Restoring justice or comfort?

by Terry Kay Diggs

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The pundits suggest that the case against Timothy McVeigh has restored the image of the criminal trial. Denver's celestial Justice (as pictured right) has reclaimed her seat from Simpson's Joker. Nevertheless, the vision that emerges from the trial of our nation's deadliest terrorist may not be that of a serene and sightless goddess. Instead, what has been refurbished by McVeigh may have less to do with criminal justice than with our comfortable conceptions of America itself.

For all our pronouncements, trials have scant connection with the strict symmetries of literal justice. Rather, trials are the greatest narratives that we construct about ourselves -- the contemporary epics that identify who we are. In comparing McVeigh with the Trial of the Century, it is wise to remember that Simpson was a story nobody liked very much.

Simpson told us something far worse than that a man might kill and avoid punishment. Rather, Simpson reviled us day after day with the message that we were not -- and were not even close to -- who we thought we were.

Simpson showed us a nation of panderers -- fawning over secrets; enraptured by lifestyles of the rich and reprehensible; voracious while human emotions became products for sale on "Larry King Live."

Simpson exposed as apocrypha our myths of basic American decency. And the worst of our lies, we learned, were our fables of racial consonance.

By contrast, McVeigh --for all its horrors -- resurrected an America now familiar to us only in memory: an America of selflessness and swift action, of benevolence and bravery, of cooperation, compassion, and ultimately, community. From Oklahoma City, we saw the image of a dead child, and we wept as one.

In sum, Timothy McVeigh was not a real threat to us. Cold and distant, obedient to strange codes and covert texts, he was a partisan in a nation that has never really understood political crimes. For the most part, we have buried our assassins and their secrets. Thus, these seditious strangers have not truly imperiled us -- have not come into our homes on Monday nights; have not been role models to our kids; have not seemed knowable as friends.

Tim McVeigh betrayed his country, but his prosecution was a story of American resurrection. O.J. Simpson's crimes were personal, but the legal proceedings surrounding them depicted a nation contaminated by privilege and prejudice.

Largely, we have condemned these trials without recognizing them as likenesses of ourselves. It is time to do so. Our America embodies each image. And, in the end, it is both of them.

Terry Kay Diggs is a private practitioner who teaches criminal trial advocacy at Hastings College of the Law in San Francisco.