The Ghost Lives

Jed Rakoff '64

The 1960 edition of the Wentworth and Flexner Dictionary of American Slang defined "bull session" as "[a]n informal and often lengthy conversation, frequently idle or boastful, on a variety of topical or personal subjects, especially among a group of male students." (By 1986, in keeping with grade inflation and political correctness, the definition had improved to "[a] discussion, especially one among good companions passing time idly but investigating important topics.") Although Swarthmore in the early 1960s was filled with political activity-the historical significance of which becomes more evident with each reunion-what I most remember, not in specifics but in importance, were the nightly bull sessions, beginning no earlier than 11 p.m. (when the possibility of completing the next day's reading assignments had faded beyond hope) and ending no earlier than 2 a.m. (when the need for sustenance from the all-night diner on Baltimore Pike overrode the Search for Truth).

The Search for Truth is, of course, the purpose of bull sessions, as any college student with intellectual pretensions would be happy to tell you. As captured by that great midcentury philosopher and mathematician Tom Lehrer, they consist of:

Hearts full of youth,
Hearts full of truth,
Six parts gin and one part vermouth.

But at Swarthmore, we could not escape that other dreaded dimension: values, especially social values. It was not enough to arrive at truth alone, for truth without values was valueless. With hindsight, what passed for truth now seems like self-delusion, and what passed for values now seems like self-importance, yet a cast of mind was developed that would serve one well in the years to come: not only to search for hidden truths but, having found them, to assess them in terms of their moral implications.

And so I became a federal judge and find that, every once in a while, I am called upon to make use of that Swarthmore training.

For example: No legal system easily accepts the proposition that its truth-finding processes are deficient. Determining the facts after-the-fact may be no easy task, but the meting out of justice so depends on it that lawyers, judges, and people generally have an almost compulsive need to believe that the truth-determining rules and procedures developed over centuries by the Anglo-American system of justice really do work. Even so great a judge as Learned Hand, sitting in the court in which I now sit, thought that, if anything, our legal system overly protected the criminal defendant: "Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream." (United States v. Garsson, 291 F. 646, 649 [S.D.N.Y. 1923]).

Yet the ghost lives, for in the last 10 years, DNA testing has proven conclusively that scores of criminal defendants found guilty beyond a reasonable doubt were, in fact, innocent. Considering the implications of this unwanted truth for the death penalty, I came to the conclusion that, by forever depriving a convicted person of the possibility of someday proving his innocence, the death penalty denies due process and hence is unconstitutional. In so holding, I had no illusions but that, in the short run, this unpalatable conclusion, though legally correct, would nonetheless be overridden on appeal-and it was. But for me to have decided otherwise would have been either to deny the truth or to place no value on it. Consistent with my Swarthmore education, I had no choice.