glean in the second week of
deliberations that there was a slow but inexorable progress toward unanimity: they were going toward death.
It has been the experience of most trial lawyers that cases almost never hang up without a small community of dissenters, usually three or more. It is extremely difficult to hold your ground in a group without having the moral support of a small sub-group to which you belong. When the minority begins to lose members, the slide is often precipitous.
The trial court, having used up six months of precious resources, was reluctant to declare a mistrial.
Imagine our surprise when after two weeks of discussions, the jury ended deadlocked, 11-1 for death.
Given the magnitude of the case, that was far too little dissent to dissuade further prosecution. There would be two more trials….
X.
The next trial took place the following year. In the meantime, the case was closely reviewed for possible conflicts of interest. For a host of reasons – one of which was my effective unavailability given my new responsibilities and another was the prospect that I and my co-counsel might now be called as defense penalty witnesses – the case was referred to the county death penalty panel. Two excellent choices from the list of death penalty appointment eligible trial lawyers were assigned.
We turned everything over to the new team, all investigation results, research, motions, reports, and transcripts. I was sure we’d left no stone unturned. Everything that could conceivably help the new defense team was provided. After that, Jefferson Watley’s defense dropped off my radar, though never quite out of my mind.
The second trial proceeded much like ours had except that the jury heard the guilt phase evidence in a new context: the crime evidence was presented to show the jury what Matley had been convicted of doing and why they were being given the penalty decision.
The new team’s penalty defense essentially followed our playbook -- the same witnesses, the same narratives and the same theories of mitigation.
And the same outcome.
I mean exactly the same outcome ensued. After a long deliberation, the new jury deadlocked exactly as the last on had: 11-1 for death.
When the lead trial DA (we’ll call him “Grayfox”, one of their most experienced prosecutors – he looked like the DA in one of those 60’s TV series) announced his forthcoming retirement, the courthouse rumor mill went on overdrive. Surely the DA’s office would throw in the towel (allowing a life without parole or “LWOP” sentence) rather than bring in a new prosecutor.
Then the news reached us:
Grayfox had offered to return from retirement without salary just to try this case a third time. His office readily agreed. So the lines were drawn.
The following year, the third jury was selected in the case against Jefferson Matley. It was in interesting experiment, really. Neither side had much new to present, except the hope of selecting a “better” jury.
I wish I had been in the courtroom when the case concluded. Another 11-1 deadlock for death.
A few weeks later, I was in my office on the second floor of the courthouse when I heard the news from the ninth floor. The DA’s office would not seek a fourth trial, which meant that the trial court would impose life without parole. In three years, 33 jurors had voted to execute Jefferson and 3 had dissented. A miss is as good as mile where unanimity is required. Had any one of those dissenting votes traded places on a given trial with one of the death votes, JM would be awaiting execution on death row.
My own calendar was crowded those
days, but I managed to stop by the sentencing courtroom early in the morning. I
said “Hi” to the judge, and asked Matley’s defense
team if I could see my old client for a minute.
They agreed and the bailiff brought
I’ve not seen him since.
At
Non-Christians might find it strange that the day of Jesus’ torture and execution by the occupying Roman authorities is commemorated in this way. But this is about hope, is it not? I found myself (a recovering Unitarian) greatly moved by this service. I’m convinced that the narrative of the Passion and its aftermath carry a powerful, even shocking relevance for the contemporary human condition.
The next morning, I picked up the
morning paper. In the City Section, I read the account of
The victims, the survivors,
friends and families who attended
Then – and the telling of this still part still seems unreal:
Victim after victim got up in court and forgave him.
XI.
As I promised, over the next few postings we’ll be exploring the implications. Any probe into a particular event or narrative of sufficient depth will always reveal the hidden universals that were at work.
My discussion will go on a bit, but not in the “counter-example model” known to most parents (one of those “See – don’t do that!” admonitions). Instead, we’ll be going on a mining expedition. Here goes…
THE
I responded to an excellent article in the journal of religion and public life, First Things (Issue 145) by Professor J. Budziszewski, who had cogently refuted of one key element the conventional wisdom – the belief that Christian doctrine can never condone the death penalty for murder. My letter was published in the following issue, followed by a thoughtful response by Professor J. Budziszewski.
Here is part of what I wrote:
Budziszewski reminds us that established Christian tradition
recognizes justice in the classic Torah-based model, and favors individuated
mercy, not blanket clemency. In effect he argues that indiscriminate clemency
for murderers perverts both justice and mercy. Because part of Professor Budziszewski’s argument criticizes utilitarian ethics, I
would distinguish ethical realism (as it is my own position and that of a
number of observant Jews and Christians).
With many ethical realists (those of us who are
also theists) I accept both the objective reality of ethics and the need to
make them realistically operative. Unlike utilitarians,
we recognize that moral knowledge is embedded in the warp and woof of reality
by the One who created all that is, but we still recognize the need for
incentives and disincentives and the social “muscle” needed to make them real.
Moral behavior in the day-to-day world is distributed along a crude bell curve
of probity, with the sociopaths and naturally enlightened occupying the
respective edges, and the rest of us populating the middle group. Even the most
self evident moral principles are generally not self executing. Most people,
most of the time are governed by a combination of moral inclination, moral
training (currently in decline in this culture) and the classic
rule-consequences model (now weakened by moral relativism).
Without “rule-consequences” civilized life is
doomed. Ethical realists know that the
death penalty is a crucially necessary component of any justice system that is
designed to implement core ethical principles.
With that backdrop, I’ll address some of the moral and spiritual implications of “Jefferson Matley’s” case.
XII.
Mining the “Jefferson Matley” Case:
The Matley trial was just a sketch of a real event, altered in the non-essentials for the obvious reasons. His story will now take on the contours of a parable.
I promise to return to my “you were spared for a reason” remark to JM on his sentencing day a bit later in the discussion. But first I need to talk about the absence of a moral framework in his young life, which was a particular example of the effects of a culture whose religious moral underpinnings have been taken away. In his little family (as in so many others in parts of the urban the African American community) the surviving traces of a formerly robust religious mindset can be detected only in a dying generation, typically represented by great-grandmothers. When you add to this moral vacuum the corrosive effects of the drug culture, a broken educational system, and the hectoring influence of a shallow celebrity-driven drive to easy wealth, you get … trouble.
The huge problem with moral relativism in all its variations, even in its least malign “let’s just get along” mode, is that it eventually leads to ultimate social chaos followed by the natural social reaction: authoritarian tyranny. One should be neither surprised nor particularly dismayed that the religious vacuum is filled by more authoritarian and repressive forms of religion. Things could be far worse.
Relativism automatically devolves authority into raw power relationships that, over time, are subject to challenge as illegitimate. But the challengers are equally illegitimate. Relativism changes “that’s wrong” into “that’s wrong if you get caught”.
Young Jefferson Matley, indeed all children when they are deprived of a
robust moral framework, can become developmentally crippled, gravely
compromised as civilized adults. This
was made crystal clear when
And this presents the first apparent dichotomy: When you provide undemanding love only, without an overall moral structure linked to a principle-based, rule-consequences model for its implementation, you produce loyalty driven amorality at best and moral chaos at worst. But a cold hearted, seemingly loveless rule-consequences model fares only marginally better, often producing anger, resentment, and destructive rebellion.
The problem is complicated because children come equipped with different temperaments, responsive in varying degrees to the rule-consequences vs. nurture-and-trust models. Moreover, we parents are likely to miss these important personality variations among our children, sometimes falling into the trap in which the more aggressive ones are thought of as “bad” and the meek ones as the “good”.
You will detect two classic human archetypes in these models: the fatherly authority and the motherly nurturing models, both as roles that are routinely being taken up in turn by men and women as the circumstances require. Children accept each function – whether from the same person or from a couple -- because they instinctively need them both.
Children are also adept at seeing through pretense, hypocrisy, and hollowness. Just as a dog can smell fear, kids can smell the absence of a secure moral foundation among the adults who are charged with raising them. Which brings us squarely back to the quivering, bucket shape gallon of water in the image that I described in the Introduction; and it returns us to the most important set of questions that any child can ask us: The questions that begin with --- Why?
XIII
Mining Jefferson Matley’s Story:
For a book still unreleased, I describe an encounter with a child amid the rubble; surrounded by the pervasive damage done by amoral skepticism, we care called to respond with hope…
[][][]
It is the
moment before dawn. The deep purple sky
in the East has begun to brighten. The
wind stirs. We are standing amid the
dimly lit rubble of four thousand years of religious thought and belief. And the zone of destruction includes more
modern artifacts.
The sun breaks
over the horizon, a single ray lancing through a gap in the clouds There! Under that immense pile of stone, a plate
bearing the name Heraclitus; nearby the shadow of a tree, and a gentle spirit,
hands folded, sits in repose. From another
pile, the hand of Nietzsche’s Zarathustra reaches
skyward. The wind dies. By a broken wall, you see a Menorah, its
seven candles still flickering, having burned the entire night. Nearby, stands a wooden cross, an empty
grave. In the mid distance, the tip of a
single spire catches the morning light. A dove rises. As the sun flickers higher, gaining over the
clouds, we see more.
The smoke
clears. The necessary materials are all
here. On a nearby hill, still in deep
shadow, we see a flat place. We
approach. The cleared area appears to be
very large. Yes. A foundation has already been erected, a
foundation for a structure large enough to use every scrap of material around
us and more.
All of the
ethical and spirit traditions, all the religions of the world have survived the
night, each with its own window to the mind of ultimate being, to the soul of
deep reality, each with its own piece of the essential wisdom. Others are arriving, bringing tools. Surely, together we can build on this spot.
Something
touches you and you turn. The child is looking up to you with wise eyes. She smiles and asks you five questions:
What is evil?
Why is evil?
Why should we
bother to do good and avoid the bad?
Why are we
here?
Why should we
care what happens in the world after we die?
It is
time. Your test starts now.
Time to begin.
[][][]
Let me propose a very broad definition of the religious function in life. Any living, relevant religion consists of an active belief system and a supporting community that (at the very minimum) does these two things:
At present there is no purely secular, utilitarian answer to the core “Why” questions. Plainly put, we adults really can’t satisfactorily answer a child who asks these kinds of questions without relying on religious thought. Even secular adults tend to realize this basic fact of nature, and attempt to fulfill their obligation to transmit moral wisdom by uttering fairy tale versions of religion as if the adults actually believed them. This tends to set up a “You lied to me about Santa Claus” moment later in life. The alternative is the utilitarian, get ahead model, the “this is what we need to do to get along.” That path is wide open to corruption.
Which brings me to the question of character: I am persuaded that JM was actually converted to a religion-based moral view, a recovery from the secular get-ahead model, gravely corrupted by a damaged sub-culture and an ugly family dynamic.
But I am not yet persuaded (on all the available evidence) that JM’s character would be strong enough to function in the same world from which the police removed him. Not without serious backsliding. I suspect Matley is in the very place he was “meant’ to be. I pray that his life will in some way vindicate the judgment of the three courageous jurors who spared him from death row.
Character is like the inside of one of those trees whose outer bark is capable of concealing inner hollowness, damage and structural weakness. We can’t know the strength of character of a close friend, let alone a stranger, until it has been tested under stress.
We can think of moments of
profound disappointment, in friends, in people we thought we knew, in
Presidents and, yes, even in ourselves.
We don’t need to be affiliated Christians to grasp the power of its redemption and renewal model, a power I directly witnessed in JM’s case. I believe that all religions worthy of the name contain at least one such profound innovation in applied spirituality. These innovations are discovered universals that are no longer the specific property of the originating religion, in much the same sense that our Neanderthal cousins didn’t own the patent for fire.
Now let me approach this topic from a different place. Assume you are from a secular tradition and that you grasp the importance of finding some transcendent basis – grasping for anything plausible – for caring about right and wrong, particularly on the time scale that will outlive your own life span.
The desire to be remembered well can sometimes be transformed into a “legacy ethic” in which this normal human desire supplants some of the missing motivations formerly supplied by robust religious convictions. Therefore it has served is a useful bridge state for those who are trapped in the secular paradigm, but at the end of the day is only a pale imitation of the larger, more powerful “eternity ethic” which requires something close to religious belief.
This is the powerful notion that one’s life has significance (especially its moral content) on the stage of eternity. Such an orientation doesn’t flow from the perishable monuments we might leave on the planet as immortality surrogates. When one’s longing for lasting significance leads one to find the eternal river of being and seek to join it, a quasi-religious conversion experience often follows and inexorably leads to an ethical commitment.
This is the
eternity ethic.
It begins with the acceptance of the eternal river of being as authentic, and leads to a longing for communion with it. True ethical commitment emerges from the concomitant realization that one doesn’t easily mount that numinous train when weighed down by the baggage of an unworthy life. In either model (where the legacy ethic is the eternity ethic “lite”), the prospect of a life wrecked beyond repair presents itself as a wall. A life so flawed by one’s bad choices and actions that it is not worth remembering except as some dismal counter-example may lead to nihilist despair, destructive actions (the pyre legacy), even ultimately to evil itself.
But all of us carry such baggage. Acquiring guilt is an inevitable consequence of making real world choices; we accumulate it as a vessel accumulates barnacles. Enter the specific spiritual innovation based on a theology of ongoing rebirth and resurrection through the example of deity’s character and persona merging into and uplifting a mortal life. In this model, deity endures co-suffering with us and promotes our rebirth (redemption). Then we are allowed to shed baggage, permitting us to carry the essence of our repaired mortality lightly onto the eternal river of being.
The redemption model, first articulated in Christianity, supplies such a robust under-girding for the common morality. This explains its power to change JM’s life, and why its most effective selling point in the spiritual market place is the pervasiveness of human guilt.
Is there a rational model, consistent with science, that can explain my “You were spared for a reason” remark? I’ll take that question on in my next posting.
XIV
Mining Jefferson Matley’s Story:
Fate & Destiny: The “Meant To Be”
Question
The discussion now turns to what Jefferson Matley’s situation implies about faith, fate and ultimate consequences. My discussion is driven more by intuition and experience than by doctrine, whether religious or scientific.
Fate vs. Destiny
Although the terms “destiny” and “fate” are now used more or less interchangeably, I see distinction between them based on usage: Both are based on the notion of strong pre-determinism (a position with which I disagree). In both, the source of predetermination can be a form of natural law or spiritual power, in effect, fate or destiny decreed via the will of deity or by the laws of physics. I see a subtle difference between them.
The notion of fate connotes something dire, compelling, and inexorable. For me the idea of fate carries a very a strong sense volition overborne.
But the idea of destiny is so often associated with epic accomplishment that it seems to me to connote a calling, even a suggestion that one’s destiny might be missed, just as one’s sense of calling can be neglected or ignored.
In this special sense of the word, I can observe that the various pre-biotic chemical stews on earth were “destined” to generate biology -- not in any particular instance, but over sufficient time somewhere. I am persuaded that even a weak tendency in nature to “accidentally” generate fecund “designs” always will produce results somewhere (think the bubble form giving rise to an enclosed chemical system, then to a reproducing cell) because nature squanders such enormous resources on the astronomical and geological scales in the form of time, repetition and variation. Looked at this way, “destiny” has opportunistic connotations that fate lacks.
These notions are closely bound up with the Hindu/ Buddhist notions of karma and their popular variations. We say that “what goes around comes around”. In effect, the idea of karma is that one’s bad acts generate a compensatory influence in this or some later life. Karma captures the notion that moral and anti-moral behavior has a deep tendency to refract back on the doer.
Character and Deep
Tendencies
That most succinct of the ancient Greeks, Heraclitus, put it nicely when he said that “Character is destiny.”
In my personal assessment of life, the universe and everything there are three key points that relate to fate, destiny, and all of the “meant to be” questions:
1. That our lives are filled with deep tendencies – as opposed to meaningless accidents on the one hand and rigid determinism on the other.
2. That for this discussion to be intelligible, we need to be clear that we’re talking about the human condition in terms of our decisions and their consequences.
3. that the purely physical forces (like gravity and the fracture points of materials) can lead to unexpected but not entirely unpredictable catastrophes.
The quality of human decision is itself a powerful force. My favorite passage from Goethe:
Concerning all acts of initiative and
creation, there is one elementary truth, the ignorance of which kills countless
ideas and splendid plans; that the moment one definitely commits oneself, then
All sorts of things occur to help one that
would otherwise not have occurred. A
whole stream of events issues from the decision raising in one's favor all
manner of unforeseen incidents and meetings and material assistance which no
one could have dreamed would come their way.
Whatever you can do, or dream you can do, do it. Boldness has genius, power and magic in
it. Begin it now.
I am persuaded that what we call Providence ( by whatever name) is real, not as a thunderbolt from the sky, the kind of mountain-moving God event depicted in ancient texts, but on the level of the deep tendencies in our lives (sometimes ignored, unseen, and unrecorded). These are often actuated when, as Goethe put it, one definitely commits oneself. Such a “commitment event” is often initiated when we experience a moment of receptivity. Whether we choose to name the incoming message inspiration or calling, the sense is almost inescapable that we have been approached by someone or some being greater than ourselves.
When I was in the territory of the deists, deity was revealed in design, but remote; more architect than neighbor; a source of moral authority, but disengaged; a magnificent non-presence. The “God” of the deists, the master designer, could (I now think) be the same God whose death Friedrich Nietzsche proclaimed in the 19th century. After all, few architects outlive their buildings.
My own intellectual, experiential and spiritual journey first took away from, but has finally taken me back into the territory of the theists. There, deity is real, relevant, alive, moral, engaged and powerful. But that encounter does not reveal a master puppeteer; instead, I detect a more pervasive and subtle presence whose effect on events is cumulative, gradual, but infinitely persistent. .
So I choose to see destiny as a
path or paths that we choose or reject.
It is in the particular “fittingness” of a path that gives us the
impression that destiny chooses us. There is, of course, that hard fall from
the horse in which a specific prospective path looms ahead, inviting that
commitment described by Goethe in which
So, how can the “modern” mind, imbued with the hubris of science and its capacity to predict and explain accommodate to all this? How does any of this scan, other than as a fantasy construct?
Indeterminacy,
Probability and the God Thing
Developments in theology have
outpaced its “scientist” critics. For an
excellent sample of how sophisticated theology has become, especially in its
interface with advanced physics, go to the lectures, articles and books of the
physicist,
My narrative surrounding a single criminal case is hardly the place for an extended discussion of technical philosophical and theological issues. Let me just say that I side with those who see the universe as containing a blend of physical law and law-like strong tendencies with a degree of openness and indeterminacy. It is this very openness and indeterminacy that allows for the emergence of creative innovation.
For these and related reasons, I believe that it is actually impossible, even in principle, to fully predict the future. I also believe that human decision is necessarily like the rest of creation, that is, our choices are partly constrained but partly open.
I am personally convinced that the influence of deity in our lives is real, but subtle, and that it operates in ways that involve the exchange of information and the almost undetectable allocation of the improbable. Miracles are both rare and real for this reason. Miracles do not “violate” physical law, the just exploit the cracks, as it were, in the construction of the universe to produce wildly improbable, but wonderful outcomes.
Matley’s Case: A Matter of Salvation?
Coincidently, about the time I was getting ready to write this, a young woman from a Chinese background, asked me whether I believed in fate and destiny (this was during a hair trim). In my explanation – completely off the cuff – I hit on the connotative differences I’ve set out above.
In thinking about the topic later
in the context of Matley’s case, it seemed that he
had been “fated” to turn out bad.
In this sense, Heraclitus can be heard, “I told you so. Character is destiny.” The Greek tragedy of that ancient era is a window into the fatalistic mindset of the culture. But the great innovation in the human condition, the redemption / rebirth model, had yet to be demonstrated. Heraclitus lived about five hundred years before the crucifixion of a certain very popular Jewish rabbi.
And Matley’s case was a tough one. His moral rebirth took far too long. Only until he’d done things of such profound malevolence that very, very few would be able to forgive him; only until he had suffered his final arrest and the concomitant separation from the degrading family dynamic, was he even receptive.
The intervention that spared his life was one of those highly improbable events that qualify as miracles.
I am convinced that the outcome of his case was “meant to be” in order that the rest of us, however cynical and hardened we may have become, could focus on the really improbable event behind the trial – Matley’s moral recovery.
In my last posting relating to the Matley case, I will talk about Ultimate Consequences.
XV
Mining the Story:
A Pan-Religious Vision of Heaven and Hell
Dante understood his era as a time when most people thought in concretes, while some few were able to think allegorically.
My account will be a more abstract vision than Dante’s, but it’s made up of metaphor and allegory as well, because the topic stubbornly continues to elude mere prose.
To begin, we need to review why the modernist culture has failed so thoroughly in sustaining a sufficiently transcendent basis for our most fundamental precepts:
Here is our culture’s problem in a nutshell:
[a]
All our species’ robust ethical systems (grounded in religious and quasi-religious thought) have been able to answer the child’s “WHY?” with a readily understandable narrative of moral transcendence. Until recently, we humans have enjoyed the capacity to explain how some transcendent reality (deity, karma or other), really does endow morality with a persuasive force and authority (a sufficient claim to an allegiance) that reaches well beyond anyone’s individual life span.
[b]
But the “modern” (& post-modern) ethos is so infected by a skeptical mindset (especially as it concerns religion in all variants) and by the exaggerated reach of materialistic empiricism, that all explanations of transcendent moral authority are dismissed as primitive superstition.
[c]
This form of skepticism is so corrosive (I call it epi-skepticism) that, unchecked, it is fully capable of dissolving the foundations of civilization itself.
So the implications of First Question and the Last Question must be squarely addressed.
There is more to
This Life than…
Purely mechanical / physical explanations do not (because they cannot) satisfactorily explain the fact of conscious being as direct knowledge. The truth of our very experience of awareness and of its connection with other instances of itself is self validating because it is in the nature of being to know itself.
The subsidiary, constituent, physical / biological / electrical processes associated with the function of our conscious being can be deconstructed. Yet the sum is always greater than the parts, because … it is not a sum at all. I am fully persuaded that conscious being, as the “I am” experience, exists because of its formative relationship to universal being. Without this relational connection to the universal, local being (our own “I-am-ness”) could not exist at all.
I make these assertions, of course, not as the product of logic, but as a report from the field, as primary evidence.
There are many corroborating reports.
As each of us faces the prospect of personal death, we should pause to integrate three aspects of the bigger picture as it is revealed to us by reason, science and the art of introspective intuition.
Once you are conceptually and experientially capable of escaping the artificially narrow confines of arch-materialism and arbitrary accidentalism, and you are able to see that even a tiny slice of reality always reveals emerging universals, you are able to see the world in a dramatically different way. Your world picture expands as non-subtly and pervasively as a gray scale picture transforms to color and as a flat color picture acquires depth.
Everything that has emerged in the universe (all form order, and design, including our own local versions of the “I am”) was prefigured in a pregnant, yet-to-be expressed universal form.
The Eternal Dance
Let’s now go to the heart of the Question.
What we see in this unfolding, unfinished universe is an eternal dance between universally engendered creation processes (that propagate variety) and integration processes (that bind to unity); this dance has given rise to life, conscious being and ongoing creation. As conscious beings with the capacity for creative endeavors, we are the “anointed” agents of that ongoing trend (which, as it bubbled up into conscious being as the primal motivation, became the meta-purpose of life, the universe and everything).
We can be absolutely confident that the death of the current universe, if it ever takes place, it will be succeeded by the birth of another.
So the real Question (of which the First / Last Question is just a variation) is this: Is anything of value ever finally lost? Put another way -- Can there be full and final extinction?
Just as Einstein began his discussion of relativity with the startling assertion that “there is no absolute space” we should now be able to assert with similar confidence that “There is no absolute extinction of that which is manifest as a universal.”
But do we die? Of course. We die a little every time we go to sleep and we die more completely whenever we go into coma. Every human awakening is a partial resurrection within space time.
Incarnation
Two thought experiments:
Consider that you are really reincarnated, reborn without being told you were reborn and without any detailed knowledge of your former past. Compare this with the case where you awaken in a state of profound amnesia. Both are cases of death and resurrection are they not?
A side thought: Are we just the sum of our memories? Hardly. Memories alone are not “I am”. Our recorded impressions of experience themselves are inert until that they are partially re-experienced by “I am”.
Several people listen to and are profoundly moved by a Bach fugue. Assume these listening events are spread out over two hundred years. Was not some universal part of the “I am’s” experience reincarnated in these audiences? Great art is the establishment of a relationship between artist (whose creative work can be understood as one of discovery) and the audience; this is a relationship that has pan-temporal and spatial qualities, by its recreation of an esthetic and spiritual experience, the instantiation of a universal.
Saints
We humans – each of us – are imperfectly instantiated examples of universal being; we’re inherently imperfect because space and time constraints always limit us, and because the scope of our lives in the realm of events, exchanges and interactions (the so called “real” world) favors becoming but never quite achieves completion. We’re like somewhat flawed performances of great art.
“Completion”, in the sense I’m using the term here, entails the pure and final alloy of creative differentiation with perfect integration and coherence. This describes a project whose scope exceeds the limits of any finite stretch of space-time. The unending “dance” of these two universals defines history.
Our saints (recognized and unrecognized) have come closer than the rest of us to instantiating the universal being in tone, style, integrity, conduct and spirit, but the richly varied texture and history of their lives and relationships is part of the ongoing human drama.
Hell is Baggage
Kept
With this necessary background as a preamble, I have come to believe the following about heaven and hell:
At each moment that we “die” in our lives (the many times we die partially and the one time we die “finally”), our local version of universal being tries to re-merge with the parent universal being, the “arch-being”, deity, the primal “I am”.
Parts of us just won’t fit. [Recall the baggage metaphor and our longing to join the-eternal-river-of-being – the XVII June 29th posting.]
We naturally cling to all our baggage while demanding reentry. And letting go of that baggage is like being burned alive.
We all begin in innocent beings, and suffer bruises, acquiring baggage that damages our innocence. But when we truly and authentically shed this baggage while still in life, (as in the repentance / redemption model) the end-fire becomes more like a forge or a smelter from which we are reunited with ultimate being and healed.
I think of those who cling fiercely to their dark baggage to the very end (perhaps captured by the deadly conceit that they were fully defined by it). I can readily imagine a truly malevolent life whose conscious expression is suffused with the bleak integrity of mal-purpose, actually blind to that precious innocence with which we were initially gifted. I can imagine that deeply warped persona, now well dominated by evil, being drawn down by that negative integrity into the final fire. And I can vividly imagine a moment of extraction, when that one precious element of innocence of the former self is excised, dwindling as it “falls” upward. The evil persona glances up, and in a painfully clear moment of truth, suddenly feels separation, bereftness, and banishment; then falls into the abyss.
Such moments are beyond temporal reckoning. They are – as is hell – eternal moments.
Reasonable Faith
Articles of reasonable faith:
All that is essentially good is also a universal.
Nothing universal is ever finally lost.
The truly evil must face the fire of excision followed by the consciousness of extinction.
The partly good must pass through and be cleansed by the “fire” from which rebirth is forged.
The dance goes on.
The project continues….
AND WHAT ABOUT THE REAL JEFFERSON MATLEY?
And what about him?
JM’s story continues….
I couldn’t address the ultimate fate of “JM” (of the real man on whose case this trial and punishment narrative is based) unless I were allowed to know the rest of his future. His story is unfinished, as is ours. In that respect, we are all at sea on the same raft.
But I do think that the person I described at trial, the portrayal of the “old man” in the prison yard on his last day, that person – if “JM” lives to become that man -- will be redeemed. A generous deity will welcome him home....
JBG