All Too Human

One evening in 1980, I nearly killed two men. On my way back to work after a dinner break, I turned left at an intersection, directly in the path of an oncoming motorcycle. Despite its headlight, I never saw the cycle until it seemed to materialize 10 feet in front of my car.

We collided head-on with such force that my Chevy Nova was a total loss. The two riders were sent flying over my hood—in slow motion, it seemed. One fractured his skull on a curb. That first night, the doctors thought he would die. The other, luckier one suffered a concussion and a chipped tooth.

The resolution might have been as straightforward as these facts, had people trusted each other to do the right thing. The police ticketed me at the scene, and I paid the fine the next day. I had excellent insurance that easily covered the $50,000 for the riders’ medical expenses and the motorcycle. But...

A lawyer convinced the victims they would get more if they sued both my employer and me. And I discovered that simple facts take on a complex life of their own when they enter the legal system.

As the case progressed, the circumstances of the accident became clouded by other facts. A state “contributory negligence” law dictated that, if the victims of an accident could be found partially responsible, any damages they received would be reduced proportionately. The two motorcyclists, it turned out, had been drinking and smoking dope. Witnesses had seen them racing through the neighborhood, yelling at people. Neither had worn a helmet. Following the law, therefore, a court might have awarded the two boys absolutely nothing—even though nothing could change the fact that I caused the accident.

Just before depositions were taken, the insurance company lawyer took me to the scene of the wreck. As he began recounting the details, I realized he was subtly attempting to influence my memories so my testimony would reflect most favorably upon our case. It seemed literally and figuratively unreal. I felt far removed from the actual events of that spring evening nearly a year before.

In the end, everything worked out as well as it could have. The motorcycle riders recovered from their injuries and settled with my insurer out of court. But the experience taught me that the system is first about resolving disputes and only secondarily about finding the truth.

I concluded that the courts are like hospitals: a societal necessity but a place to avoid if possible. And I came to appreciate a lyric from a Billy Bragg song: “This ain’t a court of justice, son; this is a court of law.”

I kept thinking of that song, “Rotting on Demand,” during the month-long judicial wrangle that followed our presidential election. There, too, it seemed that the law swallowed up the actual events until the truth became unknowable and almost irrelevant.

The pertinent facts were not that complicated. Floridians vote (though probably not for much longer) with punch ballots and card readers. The equipment sometimes makes clean punches difficult, and the machines invariably fail to count some properly punched ballots. In this case, the machines’ margin of error was larger than the percentage of votes that separated Gore from Bush.

Because the machines are fallible, Florida law allows for manual recounts. Most election experts, as well as the manufacturer of the punch machines, agree that hand counts are the most accurate determinant of the voting result.

In conducting hand recounts, Florida’s Legislature leaves it to local canvassing boards to examine the ballots. If they can clearly determine the voter’s intent, the ballot counts.

Had both partisan camps acted in good faith and been willing to trust the system, a just solution might have been possible. Immediately following the machine recount, they could have commenced a statewide hand count of ballots the machines had failed to read as votes. In a matter of a few days, we would have known with the greatest degree of certainty who won the vote.

Instead, each party used the law as an instrument for winning rather than for discovering the truth. The Democrats first applied, as was their legal right, for hand recounts—but only in three heavily Democratic counties. The Republicans, fearing the results, sought to block any hand recounts anywhere. And, just in case, they hoped to erect enough legal hurdles so that Florida could not complete a hand count in time to meet the Electoral College deadline.

It surprised no one that each party behaved, well, like partisans. But many seemed astonished that the U.S. Supreme Court, the unavoidable final arbiter, behaved not much differently from the party propagandists.

At last week’s hearing, Justice Antonin Scalia suggested that Florida’s “undervotes” could not legally be counted because they had never been counted before—conveniently ignoring the fact that no statewide election had been close enough before to create a need for such counting. Then the justices argued over whether allowing counties to apply differing standards to determine a voter’s intent violated the 14th Amendment’s “equal protection” clause.