How maintaining scientific justice is like establishing and maintaining a path in the darkest jungle

One of my all time favorite books is Heart of Darkness written by Joseph Conrad. It is a short read but the combination of the first person narrative and the vivid imagery makes it unforgettable. The book is set in colonial times in Africa. The main character is a sailor by the name of Marlow. Marlow is a very complicated and conflicted man who is a keen observer of others and human nature. He has accepted a task to travel way up the Congo River in search of a fellow white man named Kurtz who is reputed to be an idealistic man of great abilities and a man that no white man has seen for some time. To achieve his task, Marlow accepts a job as a riverboat captain with the Company, a Belgian concern organized to trade in the Congo. As he travels to Africa and then up the Congo, Marlow encounters widespread inefficiency and brutality in the Company’s stations. The indigenous inhabitants of the region had been forced into the Company’s service, and they suffered terribly from overwork and ill treatment at the hands of the Company’s agents.

One of my favorite passages reads:

Going up that river was like travelling back to the earliest beginnings of the world, when vegetation rioted on the earth and the big trees were kings. An empty stream, a great silence, an impenetrable forest. The air was warm, thick, heavy, sluggish. There was no joy in the brilliance of sunshine. The long stretches of the waterway ran on, deserted, into the gloom of overshadowed distances. On silvery sandbanks hippos and alligators sunned themselves side by side. The broadening waters flowed through a mob of wooded islands; you lost your way on that river as you would in a desert, and butted all day long against shoals, trying to find the channel, till you thought yourself bewitched and cut off forever from everything you had known once -somewhere- far away in another existence perhaps. There were moments when one’s past came back to one, as it will sometimes when you have not a moment to spare to yourself; but it came in the shape of an unrestful and noisy dream, remembered with wonder amongst the overwhelming realities of this strange world of plants, and water, and silence. And this stillness of life did not in the least resemble a peace. It was the stillness of an implacable force brooding over an inscrutable intention. It looked at you with a vengeful aspect.

It is this image of the untamed and wild jungle that sticks with me.

About once a week, I get an email from a trial attorney who is struggling, really struggling in his or her legitimate and honorable attempts to demand that in a courtroom that science not simply be accepted based merely upon faith with no examination. They ask me how I deal with it. I really like these emails. I take a lot of time responding to each of them and following up later with their author to see his or her progress.

It is sad that maintaining scientific justice in the courtroom is like establishing and maintaining a path in the darkest of jungles. You have to really be a trail blazer in some jurisdictions and struggle against great odds. And once it is established at great, great effort, it has to be maintained or the jungle will grow back and no path will exist.

I thought with this post, I would share with one one of my responses to just such an email.

Dear Attorney X,

You are a trail blazer. The problem with being a trail blazer is that there is no trail before you. There is just thickets, briars, and what seems to be unapproachable and insurmountable terrain. I remember quite vividly about six years ago when I started down this path of actually making the government live up to their scientific burden. I became the object of scorn and ridicule. I was called a moron on the record by the judge in front of my client and a courtroom full of people. Colleagues said that I was making them all look bad. Everyone laughed. To be frank, I felt like quitting so many days. I, like you, had to overcome the inertia of “no one else” arguments as in no one else does this why are you. I, like you, had to do with total ignorance and unreasonable faith and belief in a process and an institution (the crime laboratory) that they knew nothing about, and yet gave unbelievable and unfathomable total trust. It was like a religion to the DAs and even more so to the judges. And just like a religion, getting people to examine their long and strongly held beliefs was a nearly impossible tasks. To a degree, I can imagine this was what it was like with Copernicus or Galileo and the Holy Sea.

The truth pushes us on. The truth is independent of our desires and our hopes. The truth is that the science matters. In most cases the science is an essential element of the crime after all. It is the funny thing about doing the right thing. The right thing is so frequently very very difficult in the beginning. In the beginning, there is such a huge inertia against it when the vast majority point and laugh. However, criminal law litigation is like science; in the long enough term both are self-correcting. We are seeing a great awakening all across the US. You are an essential part of it. Keep it up. Do the right thing. There is only the illusion of choice. In the long term, the great thing about being a trail blazer is that others come after the path you made and society is better. This is what we call justice.

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