Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘due process

American Vandal

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I have just watched the first season* of “American Vandal”—another proof that it is possible to do something original and worth watching even today, and that there is no need to just dust of every old franchise**, hoping that the “brand value” outweighs the lack of quality and originality.

*Whether this terminology reflects reality remains to be seen. From the closed character, I suspect that the series will remain at one season, and considering its shortness, it might be better labeled as a “mini-series”.

**Something I have spoken negatively of in the past, e.g. in [1].

It is not the best made series ever—not even close. However, it does bring something new to the table, and it does so while giving food for thought. This most notably in the area of due process, but also concerning privacy, the benefits and dangers of social media, press ethics, and organizations sweeping their problems under the rug—all areas where I have considerable concerns about current developments. (Cf. a number of older posts.) Some of these areas are discussed below.

!!!Here be spoilers!!!

A particular disturbing part, obviously, is how one character, Dylan, was originally expelled from school based on scant* evidence, by an entity that served as judge, jury, and prosecutor in one, and how his “conviction” was almost a foregone conclusion based on his previous behavior**. While this example is fictional, it does reflect common practices in the U.S., where there, for instance, have been cases of colleges expelling people under similar circumstances, often in word-against-word situations, using “preponderance of evidence” (or another too weak standard). Considering the effects of a college*** expulsion and the damage than can accrue through e.g. social media and reputation damage in today’s world, the consequences are potentially horrifying—often far worse than the alleged crime or even “crime”. When it comes to actual crimes****, it is vital that proceedings follow a level of due process, rights of the accused, whatnot, that is comparable to that of a real criminal trial—better yet, leave this to the actual justice system, and then make decisions, e.g. regarding expulsions, based on what the results of the justice system were. Even when no crime is present (e.g. with a pure behavioral matter), it is vital that the (real or virtual) roles of judge, jury, and prosecutor are sufficiently separated from each other, and that the “accused” is given sufficient opportunity to defend himself.

*The only evidence against him that was not, at best, circumstantial was a testimony by a witness, which was offset by conflicting testimony by an alibi giver. Neither witness had any obviously superior credibility.

**Dylan was a highly problematic student, and I do not rule out that his past behavior might have been enough for an expulsion. However, he was, as eventually transpired, innocent of the vandalism for which he actually was expelled.

***However, note that the series deals with a high-school expulsion. This is bad enough, but less disastrous both because there are more opportunities to gain back ground and (usually far, far) less money invested at the particular school. To boot, people who are expelled from high-school are rarely among those likely to do well in college, implying that the career effect is considerably smaller: We are still typically talking unemployment and/or low-wage, dead-end jobs, considering the low value of a modern high-school diploma.

****As was the case here, specifically the spray painting of 27 cars with stylized penises.

A somewhat tricky question in the series is that of false accusations—paralleling the considerable problems in the real world with especially, rape, child-abuse, and domestic-violence accusations: While Dylan was originally expelled and facing (real) criminal and/or civil charges*, the “witness for the prosecution”**, who seemed*** to have lied outright, did not face such repercussions—his sole fear being a beating from Dylan. It is possible that any attempt at action against him would eventually have failed due to problems of proving intent; however, it appears that an attempt was not even made. Similarly, in the real world, women who make false rape accusations are often let go with a slap on the wrist, while their victims could have faced many years in jail—and often see their lives ruined even when acquitted. Under such circumstances, there is a severe risk that the system is abused e.g. to maliciously hurt personal enemies who have not committed a crime.

*He was proved innocent by video evidence before the real trial in the real justice system started.

**Whether he should be considered the accuser or just a witness can be disputed, but from the details of the show, the difference is likely uninteresting for the current discussion. (However, in most other cases, witness and accuser are quite different things.)

***At least for some time: A later hypothesis involved a suspect with some similarity in looks, and assuming, as was claimed, that the perpetrator wore a hood, an honest mistake is conceivable. However, this hypothesis only arose some time after the “acquittal”, was not necessarily presented to the school, and certainly remained a hypothesis. To boot, the witness had originally spoken with considerable certainty. (I do not recall the exact formulations used, but it was on the level of “I saw Dylan do it”—not e.g. “I saw who did it; he looked like Dylan”.

As a counter-point, we have the question of witness pressure: The “witness for the prosecution” later spoke of having been under a lot of pressure to say the right things. If that was the case, and if he modified his statements to comply with the pressure, someone of his age should be seen in a more forgiving light. However, we then have to condemn the proceedings even more: Witnesses are unreliable enough as it is and when they additionally face pressure to give the “right” answers, testimony is worth very little. It is vital that witnesses are induced to say what they actually remember—not directly or indirectly moved to say what the prosecution wants to hear. Here we again see the importance of dividing the roles of the “court” appropriately, so that the prosecution is neither judge nor jury. Further, where there is a prosecutor to exert pressure on witnesses, there must be a defender to press back. In this specific case, we had the additional complication that the witness was another student, and therefore in a dependent role visa vi the school staff making the decisions, implying that thoughts like “I must keep Mrs. X happy, or she might give me a poor grade!” could have crossed his mind. Such problems could have been alleviated by hiring external specialists to handle the investigation and decision. Consider as comparison a real trial where a witness is employed as a house-keeper by the DA handling the case…

The problem of organizations sweeping their problems under the rug, has probably not featured in my previous writings to any notable degree. A few words on the topic*: There are many types of problems that can arise when there is too little distance, objectivity, self-criticism, whatnot, present in how an organization deals with complaints and internal problems. The most obvious is that it might be so keen on preserving its imagine towards the outside world that it deliberately does not address problems in the appropriate manner. However, we also have to consider constellations like a superior receiving a complaint about an employee with whom he has developed a friendship, an investigative board containing people with personal ties, a biased treatment due to the feeling that that the target of a complaint is “one of us” and the complainer is “one of them”, the target of the complaint being able to influence the proceedings through inside connections (e.g. through giving someone false verbal information that the complainer never even knows of, let alone has an opportunity to refute), etc.

*Since I am filling a deficit, I will remain mostly abstract. If we look at events in the series, I can point to e.g. the illegal failure to upload certain complaint acts to a public server, an attempt to shut-down an independent investigation/documentary, when it threatened to put the school and/or some staff members in a poor light, suspensions (detentions?) being handed out for potentially (depending on interpretation) having critized the principal, …

A particular disastrous example from my personal experiences, where problems were almost guaranteed and remedies highly unlikely due to a massive conflict of interest: Being faced with a blatant breach of contract, I simultaneously sent a bill to the perpetrator and contacted its trade association with a complaint and a request for intervention. In a horribly misguided system, this trade association on the one hand provided arbitration, certifications of quality, and similar, on the other legal service to its members. The result was that the perpetrator took the bill, sent it to the legal branch of the trade association, which immediately gave the opinion that the bill was void and all related claims baseless*—and thereby tied the hands of the rest of the organization with regard to my complaint and any chance of intervention—if another branch had given support to my complaint, it could have caused severe credibility problems for the legal branch, had I taken legal action to receive payment.

*Beware that such “opinions”, by their very nature, have no actual legal value, give little information on the true estimation of the involved lawyers, and cannot, seeing that the lawyers at this juncture only know a fraction of the information, be a complete legal evaluation. To act in his client’s best interest, a lawyer will have to officially side with said client in a near blanket manner, even when the facts at hand, relevant law, and his actual opinion would go in the other direction. There are cases where the situation is so clear, that he is forced to chose another first official stance than a (real or metaphorical) “not guilty”; however, this is rare. The result is that irrespective of how well or poorly founded the complaining party’s claims are, the legal branch would have started with a blanket rejection, and the hands of the trade association would be tied. The complaining party is, almost by necessity, wasting time by approaching such a trade association.

Correspondingly, any organization who wants its complaint management to be taken seriously, must take steps to minimize such problems (a complete prevention is likely not possible). This could include e.g. making sure that there is a special complaints branch, that supervisors/investigators/whatnot with too strong ties to the target of the complaint recuse themselves, that external helpers are brought in (especially when larger amounts of money are concerned, the heads of the organization are involved, or the matter is otherwise unusually important), … While the presumption of innocence must be preserved in terms of treatment and consequences, the potential guilt must also be kept very clearly in mind during any investigation.

(A more specialized post on the misbehavior of German governmental institutions and their blanket rejection of any type of criticism might follow, especially with an eye on the IRS, the incompetence of which is currently again costing me a load of time. It appears to be a universal law that the more incompetent an organization is, the less willing it is to accept criticism.)

A few words on the final scenes of the series:
After his acquittal, Dylan goes through a brief high and then faces repeated disappointments, including that a very hostile* teacher, who had pushed heavily against him, and even (very incorrectly) attributed the crime as directed mainly against her, personally, failed to give the type of apology that he had pictured. He now misguidedly does commit an act of vandalism against her, by painting a penis on her drive-way.

*Her hostility is not unreasonable, considering their previous history.

It follows a brief sequence on how the expectations of others, the roles we have been pushed into, and similar, can lead to poor decisions, even deliberate attempts to fulfill negative expectations—Dylan thought that others saw him as a villain and correspondingly behaved like a villain. While this is likely only partially true, there are at least two thought-worthy aspects to this issue. Firstly, that we should be careful with our expectations of others and the effects they can, at least sometimes, have. Secondly, that we should beware of potential influence from others through expectations, that we should deliberately counter such expectations (at least when negative), and that we ultimately must take responsibility for our own actions, even if they arose under such influence.

In a disturbing parallel to a recently discussed real case, it is claimed that the police brought him away in handcuffs in the middle of the night, over something as trivial* as a this. Now, I do not know whether this could have happened in the real world; however, I re-iterate how important it is that law enforcement act in proportion to the crime. Not only could this easily have waited until the following morning, it might even have been prudent to just ask him to come to the station at a given time. While I do not agree with the practice of some law enforcements** of letting all crimes below a certain level just slide, this is one case where the main issue might even be considered a civil matter between the two: He pays damages, apologizes, promises to never do it again, and we call it a day.

*To be contrasted with the original vandalism, were a figure of a hundred thousand dollars of damages was mentioned. In the act he actually committed, the cost of cleaning or repairing the drive-way is unlikely to exceed a few hundred dollars, possibly being far smaller.

**Including, in my impression, the German police.

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Written by michaeleriksson

May 30, 2018 at 5:26 am