First Let's Kill All The Lawyers, But Start With Counsel For The Defense, Part II

GUEST: Jack Litman, Esq.
VTR: 12/14/1999

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with Jack Litman one of the criminal defense bars most successful practitioners. I think it’s probably best if we just pick up indeed where we left off last time.

But last time, Jack, you were very excited and when the cameras went off you said there’s something you want to get to immediately and it has to do with that book. What is it?

LITMAN: Ah, yeah, I wanted to talk just a little bit about this book that I recently read without, you know, particularly promoting the book. It asks the question why is the level of violence as high as it is. And as you pointed out before, of course, it’s gone down in the last five years, it’s still unacceptably high for many of us. And the man who wrote this book, who happens to be a Lieutenant Colonel in the military…

HEFFNER: You can push the book, what’s the title?

LITMAN: Fine.

HEFFNER: We love books here.

LITMAN: It’s called On Killing by Lieutenant Colonel Dave Grossman. And, I mean his thesis is that if a society apes the training and conditioning of the military, it does so at its peril. And what he goes on to talk about is that the military had adopted very recently, really basically right before the Vietnam War the kinds of processes of behavioral modification that classical psychologists — Pavlov, B. F. Skinner — have advocated in order to change human behavior. And he points out that throughout the course of history, even as recently as the Second World War, statistics that are put together by the American military show that American rifleman, who are facing the enemy, shooting at them, that of 100 of them only 15 to 20, at most, actually fired their weapons. Why, they asked was such a low number, and this is apparently historically accurate … over time and certainly analyzed very carefully in the Second World War … why did such a low number of people fire their weapons. And the answer seems to be, at least according to him, a built in evolutionary aspect of man that we have a natural revulsion against harming our own species gratuitously. Even if there is something morally proper about war. Unless you face a dagger coming right at you or bullet coming immediately at you you’re not going to shot at a target. And the military understood this and they decided to change the manner in which they went about conditioning the people in the military. So at the time of the Vietnam War they got 90% of the people to fire their weapons in combat situations. And the kinds of things they utilized he claims society unwittingly or maybe wittingly is utilizing in training our young people.

HEFFNER: Now this is the question. How does society do this? We don’t take very many people in and train them in contemporary military tactics.

LITMAN: Well, what he … what he’s saying is, is that through the media, through video games, through the Internet, through movies we are using the same techniques of classical conditioning … desensitization of people to the pain and suffering of others. The utilization of what they call “operant conditioning” and classical conditioning. And utilizing role models who are doing unspeakably bad things and the people who view this and who are actively participating in this like it. When kids go to movies today unlike, according to him, people fifty years ago who went to a movie an when they saw someone killed, the person only killed within the constraints and propriety of the law. And then he says, “Well, what did Hollywood do over time?” Well, over time they went to situations where people killed criminals sort of outside the law, but the criminals deserved to die. Then we see more and more movies and television where people are being killed who have committed social slights against adolescents or others and now there are a whole spate of movies where people kill without provocation, in completely senseless circumstances. Now when you do that in a system of entertainment and you give people popcorn and soda and they go there with their best friends and they have a good time, this same aspect of classical conditioning … operant conditioning … social conditioning and looking at role models creates a situation where people get that, that normal reluctance we have to kill other human being removed from their psyche. And he believes that is why we have so much killing.

HEFFNER: Now, Jack Litman, I love you for saying that so eloquently. You could convince a jury, any jury … maybe not a judge, but any jury. And I say that because I agree with you and I agree with what the author has written. But now, on the last program, and I’m sure you haven’t changed your mind in these last few minutes, you are very much concerned with the defense of the accused’s rights. You were very much concerned in our country with the fact that, perhaps not increasingly, but in too great number there are those whose rights have been violated and have been convicted and often put on death row, when indeed events developed they were taken off death row. And they were indicated to be innocent.

LITMAN: Completely innocent.

HEFFNER: Okay. With your concern for rights, with your concern for the Bill of Rights , how do you deal, please tell me because I’ve been searching for a way … how do you deal with what the media, in your estimation do?

LITMAN: Well, I mean … you are correctly pointing out that we have a first Amendment and using censorship may lead to greater evils than that which we are seeking to overcome. But lots of people around the world understand, I mean you want to come over and look at Bloclef Havel in Czechoslovakia, who wrote about the responsibility that people have who possess such enormous rights as people on … who run television programs and the media have in portraying all of these horrific events. And even if we choose not to have the government, and I think we should not, come down on them and say, “you shall be able to do this, that and this” that doesn’t mean that one cannot exercise whatever common decent pressure we can to tell them to act more responsibly because the untoward affects of this type of operant and classical conditioning can have devastating consequences.

HEFFNER: Do you expect that you’ll get to the point at which those devastating results of what the media do for entertainment, for profit will lead you to say, “we’d better bite the bullet” and “there is a clear and present danger presented” and that seems to be what you’re saying.

LITMAN: Well, it seems to be what he’s saying.

HEFFNER: You seemed to get excited enough about it, Jack, so that you seemed to be excited, too.

LITMAN: Well, I’m excited enough about it because I think what he says makes a lot of sense. I think obviously there are other factors at work.

HEFFNER: Okay.

LITMAN: I mean there are other factors about the family, about social justice, about distributive justice in our society that also have a great impact on it.

HEFFNER: Okay, but you’re talking about this point…

LITMAN: Especially people who make profit off of showing horrific criminality and killings of a senseless nature in order to derive large profit.

HEFFNER: All right.

LITMAN: Yes, I think something should be done about it. Do I think the government really should step in and say there is a clear and present danger? Probably not…

HEFFNER: Why?

LITMAN: … only because, as a lawyer, and indeed, as a person who’s looking at the difficult problems on how to manage such a difficult issue, it is a very, very difficult to draw some sort of bright line to tell the people in the media “thou shall be permitted to do this, but not be permitted to do that.” You can show carnage if you show a movie that discusses historical events … where there is a lot of carnage like…

HEFFNER: Saving Private Ryan.

LITMAN: Right. But … exactly, Saving Private Ryan or Joan of Arc where you see these battles and people get decapitated and then, you know, spears go right through human bodies. But you can’t do it just because some guy decides to play Rambo and he’s going to, to shoot up a neighborhood because he wants to sell drugs. It’s very difficult to create a bright line. That doesn’t mean that the media cannot exercise responsibility and by the way, I think slowly they’re doing it. Very slowly in my … from my estimation much too slowly. I mean on TV now they actually put little signs “violence in this program” so at least some parents can exercise their discretion.

HEFFNER: But Jack, what difference does it make if you label it, if you do it but label it? “Gee, I’m slaughtering you but let me label.

LITMAN: Well because you would hope, you would hope there are enough parents around that would stop the kids. Look, I tend to agree with you. I just don’t think as a matter of, of government propriety we should impose it on the media because the result may be one that gives a gradual slippery slope toward censorship. And I am very concerned about that because we certainly need, for example in television, an independent journalistic ethic that is not fearful of looking at the government and what they do, and telling them what they do is wrong. So the government telling them what they’re allowed to do creates a problem.

HEFFNER: So…

LITMAN: And a big problem.

HEFFNER: … to cut it down to where it is you get all excited about this, you build up a head of steam and then you say, “but, we really can’t go that far”.

LITMAN: But that doesn’t mean that people can’t be responsible.

HEFFNER: Oh, Jack, I’m not talking about saying that people can’t be responsible…

LITMAN: … or shouldn’t be, or won’t be.
HEFFNER: But what do you do when they’re not?

LITMAN: Well, I guess the point would come where others, perhaps not I, perhaps I don’t have the courage to do it, will say, as you just said, there’s a clear and present danger, enough of this garage, we’re not going to just show gratuitous violence that just produces profit.

HEFFNER: You see, that’s what I meant about biting the bullet. Why not you? Why does it have to be a non-lawyer?

LITMAN: Because you…

HEFFNER: Not a lawyer?

LITMAN: Well, I mean a lawyer can step up and do it and be … some lawyers have. I mean, as you well know, lawyers are in the forefront of this now. It is the lawyers who have sued, for example, gun manufacturers and other people who let loose on society very noxious and dangerous substances, like cigarettes and the like, that are killing our children and killing our people.

HEFFNER: That’s a little bit easier to deal with, isn’t’ it, then to deal in the area of what is called the “area of ideas”, of the First Amendment. As if this kind of nonsense is really what the Founders meant by political liberty and free speech.

LITMAN: I agree with you completely. I just think that it’s hard to draw the bright line, but maybe one day by people like you pushing me, I’m step up and saying something much more positively that there is a clear and present danger, as you put it for this kind of nonsense and this kind of garbage because it is killing lots of people in our country.

HEFFNER: Okay. Enough said, I guess for the moment. {Laughter] Jack, I want to go back to some of the issues that we talked about before. There are so many of them that as I thought about this program that I wanted to raise with you. One of the issues has to do with the fact that it has been said that we, in this country, need to know much more about our system of justice, our criminal just, or of civil justice. And that to achieve that we need to take this thing, this camera that I’m pointing at and bring it into the courtroom. Now, you and I have discussed this in a number of different settings and I’ve wondered … because it’s been so long since we’ve discussed this, what your feeling is now about Camera in the Courtroom, {a} and (b) putting the results of having a camera in the courtroom on the air. Because there’s a vast difference between the two things.

LITMAN: Well, I don’t think I’ve really changed about having cameras in the courtroom certainly in criminal cases. My view has been and continues to be that if there are appropriate limits to the unrestricted use of cameras in the courtroom, then cameras should be permitted in the courtroom in criminal case if you give the defendant and maybe some people would argue, the prosecution as well, a veto right. The unrestricted use of cameras in the courtroom I think is an enormous problem as you, more than anyone I think has eloquently pointed out. To paraphrase a very good friend of mine, when you take the eye of the camera and place it under the tent of an American institution you do more than illuminate that institution, said Richard Heffner, you profoundly change it.

HEFFNER: Okay, let’s, let’s…

LITMAN: And you change it in a way that is obviously incompatible with the underlying premises of justice. Television is quick, it is sensational, it is driven by entertainment and profit. The criminal justice system which is there to adjudicate cases is by necessity tedious and solemn and very slow paced. And when you put a camera in the court, the untoward effects of that, I think, can be devastating.

HEFFNER: Now, Jack. I think it’s so important to differentiate between putting a camera in the courtroom because my guess is that you don’t object to a camera in the courtroom as much as you object to what do you do with the tape or the film. I mean if you had a cameras in the courtroom for teaching purposes to record everything that goes on in the court, and then used that to teach apprentice lawyers, young lawyers, law students, I doubt you would have an objection to that.

LITMAN: No, I understand what you’re saying. But if you have a camera in the courtroom and give the people in the media editorial control and directorial control, not simply as to what portion to show, even if they show all of it as to which case to show, you are skewing a system inevitably on the decisions made by people who are driven by entertainment and profit. And not showing the solemnity and the justice of a system. Do we really want our system of criminal justice trivialized as we’ve trivialized American politics? By … or trivialized American religion. I mean do we really want that? I don’t believe we do.

HEFFNER: Jack, as my grandchildren would say, “how come then” you and I are probably two of the very, very few people who feel this way?

LITMAN: Well I’m not sure that’s the case anymore. Certainly because the media is a powerful as it is, and they lobby a lot better than you and I can in State legislatures, many of the legislatures around the country have permitted cameras in under very limited circumstances. They are not there as liberally as they were about eight or nine years ago. Certainly not in the aftermath of the O. J. Simpson case and what people viewed as the debacle of what was occurring in that case that was influenced by the cameras. But although we are in the minority, we are a growing minority. New York, for example still doesn’t have cameras in the court. And indeed eliminated the experiment. Other states are going back to having it routinely in their courtrooms unless it is done with the consent at least of the parties, let alone with the consent of the defendant. Cameras magnify everything that’s going on. They symbolize people … the defendant doesn’t just become Mr. Smith, he becomes “The Mugger”, “The Rapist”, “The Person You Don’t Want To Deal With”. That creates such a difficulty in that person’s life that even if he happens to be acquitted, even if it’s shown in a Perry Mason manner that he is not guilty and in fact innocent, the reality is that he is stigmatized for the rest of his life. Because simply having appeared on television repeatedly that creates a stigma that cannot be dissolved.

HEFFNER: Wouldn’t much of that be resolved, and now I’m not thinking about cameras, but in the degree to which what you’ve just reported is true of all criminal cases in which the press is permitted. I’m not now talking about the eye of the camera, but in which there can be reportage, relating to what goes on in the courtroom. Wouldn’t that evil, as you’ve described it, be minimized if we did not have an adversarial system, from which you have benefited so greatly because you are such a great adversary.

LITMAN: Well, I’m not … I don’t quite understand what, what you mean to say by that. For example, I mean Great Britain has an adversarial system. Indeed we inherited ours almost from our mother country in Great Britain and yet as you know there are severe restrictions. In fact they cannot even report on what’s going on in the courtroom until the case is finished.

HEFFNER: Well, I was thinking of what you said about the French. I was thinking about a situation in which you depend much more upon judges, making their judgments and they become the investigators of the facts and the judges of the facts and the judges of guilt or innocence. Wouldn’t that, in your estimation go fairly far to eliminate and mitigate some of the evils of what happens in our system here? Forget cameras, let us talk about the reporting in the press.

LITMAN: The answer I think is … no, well … I mean about the reporting in the press, perhaps. I mean you certainly need a press open to scrutinize an area of government that is as important as the criminal justice system. And of course I’m not advocating, nor does any one who is against cameras in the courtroom advocate that people from the media and indeed from television aren’t permitted in the courtroom. They’re certainly permitted in the courtroom and they can talk about what they saw just like any member of the press can. What we’re talking about is the influence of the eye of the camera. And there’s no reason to suspect Richard, again, as a good friend of mine wrote, that “there’s no reason to suspect that a lawyer or a judge or anyone else is not more interested in what plays on the 6:00 o’clock news than doing his or her job properly”.

HEFFNER: Yes, but you see, six o’clock news had its counterpart in the morning edition of The Daily News …

LITMAN: Ahhhh …

HEFFNER: … the Daily Mirror.

LITMAN: … the difference is enormous, Richard.

HEFFNER: So you would accept …

LITMAN: … I think, I think that the media that is printed is so different from the media that visual. I mean you don’t call people a couch potato who sit on their couches reading novels. You call them a couch potato when they’re watching television because it bypasses the cognitive areas of the brain and goes straight to the emotions.

HEFFNER: I like that argument.

LITMAN: That’s why it’s so powerful. It is so powerful and it is so different. By the time we’re three or four years old in school, we’re all taught to read between the lines. We’re given questions on reading comprehension … “what does the man really mean”, “what did the lady really mean when she wrote that”? Is that irony? Does she really mean to say more? Is something left out? How would you interpret it? We don’t do that when it comes to television. We accept it blandly as if it’s absolute truth.

HEFFNER: You’re not one of those people, I trust who’s arguing that the way to deal with this problem then is to teach media, visual media literacy.

LITMAN: No, I’m not here to teach visual media literacy …

HEFFNER: You’re not arguing.

LITMAN: … because I don’t think that as a practical matter that they want to run television that way. They understand the power of the medium …

HEFFNER: They?

LITMAN: … that the medium is the message … the people who make all the profit off of television. The people who run our conglomerates. They make money because of the visual impact and the emotion impact that television has, something that does not necessarily depend upon a cognitive interpretation by the viewer. That a viewer who sits there is a couch potato and gets punched in the stomach by these repeated visual messages.

HEFFNER: Now, let me go back to this question of a different kind of system. Have you any sympathy for the notion that the adversarial system does not always bring out the best in us, does not always result in social justice.

LITMAN: Well, I don’t know about if, again, social justice is an important question. I don’t think the system of criminal justice creates social justice. But yes there are excesses, I should say, in the adversary system. And one of the excesses, defense lawyers are criticized for this … prosecutors are criticized for this. And even judges come under the critique of this. It is that people want to win. When you’re an adversary people say, you’re going to want to win at all costs. And that’s why some people say, well sleazy defense attorneys will do things; or overzealous and sleazy prosecutors will do things. Why maybe there were these cases in Illinois were fifty percent of the people who were put on death row are completely innocent. People want to win a case. If you have less of a desire of winning and more of a desire to see that justice results, then maybe some of the excesses can be cleared off. But as all-important questions in life, you have to ask yourself, “if not this, what’s the alternative?”
And if the alternative is, as it is in many countries placing the power of both to investigate and to adjudicate in the hands of professional judges, I fear that that’s worse …

HEFFNER: Is there any …

LITMAN: … and it’s also worse in this country where most of our judges are not selected, purely on the basis of merit. Judges who go to magistrate school, who view judging as an honorable profession, but judges who unfortunately and that’s not to say we don’t have some good judges, we’ve got many good judges. But most of the judges around this country are elected. And they are elected in back rooms because when you go to the polls, even when I go to the polls on occasion, you look at these … you don’t even know who they are. You know half the people in America who vote for judges don’t have the foggiest clue … just the names of the people there. They don’t know what they stand for. They don’t know who they are, but they were selected in many of the jurisdictions in America by the local Democratic Club, the local Republican Club, the local whatever club. And that’s not the way it should be. So to place justice in the hands of people who are elected and who are professional as opposed to at least the paradigm of people with equal resources, which is never the case, who are equally good and who push each other so that truth somehow or other emerges from the sparks I still think is the best system even though some of its excesses should be pared down.

HEFFNER: Truth. What has that go to do with …

LITMAN: It has to do with at least some of the facts in the case. As to the ultimate issues, they go far beyond the truth. Whether a defendant in a particular situation acted appropriately, did he objectively view the reality of such that he was facing physical danger. That is not a question of truth or not truth. That is a community judgment, a sort of a Rashomon judgment for which we need the collective conscience of an American jury. And thank god we have American juries because they view their roles very, very conscientiously and do in the main extraordinarily good work.

HEFFNER: So what you’re saying that you feel that the jury system and adversarial system, where they meet together, it works.

LITMAN: It works better than any other thing that exists on the face of the earth that I’m aware of.

HEFFNER: Except that we have one minute, and I’m just getting that signal, except that you seem to suggest that if judges were trained, if they weren’t picked politically, you seem to open a little window there that it might be possible to have an acceptable system that wasn’t based upon the adversarial nature of …

LITMAN: Well it would certainly eliminate some of the problems people face. But I still say if people do the same work repetitively, if you give a judge not just 30 cases to adjudicate, when she will look at the cases individually and carefully and make sure the rights of all the litigants are protected. But if you give the judge now 3,000 cases then the judgment becomes more of a judgment of repetition and not a judgment of individual scrutiny of a case. So you still have the problems and I still prefer a champion in each individual case and a fresh jury that can look at the facts and render not simply a verdict on “truth”, but a verdict on the community judgment of what this case means.

HEFFNER: Somebody’s holding a thing that wants me to say good-bye to you, Jack Litman. Good bye, thank you very much for joining me.

LITMAN: Thank you for having me, Richard.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

Produced by THIRTEEN    ©2014 WNET, All Rights Reserved.