People really ought to try simple thinking occasionally. Most educated people these days seem to think wisdom is to be found in precedents, in the expressed “deep thoughts” of authorities. As a person who admires historical writers and philosophers, I myself often quote them and wonder what these wise people would have had to say about contemporary American society. Unfortunately, when you rely entirely on precedent, you often miss the contemporary truth.

Exegesis

American criminal law is exegetical. It relies on precedent. But precedents are ancient history. And, as James Joyce wrote 100 years ago, “History is a nightmare from which I am trying to awake.”

American law, though, is steeped in historical nightmares, and I do not mean the U.S. Constitution and Bill of Rights (which broke radically with the past); I mean the nightmare of English common law and appeals court precedents.

Privacy Rights

History does not provide us with precedents for the invasion of privacy by technological means.

It is a mistake to search for historical precedents for commercially broadcast trials in the past. It is also a mistake to assume that the Constitution’s “right to a public trial” is the same as the American public’s right to observe every trial conducted in every state court. And this Constitutional right certainly cannot be construed to mean that a private corporation has the right to exploit a personal tragedy or state criminal trial for profit.

TruTV is broadcasting a six-week-old Colorado murder trial. An 18-year-old named Andy Galek was tried in July, 2009, for the 2008 stabbing murder of a friend’s father. For those of you who found this blog by searching for the “Galek verdict,” here’s the TruTV “spoiler”: Found Guilty.

Galek claimed he was under the influence of alcohol and could not remember committing the crime. His attorney attempted to show “reasonable doubt” by pointing to the absence of physical evidence linking the young Galek to the crime and even by attempting to smear the good reputation of the victim’s wife and son.

• Sidebar: I know I can be accused of hypocrisy here. To date, this blog has relied on TruTV’s broadcasts to exemplify the issues that interest me. I have also argued for live broadcasts of trials (civil, as well as criminal) as a way of exposing the justice system’s inherent flaws. My only excuse is that writers have no choice but to exploit reality every time they put fingertips to keyboard.

Let’s step back a moment from the sensationalism and “entertainment” aspects of this murder.

Ask yourself this:

• If you woke up one night when your husband shouted, “Andy! Why did you hit me?” and then you jumped out of bed and followed “Andy” to the basement room where he was spending the night, how would you cope with having your tearful testimony broadcast nationwide, including a cruel cross-examination in which the murderer’s lawyer hinted that you were lying?
• If you got drunk with a friend one night and when you sobered up discovered that your friend had murdered your father, how would you cope with having your unwilling testimony dissected by paid legal commentators on national, cable TV? (I found the criticism of the witness’s hair style particularly inappropriate.)

Witnesses to a crime are compelled to testify in open court. But should they be compelled to appear on commercial TV?

If you think about this—without searching for wisdom between the lines of an ancient text like a Medieval monk—you have to conclude that innocent bystanders should not be exposed to character defamation in public like this. (The defendant certainly has a right to cast doubt on every witness’s testimony, but that isn’t the same thing as becoming an accidental TruTV reality-show guest.)

How Did the Galek Jury Respond?

“Guilty of first-degree murder.”

Galek’s attorney surely would have served him better if he had fought for the “lesser and included charge” of second-degree murder or sought “jury nullification” by emphasizing the lack of motive and lack of premeditation.

• Sidebar: TruTV’s legal commentators seem to be sincerely devoted to justice. Like writers, lawyers have no choice but to exploit tragedy in order to practice their profession, even on TV.