David Foley

Shortly after Capturing the Friedmans came out, I was on a bus and overheard two people behind me discussing the film. “They were creeps!” they said, referring to Jesse and his father. “They were so guilty!”

I was stunned because I thought the film, though deliberately ambiguous, portrayed a clear miscarriage of justice. But I realized that the miscarriage of justice was probably clearer to someone who had studied other such cases and recognized the patterns. My fear is that, by the same token, my recent posting might be unpersuasive to people who don’t know the history and theory of the day care cases. And it occurs to me that I might be able to explain the problems with the Jesse Friedman case in a way that doesn’t require special knowledge. So:

When I began to research the Bernard Baran case, I quickly realized that there were only two possible theories of the case: either Bernard Baran had committed crimes of horrific depravity against vulnerable children or he had spent half his life in prison for something that never happened. (You might argue that a third theory is possible, one that splits the difference. Sure. You just have to make sure it’s a real theory and not a cop-out. If you find yourself saying, “Well, something must have happened,” you don’t have a theory. You have an evasion.)

All theories, of course, are provisional. A theory is good only as long as it continues to adequately explain the known facts. In this light, though, a heavy burden is on the prosecutors in the Jesse Friedman case. They have to explain:

…how it was possible for so many students to be repeatedly abused in a classroom without anyone noticing anything amiss

…why other students in the classroom claim never to have witnessed the abuse, which was supposed to have happened in “plain view”

…why some of the accusers now say that nothing happened, but describe instead intense pressure from investigators to say it did

…how it is possible to know whether any of the accusations were true if some of them were clearly fantastic (anal sex leapfrog?)

…how this case is different from other cases which, operating on the same assumptions and pursuing the same methods, have since been discredited

The theory that most adequately explains all of the above is the theory advanced by Jesse’s supporters: that Jesse and his father were victims of the same kind of hysteria-driven witch hunt that played out in the McMartin case, the Amirault case, the Kelly Michaels case, the Wenatchee case, the Little Rascals case, the…. well, you get the idea. Regarding the largest explanatory burden placed on Jesse’s defenders—why would the kids make these accusations if none of it was true?—they can simply state, “It happened all the time,” and adduce as evidence McMartin, Amirault, Michaels, Wenatchee, etc. (Another part of the explanatory burden is the guilty pleas. For those, I refer you to Jesse’s account.)

As I suggested in my post, the news accounts of the report, instead of providing solid refutation of the defense’s theory, offer random bits of information of the kind that all criminal cases throw up. So we get an uncle who now claims that Arnold Friedman confessed to him years ago; Jesse’s own trial psychiatrist calling him a “psychopathic deviant”; two sexually related infractions on Jesse’s prison record. The problem with these random bits of information is that they don’t do anything to address the difficulties I’ve outlined above. They don’t make the prosecution’s theory of the case any likelier. Indeed, they seem like diversionary flares sent up to distract people from the weaknesses of that theory.

It’s characteristic of such random bits of information that they can be hard to pin down. Who is this uncle? When did he make this revelation? Why did he wait so long to make it? Is he lying? Crazy? Misremembering? If he’s remembering accurately, what did Arnold actually say? Why? What was his state of mind? (Free answer: not good.)

The day care cases were built on just such random bits of information, information that sounded shocking, but was difficult to place in any concrete way. The Bernard Baran case began when a mother claimed that, while giving her four-year-old son a bath, she saw blood coming from his penis. The boy, she claimed, said Bernie had touched it. Quite disturbing, but on the other hand, huh? The child had not been in the day care center for several days. What could Bernie have done on Monday to make a child’s penis bleed on Thursday? For that matter, what would you actually do to a child’s penis to make it bleed? (It doesn’t help that this mother was not, um, the most trustworthy person in the world.)

Of course it’s shocking to think that Great Neck children might have been sexually abused in their after-school computer class, but how did it happen in real world terms? You’ve got to be able to at least imagine a where, when, and how. The problem with the day care cases was that the efforts made to pin any of this down produced only wilder and woolier accusations, until you ended up with anal sex leapfrog. (See page 10 of my Baran piece if you want to know how crazy things got in that case.)

I was asked the other night what draws me to these cases. I think it’s the toxic interplay of irrationality and injustice. I’ve always been fascinated by human irrationality. When I was in high school, I wrote a report on theories that Shakespeare didn’t write his plays. It changed how I viewed the world. It had never occurred to me before that people believe in spite of evidence and logic, that they marshal evidence and logic at the service of belief, the belief itself being overpowering, world-shaping, self-justifying, whether it’s the belief that the Earl of Oxford wrote Hamlet or that a monster has been loose in the local day care center. Perhaps for this reason, the district attorney’s “impartial analysis” was no more likely to find Jesse innocent than a council of Mormons would be likely, after impartial analysis, to acknowledge the golden plates as one of Joseph Smith’s more charming flights of fancy.

Such beliefs can be harmless but they can also be immensely destructive, and this is why I’ve never been happy with the epistemological shrug (can we ever really know what’s true?). It might not matter whether Shakespeare wrote his plays, but it matters that Bernard Baran spent 21 years in prison, that Jesse Friedman is still a registered sex offender, and that three of four women in Texas are still imprisoned nearly twenty years after becoming targets of the same kind of self-justifying delusions.

The district attorney’s report revealed once again how depressingly difficult it is to break through the walls of those delusions. What makes it difficult is that these delusions are ultimately about power; they reinforce and protect power, and to give them up is to yield power. The power of delusion is that it can shape not just facts but people to its will, which is how a gay day care worker can become a sex fiend and a suburban teenager a “psychopathic deviant.” Another reason that the DA’s office was unlikely to clear Jesse Friedman is that it would have deprived them of their power to tell him who he is.

“Liberty” is a word that can send you crawling for cover these days. It comes armed and angry. Here’s a radio host in Minnesota addressing the victims of gun violence: “I’m sorry that you suffered a tragedy, but you know what? Deal with it, and don’t force me to lose my liberty, which is a greater tragedy than your loss.”

It’s the “my” in that sentence that gives the word its particular curdling quality.

We should love liberty—the word, I mean. Growing up I spent a lot of time hanging out at the Liberty Tree Mall in Danvers, and everyone understood, because we were from Massachusetts, that the name referred to the famous Boston Liberty Tree around which American patriots rallied before the Revolution, just as we understood that Patriots Day commemorated Paul Revere’s Ride and the Battle of Lexington and Concord. We were used to thinking of our state as the birthplace of American liberty.

Few who use the word liberty these days would associate it with Massachusetts. Liberty is not about same-sex marriage or universal health care. Indeed liberty seems mostly opposed to both, unless you catch a particular brand of libertarian who would reject the second but accept the first on the grounds that the state should stay out of marriage altogether.

Liberty, in its current usage, has a troubled relationship with the word freedom. It entirely lops off the second half of FDR’s four freedoms—freedom from want and freedom from fear—and is fitfully suspicious of the first two—freedom of speech and freedom of worship. (If you don’t believe me, try building a mosque in liberty’s neighborhood.) But then, you know, that’s FDR, from whose tyrannical legacy the liberty-lovers have long sought to be liberated.

Perhaps FDR was trying, as Obama still tries, to put the “our” in freedom, to remind us that we cannot separate the terms in the phrase “a free society.” The reach of that “our” is what liberty seeks to limit. For this reason, liberty, even in its American Revolutionary sense, is not in and of itself a good. The two brothers who attacked Boston on Patriots Day may have had more claim to the word liberty than the people they harmed. Incoherently, pointlessly, savagely, they were striking a blow for the liberation of Chechnya from Russia’s hegemonic power or Muslims from Westerners, as we did with Britain, as the South strove to do for the North, as latter-day patriots seek to do with the tyrannical power of the federal government. Liberty, in this sense, has no obvious inherent value. It might be a good, it might not.

What matters is what happens after liberty. What matters is freedom. Who believes that the South would have been a freer place if it had managed to secure its independence from the North? Who believes that America would be a freer place if our Minnesota radio host got his way? Freedom is a project and a difficult one. It requires many hands. Perhaps the Tsarnaev brothers inadvertently left us with an image of liberty and freedom: the isolated blow for liberty followed by the many-handed multitude working together to protect and secure their freedom.

OK, so it’s late. And I’ve been spent way too much time today following the news from Connecticut. And I’ve scrolled down the Facebook feed and read one too many comments along the lines of “guns don’t kill people, people do” or “why must we exploit this tragedy by talking about guns?” And it was probably a mistake to read in the Times the latest from Ross Douthat, with whom I’ve taken issue before.

But really.

Douthat has taken upon himself to understand the tragedy for us. Turns out it’s a matter of evil and suffering. Which are mysteries. He cites The Brothers Karamazov (a novel which, you’ll be glad to learn, is “famous”). He thinks that Ivan Karamazov might actually have a point when he accepts “that the Christian story of free will leading to suffering and then eventually redemption might be true, but rejects its Author anyway, on the grounds that the price of our freedom is too high.” (The price of freedom, in this case, seems to be 20 dead children.) He reminds us, at this festive season, that behind the Christmas story lie “[t]he rage of Herod” and “the slaughtered innocents of Bethlehem, and the myrrh that prepares bodies for the grave. The cross looms behind the stable — the shadow of violence, agony and death.” And these great and awful mysteries, he’s willing to allow, test our faith.

The last time I took issue with Douthat, I noted the “circularity” of his mind-set, the way “a certain type of mind veers helplessly towards systems—self-enclosed, self-perpetuating systems.” And the system is on full display here. He seems quite pleased that he has come to this understanding for us, that he has been able to construct from the horror his tone poem on the mystery of evil.

And I’m willing to believe the thing is mysterious. It’s occurred to me more than once today that we should understand these tragedies better by now. The pattern is familiar. We should have some way of analyzing it, of being able to name the pathologies that produce these acts if not to prevent them from happening. But, no matter how many times they happen, something about them remains opaque.

So, yes, there are mysteries here, but cosmic they’re not.

Because there are facts. The rate of gun deaths per 100,000 people in the U.S. (9.0) makes us twelfth in the world, ahead of South Africa but behind Montenegro. Our murder rate (4.2) is comfortably small compared to Brazil (21.0) or, God forbid, Honduras (91.6). But it’s several times the rate of other developed democracies: France (1.1), Italy (0.9), Japan (0.3). We’re also behind Morocco (1.4), Lebanon (2.2), and Afghanistan (2.4).

The most obvious reason for this is the unrestricted availability of guns. There are more than 200 million privately owned guns in America, and many of them are capable of such rapid, repeated deadly force as most of us, short of an alien invasion, will never need. So that’s part of it. And maybe, too, we should consider the political climate of the past several years in which the collectivist impulse was consistently construed as something the other guy was trying to take from you. Along with your guns.

But whatever. All those things can be discussed. Indeed they need to be discussed. And to shrug Friday’s tragedy off as part of God’s unfathomable ways is, to quote myself again, “another example of what [religion] can sometimes do to your moral sense.”

In just a few weeks, I’ll be facing a cohort of new students who will be tasked to learn “writing the essay” from me. Here’s an early lesson for them: Tell me, future students, what’s wrong with the following statement: “And the fight we are in here, make no mistake about it, is a fight of individualism versus collectivism.” If you guessed that this Paul Ryan quote, which appears in two of yesterday’s opinion articles in the Times, is a meaningless and therefore useless binary, then you’ve got a step up on most of your fellow students. You also appear to have a step up on many of your fellow Americans—and, disturbingly, on one of our candidates for Vice President.

One of the problems with binaries is that words have a tendency not to stay put. (“They shuffle, they change,” says Virginia Woolf.) What do you mean by individualism? The Marlboro Man? Lady Gaga? Charles Lindbergh? Mussolini? Each a fair prototype of a different kind of individualism. By collectivism do you have in mind the Politburo? Or Chinese re-education camps? Or the public garden on Avenue B? Or the evangelical church on Avenue A? Or maybe, since individualism is often yoked to the pioneer spirit, the wagon train? Mormons? Here’s the good news: you don’t have to choose. You can (and probably should) mean all these things. But the fact that you don’t have to choose means you have to complicate your thinking.

You, future student, will try to slip this responsibility. When faced with complicating the individualism/collectivism binary you will say, “It’s both.” Or you will say, “You need to strike a balance.” And I will try to force you to describe what that balance might look like or, in the words of one of my colleagues, “what makes striking that balance hard.”

One of the things that can make Obama seem at times ill-suited to his job is that his mind seems instinctively to work that way. He’s interested in complexity. For this he gets accused of being professorial by those who, let’s say, prefer to keep it simple. In particular, he often gets himself in trouble when he tries to describe what the individual/collective balance might look like. In 2008 Joe the Plumber became fleetingly famous objecting to something Obama said about “spreading the wealth around,” though this was not an unreasonable way of addressing the fact that, for the last few decades, the upper percentiles of earners have been claiming a larger and larger share of the nation’s wealth. This year the “I built that” signs at Romney rallies are responding to Obama’s grammatically maladroit but factually correct assertion that no small business owner creates that business entirely on his or her own, without help from the collective. (The fact that Obama gave one of his more eloquent descriptions of the individual/collective dynamic while Paul Ryan sat in the audience looking bitch-slapped is adding some dramatic backstory to the race.)

Now, future student, you will bring your essay into conference with me, feeling very proud of it. And I’ll start raising objections: “You’ve said that this binary is meaningless and useless. But doesn’t that depend on what you mean by meaning and use?” Because of course Ryan’s statement is not actually meaningless. It may not have much meaning for policy prescription, but it has meaning as narrative. The very way it’s phrased, the sense of an epic battle fought for the highest of stakes, reveals its essentially narrative intent.

We’re all cynical handicappers of the horse race these days, and we think we know that word “narrative.” We know the importance of seizing the narrative, creating it, running it. But narratives are important for more than that. “We tell ourselves stories in order to live,” Joan Didion famously said. Stories create meaning, and that mysterious phrase—to create meaning—is the opposite of cynicism. It even hints at the basis of an ethical system, the task of creating meaning.

This is the reason, I think, that Ryan is often described as, and indeed appears to be, sincere, honorable, likeable, smart. It sets him apart from the Gingriches and the Bachmanns whose narratives ride (and often jump) the shark of opportunism. They don’t create meaning; they trash it. Ryan is, or appears to be, a true believer, and most of our narratives are in some way about belief.

I have a close relative who’s something of a star of the Pentecostal preaching circuit, and if you want to study the relationship between narrative and belief, you could do worse than bone up on Pentecostalism. I believe my relative to be a good man, with a good heart, but he’s also a dangerous man, at least to the extent that any man becomes dangerous at the moment his narrative stops being adequate to the world he encounters.

There’s been a great deal of cynicism and opportunism in the opposition to Obama, of the Mitch McConnell “our goal is to make him a one-term president” stripe. There’s been a lot of what may or may not be racism, but is certainly terror of the difference and change that a black man in the White House represents. But a large part of the problem is that we’re a nation of true believers. If the true believers at times seem to live in a zone that’s not so much information-free as information-impermeable, that has to do with the power of narrative, its oilskin toughness. In 2010, many of those true believers ended up in Congress, where they’ve spent two years failing to recognize that the world they’re encountering renders their narratives inadequate, with disastrous results.

It will be interesting to see what happens to Paul Ryan’s narrative. There are already signs that it’s being reshaped to meet either the reality of the world he’s encountering or the reality of a national campaign. But he actually doesn’t interest me all that much. I’m more interested in you, future student, and maybe I’m more interested in you as future citizen. If you take nothing else away from your four years at college, learn to recognize the moment when your narratives are no longer adequate to the world.