Exclusively in the new print issue of CounterPunch
GOD SAVE HRC, FROM REALITY — Jeffrey St. Clair on Hillary Clinton’s miraculous rags-to-riches method of financial success; LA CONFIDENTIAL: Lee Ballinger on race, violence and inequality in Los Angeles; PAPER DRAGON: Peter Lee on China’s military; THE BATTLE OVER PAT TILLMAN: David Hoelscher provides a 10 year retrospective on the changing legacy of Pat Tillman; MY BROTHER AND THE SPACE PROGRAM: Paul Krassner on the FBI and rocket science. PLUS: Mike Whitney on how the Central Bank feeds state capitalism; JoAnn Wypijewski on what’s crazier than Bowe Bergdahl?; Kristin Kolb on guns and the American psyche; Chris Floyd on the Terror War’s disastrous course.
Reflections on the Peterson

Tabloid Justice


"Killing too is a form of our ancient wandering affliction"

Rilke, Sonnets to Orpheus

I usually come to this forum with weighty thoughts about Amerikan Christo-fascism etc. On subjects like Bush’s re-election victory party-the attack on Fallujah. But politics and popular culture are never far apart in the age of fundamentalism, so today I want to say a few words about what many will regard as a banal subject-the verdict in the Peterson case and some of the things that verdict reveals about the affects of tabloid culture on the judicial system.

L’Etranger American Style

From the start the whole thing was a media dream come true and became moreso with each new revelation. The hysteria outside the courtroom (whipped up nightly by figures such as Nancy Grace and Gloria Allred) was matched by the tabloid nature of the case made by the prosecution and then, judging by reports that are starting to emerge, by what went on in the Jury Room. (Just one highlight: the foreman, both a doctor and a lawyer, with 19 notebooks filled with notes he took during the trial asked a willing judge to dismiss him because he was unable to get his colleagues to discuss the evidence and, reportedly, had been threatened by one. The hatred that most of the nation had come to feel for Scott Peterson had its day in the Jury Room; little wonder that the verdict spilled over into celebrations outside the Courtroom that included jeering Peterson’s mother when she left the courtroom.)

Be that as it may, I may be alone in the view that based on the evidence presented the State did not meet its burden. Indeed, throughout the trial many legal commentators pointed out how weak the State’s case was-no evidence of where, when, and how the murder occurred; no forensic evidence in the home nor in the boat–and how much the case depended on an appeal to considerations that had nothing to do with Peterson’s guilt or innocence for the crime with which he was charged. Having rushed to judgment and compounded their error by going for First Degree Murder and the Death Penalty, the State knew the one thing it could count on was to offer the Jury those things that would assure they’d lose all interest in a dispassionate weighing of the evidence. Scott Peterson was guilty of something else and that guilt was great enough to prove to his Jury beyond a reasonable doubt that he must be guilty of a premeditated and truly heinous act. (So heinous in fact that a federal law bearing the name of his wife was passed earlier this year.)

Peterson was guilty allright. Guilty of being a cad: an adulterer and a liar. And also guilty in the way the protagonist was in Camus’ The Stranger, guilty before the bar of public signs. A grieving man should not rent pornographic videos. He should not spend extensive time talking to his mistress on the phone. He should not sell off any of his wife’s possessions, especially before her body has been found. The State used such behavior to whip up a frenzy of hatred so that the kind of psychological inferences that reveal nothing but a total lack of psychological insight would substitute for lack of evidence. The jury was asked to conclude that the manifest defects of Peterson’s character were evidence of his guilt. Not of a motive mind you; even the prosecutors could see that the Amber Frey tapes lent scant support to the notion that Peterson killed his wife so that he could marry his mistress and ample evidence countervailing that hypothesis. Countless hours of tapes in which a coached Frey tried to entrap Peterson never yielded the anticipated smoking gun. One possible inference from that fact was that it didn’t exist. (Much will I think be said about flaws in Peterson’s high profile defender; the primary one perhaps was Geragos’ belief that the State had made his case for him; in fact, that his client need not testify because thanks to the State he already had.)

What Geragos failed to understand was that the Jury had been made an offer they couldn’t refuse. Long before the trial ever began. OJ II: a chance to nullify the nullification. Monika fallout: a chance to express our continuing collective outrage at men who cheat on their wives. The pop feminism of those whose favorite movie-an expression of the emotional range that defines their sensibility– is Fatal Attraction. Judging from the nightly performances of former prosecutor Nancy Grace, the cackling darling of Larry King Live, overwrought appeals to emotion, feminist outrage, and the kind of simplistic psychology that wouldn’t get one through Psych 101 are now what pass for prosecutorial reasoning. Take for example the inference that Peterson’s renting of pornographic videos shortly after the body was found (or before, or on a regular basis throughout his life) indicate not only that he has no remorse but that lead quite directly to the inescapable conclusion that he murdered Laci Peterson. Though it is not a concept Nancy Grace or the Jury would be likely to understand, such evidence and much else that we know about Scott Peterson points to a far different and more sophisticated act of psychological reasoning. Scott Peterson is a fairly typical white American male. That is, a pathological narcissist. Such a person driven by panic to flee an inner void requires constant reassurance of his desirability, his likeability etc. One of the reasons he lies so often is that he’s always trying to tell people what he thinks they want to hear. In such persons sexual preoccupation and activity is a primary response to anxiety and grief. The sexual gives one the momentary reassurance that one is okay and will be able to survive inner panic and inner pain. The need to rent and watch porn movies (alone in the dark late into another sleepless night, viagra drenched perhaps, masturbating oneself through tears to a momentary and evanescent relief) might, in short, be precisely a sign of a grief of some magnitude. But of course psychoanalytic inferences of this order are anathema in our Courts where another kind of psychologizing is solicited and exploited. The true and final court of appeal is our insistence on affirming our shared knowledge of the way everyone is supposed to behave to prove to everyone else that they have all the correct emotions and know how to show them as befits each situation. And from such homespun assurances vast chains of psychological inference are made apodictic– beyond a reasonable doubt.

There are two solutions to this problem neither of which will gain a hearing. (1) Amateur psychologizing should be rigorously excluded from the courtroom. Dismissed on objection; given on instruction prior to deliberation to treat as totally irrelevant. (2) Expert psychological testimony should be admitted and psychological competency should be required of jurors. Lacking either of these conditions we should realize what happened: the trial wasn’t just reported in a tabloid way; it was itself a tabloid event in which a frenzy of hatred was exploited to give the Jury the same satisfaction that erupted outside the courtroom when the verdict was announced. The public got what it wanted: the chance to proclaim their rectitude and punish a transgressor who provided a perfect image of the "kind of man" we’ve all now been taught to view in almost predatory terms.

A Word to Sharon Rocha

The media report that when you testify on November 30th you will ask that Scott Peterson be given the death penalty. You are clearly an intelligent and sensitive woman who loved her daughter (and her son-in-law) and who has suffered her loss in a crushing way. ( I am unable each time I see you to prevent tears.) Unfortunately, you apparently believe, as do so many today, that only the execution of Scott Peterson will bring you closure. This assumption is perhaps the most insidious legacy of those who defend the death penalty. The simple truth thereby denied is the one that would actually give you the full measure of your humanity and your situation. There is no closure. No resolution to your grief. The assumption that seeing Peterson executed will somehow produce catharsis and closure is the cruelest of lies.

I say this not as someone committed to non-violence but as someone committed to a crucial difference within the order of violence. I know that if someone killed one of my sons and I had the opportunity to kill that person I would do so. With malice aforethought, crystalline premeditation, and thus with full responsibility to experience both my act and its consequences. To let the State do that for me or to ask the State to do so involves a fundamental transformation. My desire for the death of another is now justified (even sanctified pop mental health fashion as the only thing that will bring "closure"). I am allowed, encouraged to want that death without incurring the psychological debt that comes with knowing that retribution, murder are what I have willed and committed because that desire for vengeance has proven stronger in me than anything else. Perversely, the inversion of the order of charity is presented as a righteous and justified act. My psyche is cleansed by the State from the possibility of knowing itself. (And when does the catharsis come: when I see the juice start to drip toward the vein; when the eyes roll up, empty and blank. And the closure: is that what I feel later that night in the quiet dinner with family and friends or in the last image that descends just as I’m about to drift off into a sleep that passeth understanding?)

A Word to Scott Peterson

I must stipulate, all that follows comes from the pen of a confirmed atheist. Now more than ever if you did it you must tell no one. And continue to proclaim your innocence. You are perhaps called to the loneliest of duties. The duty, if you did it, to bear that alone. And to know a terrible deed in the only way one can. "You must change your life," as Rilke says. The narcissistic illusion begets a tragic necessity. Certain deeds only hold out one possibility for a human being. One must become a saint: someone who makes a terrible evil the basis for an absolute good. A good to which one devotes ones life utterly, completely, right up to its end. With no redemption from what one must know about oneself every day. One’s deed must become the basis for a complete transformation of oneself. Only so can one reclaim one’s humanity, one’s existential responsibility for who one is by taking up a total responsibility for what one has done. (This is what for example Patricia Krenwinkle and Leslie van Houten have done and are trying to do.) Such a consideration is not usually advanced as an argument against the death penalty and yet it is perhaps the most compelling argument. When we put a person to death we arbitrarily arrest the possibility of human redemption. A life spent in prison is as many know a terrible thing. Most terrible perhaps is the inner process that must consume that life if it is to be anything but the repetition (especially within) of one’s crime. Sentencing someone to life in prison is our testimony to the possibility of conscience and our recognition of the ties that bind us to the man in the dock.

A Word to the Reader

The previous two sections present the two primary psychological objections to the death penalty. They are different from most of the arguments one hears and supplement them by going to place in the psyche where this is, like so many others, is decided. To resist Bush and capitalism our primary fight must be against thanatos and specifically the eroticization of thanatos. If they win that’s how they’ll do it. Thus another reason to deracinate that force from our emotional life.

WALTER A. DAVIS is professor emeritus of English at Ohio State University. He is the author of Deracination: Historiocity, Hiroshima and the Tragic Imperative. He can be reached at: davis.65@osu.edu.