The Elephant in the Room

“The elephant in the room” is an English metaphorical idiom for an obvious truth that is either being ignored or going unaddressed. It is based on the idea that an elephant in a room would be impossible to overlook.

Indeed, one would think so, but that did not stop two of three judges on a First Circuit Court of Appeals panel from trying.

The question before the three appellate judges was whether or not Dzhokhar Tsarnaev could get a fair trial in Boston due to overwhelming local prejudice. In denying the defense bid to move the trial, the majority of two judges employed a tactic I recognized immediately from my years in the corporate world.

While reading the opening statements of their opinion denying the request, I was suddenly transported back to the human resource offices of a former long-time employer. The mix of anxiety and outrage I experienced was again palpable.

Some things take a long time to heal.

I learned a lot in those years about the way in which companies circle the wagons in order to protect abusive managers from the consequences of their abusive behavior toward targeted subordinates. I saw again and again how they avoid taking action to address employee grievances while sounding all the while like they are doing everything in their power to ensure fairness, equality and respect in the workplace.

The Bible talks about this kind of behavior:

“For the ruthless will come to an end and the scorner will be finished, indeed all who are intent on doing evil will be cut off; who cause a person to be indicted by a word, and ensnare him who adjudicates at the gate, and defraud the one in the right with meaningless arguments.” Isaiah 29: 20-21

The following is taken from an article by Andy Wang entitled “The First Circuit’s Mandamus Ruling in U.S. v. Tsarnaev.” Here’s where the “defrauding the one in the right with meaningless arguments” occurred:

The majority begins by noting that the bid for a writ of mandamus is denied because the “petitioner has not met the well-established standards for such relief.” It then proceeds to point out that “any high-profile case will receive significant media attention” and that this will result in jurors who possess knowledge about the case. But, as the majority explains, knowledge does not equate to “disqualifying prejudice,” and because of this distinction, the mere fact that most Bostonians have heard about Tsarnaev is not prejudicial.

OK – let’s stop right there.

The proverbial “elephant in the room” is not the fact that most, if not all persons in Boston and the surrounding area have heard of Tsarnaev and are familiar with his alleged crimes. It is, in fact, insulting to the intelligence and experience of the defense attorneys bringing the motion to imply that they do not understand this.

It is important to note the following:

1. Both Lynch and Howard know at the time they are writing this opinion that this is not the relevant issue at hand.
2. Both Lynch and Howard know the defense attorneys will read this opinion and know that the judges know this is not the relevant issue at hand.

See how this works?

Defrauding and avoiding the “elephant in the room” can be said to occur when the one deciding an issue gives an answer that narrowly focuses on one true but not largely relevant factor of a situation while at the same time being careful to avoid acknowledging an understanding of or consideration for the real facts of the situation. It is deliberate. And when someone’s life is at stake as in a death penalty case, I believe it is also criminal.

The only other conclusion one could make is that Chief Judge Lynch and Judge Howard possess neither the intelligence nor the understanding to grasp the relevant facts of the issue that was brought before them. As this is quite doubtful, the only other possibility lies in the definition and practice of defrauding the one in the right with meaningless arguments.

It happens all the time.

What kind of person would put on a judge’s robe and do such a thing? Consider this from “The Sociopath Next Door” by Martha Stout Ph.D:

Sociopaths, people with no intervening sense of obligation based in attachments to others, typically devote their lives to interpersonal games, to “winning,” to domination for the sake of domination. The rest of us, who do possess conscience, may be able to understand this motivational scheme conceptually, but when we see it in real life, its contours are so alien that we often fail to “see” it at all.

One of the more striking characteristics of good people is that they are almost never completely sure they are right. Good people question themselves constantly, reflexively, and subject their decisions and actions to the exacting scrutiny of an intervening sense of obligation rooted in their attachments to other people. The self-questioning of conscience seldom admits absolute certainty into the mind, and even when it does, certainty feels treacherous to us, as if it may trick us into punishing someone unjustly, or performing some other unconscionable act. Even legally, we speak of “beyond a reasonable doubt” rather than of complete certainty.

Probably there are no absolutely good human beings and no utterly bad ones. However – psychologically speaking, there definitely are people who possess an intervening sense of constraint based in emotional attachments, and other people who have no such sense. And to fail to understand this is to place people of conscience in danger.

I am a person of conscience. I have, on more than one occasion, questioned my own beliefs in the case of the Boston Marathon bombing. Those beliefs have changed, have evolved over time as more evidence has become public. Evidence, not emotion, and certainly not awkwardly-timed confessions or poorly-worded opening statements, has been and continues to be what guides and forms my own opinions in the case of Dzhokhar Tsarnaev.

Judge Juan Torruella is a hero. Unlike his colleagues, Judge Torruella compares apples to apples, likening the case of Timothy McVeigh to the Boston Marathon bombing when those judges wishing to defraud the defense bizarrely compared the Boston Marathon bombing to the white-collar crimes trial of Enron executive Jeffrey Skilling.

In addition, and most importantly, Judge Torruella not only names the elephant in the room, he hops aboard its back and rides it through town. His 45-page blistering dissent accurately addresses the issue of bias by focusing with laser-like attention on the ugly and hateful statements made by the potential jurors on their questionnaires and on the number of potential jurors who made such statements and/or expressed their belief that the accused is guilty.

This was the relevant topic that Judges Lynch and Howard refused to acknowledge, and to their shame, I might add.

Judge Torruella’s dissent concludes as follows:

What makes both America and Boston strong is that we guarantee fundamental constitutional rights to even those who have caused us the greatest harm. Rather than convicting Tsarnaev and possibly sentencing him to death based on trial-by-media and raw emotion, we must put our emotions aside and proceed in a rational manner. This includes guaranteeing that Tsarnaev is given a fair trial… The actions of the district court and the majority of this court fall short of these ideals… Because this court refuses to grant this relief, I strongly dissent.

For that matter, so do I.

3 thoughts on “The Elephant in the Room”

  1. I cannot imagine the level of disgust and disdain Judge Torruella must privately wrestle with when he considers how his fellow judges handled this life-or-death issue.

  2. Well said Lynn!! Other than Judge Torruella, who is undoubtedly a wise and good man, it seems that most in the “justice” system are plainly sociopaths who honestly don’t give a hoot about other people, those people who are in dire trouble and should be able to rely on the justice system to be fair, unbiased and truthful, but unfortunately that’s not the way it is. I now see the DOJ as just another club for the 1% with their political and personal motives, and if you’re not part of that, God help you. It’s so beyond shameful I don’t know what to call it.
    “What makes both America and Boston strong is that we guarantee fundamental constitutional rights to even those who have caused us the greatest harm”. This sounds good, but it’s not true, as we have all seen in the case of Dzhokhar Tsarnaev. Neither America or Boston are strong at all. Strength comes from goodness, decency, compassion, mercy and justice which seems all but gone from American society. Let’s pray things improve.

  3. In this blog your thoughts are my thoughts Lynn. Beautifully written. Emotionally, mentally and spiritually well expressed. You are so right. I feel Torruella was the only one with a head and heart and spoke the truth. He also said 40 years on bench and he has never seen a case that didn’t have a chance at a fair trial such as this one. He’s a man of wisdom..truth…fairness and one that surely deserves respect from me. Great writing as always Lynn!! Loving the title. Fits the blog perfectly! Another breathtaking blog!!!👍

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