Because Perceptions Can Deceive, They Need Re-Evaluation

UNDER SUBMISSION

For many years now, I have had this suspicion that things are not what they seem to be. This troubling suspicion I had stuffed in some out-of-the-way corner of my mind. How silly of me. Once an idea is in your mind, the "out of sight, out of mind" theory falters. It is just as well. A healthy skepticism that stops short of cynicism is a judge's indispensable attribute.

I have had cause recently to pull my suspicion out of its dusty corner, shake it out, and hang it like a tapestry in a more prominent spot in my modest but cluttered quarters. On sunny mornings when I crave the chirping of birds over the inexorable beat of techno rock that invariably accompanies my workout at the local gym, I jog on a variety of routes in and around my neighborhood.

On occasion, my jog takes me to a little street and a lovely Spanish-style house and its adjacent enchanted garden. In the garden, which extends from the back of the lot to the sidewalk, are windmills, ponds, fountains, gnomes, toads, toadstools and, I believe, an old edition of Shepard's citations.

The house is slightly set back from the street and occupies the other half of the lot. The entrance juts out toward the street in a short L. Three Mexican tile steps take you to the tastefully tiled front porch, which serves as an entryway to the front door. On the second step sits an extremely English bulldog guarding the house and garden with unwavering vigilance. Even though I know that he, the toads and the gnomes share the same unchanging universe, I expect him to come bounding down the steps toward me. I silently tip my hat to the artist who made such a realistic creation.

I had a cat, now deceased. My secretary, Val, asked for a photo of him. She gave the photo to an artist who painted a perfect likeness of my cat on a smooth large rock which she gave me as a birthday present. My cat lolls around my chambers and keeps me company while I work. Most of the time, I know he is not real.

Please don't scoff. I know of people who have given their pets the pathetic appearance of immortality through the services of a taxidermist. There is no comparison between a stuffed pet and a pet rock. But this bulldog looks real - I mean like a real bulldog. He even has a real collar around his neck.

So the other day I jogged to take another look at my enchanted garden and, to my horror, saw that the house was up for sale and that many of the gnomes and toads were gone. The "nothing lasts forever" perception began tugging at my heart. No comfort there.

Not wanting to dwell on the loss, I began my jog again, but then for a moment my sprits were buoyed. Out of the corner of my eye, I glimpsed the stalwart English Bulldog. I turned around to see my old friend. There he was at a new post, this time at the top of the stairs, guarding the house.

I stopped to gaze. I could almost swear the bulldog was looking at me. Did I see his head move ever so slightly? I got closer. So did the bulldog. He took a few steps forward so that he was just at the edge of the top step. He was growling and baring his teeth. I was taken aback more by surprise than fear that the bulldog could outrun me. Just moments earlier, I could have sworn he was not a real bulldog, precisely because the figurine I had seen so many times looked so real.

This unnerving experience prompted me to question my perceptions about other things, including legal issues. The other evening, I saw my friend, law professor Herbert Morris, at a lecture. He told me about how affected he was by "extraordinary rendition." I thought he was talking about Coleman Hawkins' rendition of "Body and Soul."

My perception quickly changed when I learned he was speaking about the name of a program our country uses to extradite terrorists to other countries not averse to using torture as a method of interrogation. Revelations about this program appear in the Feb. 14 edition of The New Yorker, in Jane Mayer's article "Outsourcing Terror."

It is true we live in extraordinary times that may call for what the Bush administration terms "new methods of engagement." But this method of dealing with certain suspects is not what one would perceive as conceivable in the United States, particularly when we are trying to spread democratic ideals throughout the world.

It is contrary and antithetical to the rule of law on which our democracy depends. The arguments in support of this disgraceful practice are unpersuasive. I have considered the other point of view, but my perception that this is the wrong way to bring terrorists to justice has not changed.

Nevertheless, we must guard against holding onto our perceptions of issues with unyielding tenacity. When we build barricades against the assault of other people's perceptions which challenge what we hold dear, we close the door to tolerance, reasoned debate and principled compromise - attributes that are congenial for everyone, not just elected officials and judges.

The recent concurring opinion by Justice Janice Rogers Brown in People v. Young, 2005 DJDAR 1209 (Cal. Jan. 31, 2005), challenges perceptions about whether black women are a cognizable class in jury selection. Brown's outspoken views prompted a news analysis article by Peter Blumberg in the Feb. 4 Daily Journal.

Brown wrote the opinion affirming the death penalty for the defendant, Young. What is noteworthy is the concurring opinion, also by Brown, in which she calls into question the decision in People v. Motton, 39 Cal.3d 596 (1985).

Motton holds that, for purposes of deciding bias toward groups in jury selection, black female jurors are a cognizable group. In her concurring opinion in Young, Brown expresses concern with the "endless proliferation of cognizable groups" and subgroups. She acknowledges that "Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group," but she could find no evidentiary basis for the court to have made that judicial finding in Motton.

Many assume, as did the Motton court, that black women have long been a group subject to discrimination in jury selection. But Brown's perception is far different. She posits that the Motton court creates a "pernicious stereotype" that it then pretends to destroy. Does the Motten court accurately portray black women as a group sharing a similar perspective in attitudes, ideas and experience, or does it demean that group through an unwarranted assumption?

I was struck by the differing perceptions of Brown's points expressed in Blumberg's article and elsewhere. Some argue that Brown, a black woman, is insensitive to a class that suffers discrimination, while others argue that her views reflect acute sensitivity to the issue. However one views the issue, Brown's concurring opinion sets the stage for a reasoned discussion which could lighten the weight of some perceptions that had previously been anchored in assurance.

Edward Albee's recent play, "The Goat or Who is Sylvia?" I doubt one will find on Jerry Falwell's must-see list. It's about a man who falls in love with a goat. The play serves as a metaphor for how a radical change of view or behavior upsets settled views. To some, it can be so shattering, so devastating that it permanently changes established relationships and leads to hostility and violence.

It's not easy finding common ground and often not possible. But an attempt to understand how others perceive things so differently from the way we do is a step in the direction of a more harmonious society.

A number of years ago, I attended a judicial conference at the University of Kansas. One evening, the attendees had dinner at a nearby hotel where a taxidermist convention was in progress. You might not find such a convention at the Biltmore in Los Angeles, but I swear to you there was one in Lawrence, Kansas, at the Holiday Inn. Brown will back me up on this because she and I were dinner companions.

After dessert, we strolled through the cavernous hall where the convention exhibits were displayed. There were booths where one could purchase a taxidermist kit. I bought one in the hope I could preserve my opinions that had been depublished by the Supreme Court. I recall someone hawking his services to preserve forever your pet bird, dog, horse or hamster. I wondered whether the people who buy into this creepy preservation actually perceive they are keeping their pet.

After observing a stuffed horse, Brown and I shied away from an extended conversation about taxidermy. I suspect our perceptions were the same.