UNRESOLVED EVIL

The plan was to get us downstairs into the courtroom before the reporters got in. It came time for us to be escorted down in batches. There were (maybe) thirty of us, and one elevator, and a lot of after-you’ing as we arranged ourselves into elevator-sized groups. There was a bond among us after all, everyone was friendly and polite — and no one was in any hurry. The metal detector outside the courtroom is more sensitive than your standard airport model. I couldn’t get through without setting off the alarm, on account of the metal in the fake thumb I wear strapped to the remainder of my right hand or, maybe, the shrapnel fragments still floating around in my chest. They tried me a few times, then waved me through.

Judge Garland E. Burrell Jr.’s courtroom is done up in mid-’60s Holiday Inn style. The furniture is austere; the walls are paneled in wood that has somehow been made to look plastic. The spectator pews are divided by an aisle down the middle. Prosecution-related people sat in front on the left, defense people on the right — “sort of like a wedding,” an FBI man explained. The room lacks majesty, stateliness, bathrooms. The bathroom situation was a hot topic that morning. Rumors flew thick and fast. Some claimed that once the judge arrived, you weren’t allowed out until recess. Others said that leaving was no problem, but you couldn’t get back in. I never did hear the straight story.

The session was supposed to start at eight. We were seated by seven- thirtyish. The prosecutors were already there: Freccero, Cleary, and Lapham. I’d got to know Freccero and Cleary, and to admire them. Cleary was the head man — tall with a trim beard and dark piercing rabbinical eyes. I once saw him, when the judge said something he didn’t like, lean back in his chair and stare silently at the ceiling as if he were exasperated with God and wanted God to know it. Freccero is broader, looks and moves like a boxer, speaks in grim slow-motion, like a Gary Cooper sheriff. His features are blunt and forceful; there is suppressed tragedy in his voice. He is not humorless, but I rarely saw him smile.

Cleary and Freccero both radiate intense moral seriousness. They believed that evil had been done, and they knew who did it, and they knew what ought to be done with that man. And they were beleaguered and exhausted; they were bears at a bear-baiting. They were painfully discreet: Freccero praised the judge several times in our many long conversations, and never said a word against him. Occasionally he would criticize the defense or the press in quiet, guarded terms. The prosecution was colossally meticulous; their grids, their numbered charts, their endless roomsful of evidence could give you the queasy impression of a well with no bottom. They had dotted every i and crossed every t, but entering the funhouse of the modern U.S. justice system, you could feel them setting their jaws. When the prosecution team huddled in court, Cleary in the center, Freccero and Lapham leaning sharply toward him on either side, you could picture the heat-shimmer overhead.

A summary version of the evidence had arrived in the care of an FBI man, dozens of loose-leaf binders carefully arranged in what looked like a fancy shopping cart. The evidence had been put online too, and there was sophisticated computer equipment on hand. Amid all the grimness and high-tech: two sketch artists with neat ranks of Derwent colored pencils — such a whimsical, out-of-place touch, it made my day. One of them (I was told) made a sketch of me, and I decided that the next day I came to court I’d bring pencils and make a sketch of her. There never was a next day.

FBI agents do the legwork and handle trial logistics. They’d fetched us at the airport the night before, and they shepherded us around Sacramento in their white government-issue Chevy Luminas. The younger FBI agents are so nice it’s alarming. I asked a couple of them what they thought of Director Louis Freer, and they praised him by citing anecdotes about how much time he spends with his kids: how one child had told Janet Reno that Dad couldn’t come to the phone because he was playing Nintendo; how the director had missed an official ceremony because of a boys’ soccer match. In court I met a senior FBI man with a gruffer delivery and a hardboiled Tip O’Neill face, but he used the word “supportive” twice in one conversation. The whole FBI talks like a social-work agency.

We were ready. The prosecutors had prepared us well. They’d come to see me in New Haven several times and showed me FBI photographs of the crime scene: my office, a bathroom where I’d stopped briefly and pointlessly to wash out my eye, the staircase I’d walked down — everything drenched in blood. In a series of long conversations last fall they explained their strategy and kept us informed, and the preliminaries seemed to be on course. The date approached, and (with generous help from the FBI) we planned our trip. I dreaded it, naturally; the traveling itself, the courtroom scene, the press, the testimony. I got ready by working on a series of three paintings that gradually elbowed all my other work aside, pictures of David getting set to take on Goliath; a self-aggrandizing theme, but absorbing. When I wasn’t working on the paintings, I carried them around with me, studied them for hours, stayed up nights reworking them. (A painting is a form of trapped energy, like a compressed spring or a rock at the top of a hill.)

So we sat in court chatting about the bathroom situation, waiting for the trial to start. Towards eight, my wife asked an FBI man when the defendant would arrive. “He’s already here,” the answer was, “over at the defense table. ” The judge walked in. No one told us to rise. The first voice we heard after the judge’s was the defendant’s. A cool, collected voice: He and his lawyers were having a serious disagreement about how to proceed, he said. “I’m sorry I can’t rise to address you,” he added, “but the marshal told me to remain seated.”

Bull’s-eye. He’d waited till the whole cast was assembled, and we were on the verge of starting, then tossed his wrench into the works with casual arrogance and perfect aim and, sure enough, the machinery clanked to a halt. The judge adjourned to chambers, taking along the defendant and the defense lawyers and a court reporter. When the trial reconvened later that afternoon, it was only to arrange a recess. Next morning we flew home to Connecticut.

A few weeks later the prosecution made a deal, and the trial was canceled. Kaczynski would plead guilty to the crimes that were charged in Sacramento, and his other crimes too, for which he might have been tried in other states – – three murders in all, plus a bunch of attempted murders. Cost to the defendant (special deal, one time only): life in federal prison without parole. Yes he had, in the great American tradition, traded up; he used to live in an unimproved shack in the wilderness. And if you are an ascetic bent on winning fame by preaching against society and the state, you couldn’t ask for a bullier pulpit than a federal jail cell.

The prosecutors tell me they did the best they could under the circumstances. I believe them. Nonetheless, they lost.

In retrospect I wasn’t David; the prosecutors played that part. The Department of Justice is a powerful institution — but the community as a whole is more powerful, as it ought to be and has to be. Elite public opinion acts on the Justice Department, the jury, and the judge. The prosecutors believed that truth and justice demanded the death penalty. But elite public opinion tends to oppose the death penalty and seemed especially prone to oppose it in this case. The defendant himself was a proven first-rate manipulator, and our legal system is wide open to manipulation. Could the prosecution win anyway, succeed in getting the murderer condemned to death? Maybe. And if an appeals court decreed a second trial, could it win again? Maybe. But in the end (my impression is) there were too many maybes for comfort — and there was the worry in the back of everyone’s mind that things could somehow go horribly wrong and the murderer could walk. Every big trial in modern America is a national humiliation waiting to happen. O. J. Simpson is merely the bestknown example of what is today a regular garden-variety, Mister-Rogers’Neighborhood American type — the murderer at large. The criminologist John DiIulio estimates that there are maybe half a million of them in our big cities.

The prosecutors struggled but lost. Not because the murderer is alive and not dead. They lost — we lost — because the community was called on to condemn terrorist murder in the strongest possible terms, unambiguously, definitively — and we blew it. It was important that the man be sentenced to death, and whether the execution were ever carried out would barely have mattered. (Had he been condemned to death, apologized, and repented, I might have been inclined myself to commute the sentence.) Failure to hold the trial was a defeat in itself. We hold trials to deal justly with the accused, but that’s not all; a trial is a powerful public ceremony, too, and we no longer trust ourselves to pull it off. (Ceremonies of all sorts are beyond us, from trials to political conventions to weddings.) A plea bargain in a case like this is an abrogation of the public’s responsibility to face facts and come to grips with the truth.

How we dispose of the criminal doesn’t matter. What matters is our communal response to the crime. Evil is easy, good is hard, temptation is a given; therefore, a healthy society talks to itself — in laws and editorials, court judgments and theater productions, public lectures, political speeches, university courses. When a criminal commits an evil act, a healthy society denounces it as such. A sustained, unanimous hiss rises from the crowd — or at least is supposed to.

Such ritual denunciations strengthen our good inclinations and help us suppress our bad ones. We need to hear them, and hear good acts praised, too. We need to hear the crowd (hear ourselves) praising good and denouncing evil. Not commiserating and whining and preening, not promising to be non- judgmental and always to love one another just as we are (you wish) and showering each other with ersatz forgiveness like tinsel snow at a grade- school Christmas play — those are lollipop gestures, cheap and childish, sticky-sweet and without moral substance — but praising good; denouncing evil. Goodness is unnatural, and we need to cheer one another on.

But ever since the intelligentsia took over the cultural elite, moral leadership is hard to find. The crowd babbles and sulks, and no one can understand it. What to expect of a society that no longer roots for its own best instincts? No longer talks intelligently to itself?. Moral chaos. A third of babies born out of wedlock; half a million murderers at large. Children learning about sex instead of morality. Power and money ranking higher than childrearing on our moral scale. A president who grows more popular the worse he behaves. A terrorist murderer who is rewarded instead of punished.

Which is exactly what happened to the murderer Kaczynski. Up at Harvard last term in Lit 129, “Reading the 18th Century Through 20th Century Eyes,” the reading list included Beaumarchais, Diderot, Kant, Rousseau, Foucault, Kundera, and “Unabomber,” among other distinguished thinkers. (I’m grateful to Thomas Lipscomb for pointing this out to me.) The same thing could have happened nearly (though not quite) anywhere in modern academia. I’d bet money that Harvard is not the only college with this particular terrorist on its reading lists.

And so what? Bad men can be good writers. Norman Mailer once stabbed his wife, and I’ve written about him myself and praised his books.

Trouble is, Kaczynski made the Harvard reading list not despite his vicious crimes but because of them. Some thinkers (I don’t deny) agree with his anti- technology ideas. But no serious person ever claimed that his thoughts were new, or that his manifesto was well argued or well written. Kaczynski made that Harvard reading list on the basis of our shattered hands and shattered eyes, permanent injury and permanent pain — ours, the lucky ones who survived. Three unlucky men died to make Kaczynski’s name at Harvard. He attacked us with bombs for exactly this purpose: to get famous, win attention for his ideas. Harvard rewarded his hard work with the thing he wanted most.

Should we decorate Harvard for guts at least, pin a medal on its chest for courting public outrage in defense of depravity? Of course not. Harvard risked nothing. Harvard knew perfectly well that, by and large, its faculty, students, and moneyed supporters wouldn’t give a damn. (There are a few honorable exceptions, which are precious to those of us with a personal stake in the thing.)

Paris, 1893: A terrorist bomb explodes in the Chamber of Deputies. No one is killed but forty-seven people are hurt. The anarchist intellectual Laurent Tailhade is asked to comment. He speaks prophetically for the 20th-century intelligentsia and for Harvard University circa 1998: “Qu’importe les victimes si le geste est beau?” What difference do the victims make if the gesture is beautiful?

When a terrorist murders a man, it is a meaningless act. There are evil men in every society, and they do evil things; that’s all. It’s up to the community to redeem the evil and collectively transcend it, by responding with dignity, assurance, and absolute clarity. But nowadays we disdain to do that, and we are haunted as a nation by unresolved evil — we dine at Macbeth’s every night, and pretend not to see Banquo’s ghost. I wrote a book in which, some people claimed, I blamed the intelligentsia for Kaczynski’s crimes. Such an accusation would have been ludicrous, and I didn’t make it. What I blamed on the intelligentsia was our morally bankrupt response — especially the press’s response. We can’t hold society accountable for failing to prevent every evil act. We can and must hold it responsible for failing to condemn every evil act.

Harvard’s course makes no difference in itself. There’s a lot worse going on in academia today. But it is a perfect crystallization of the credo we have learned to associate with intellectuals — not all of them, but too many: “Si le geste est beau . . . “ Lit 129 speaks loudly in its own small way. My guess is that, two generations ago, a large majority of Americans would have condemned such a course as disgusting, and most intellectuals would have shrugged it off. And my guess is that, today, a bare majority of the public would still find it disgusting and a large majority of intellectuals would still shrug it off. Just a guess.

In police terms, which are important, our communal response to Kaczynski’s crimes succeeded. We found the man and put him away. In moral terms, which are even more important, our response was a failure. Which leaves us today with a new responsibility: to respond to the response. Public life is a conversation forever, year to year, generation to generation. With the right communal response, we can redeem the prosecutors’ bargain. The way to do it is by telling them, “You lost, no question — but we honor you for fighting.” The community will either seal the defeat by shrugging it off or, by admitting that it was a defeat, and a painful one, turn it into a kind of victory: a reaffirmation that evil will always exist but we will never accept it; we will always fight it. For myself, I’m left with three painted Davids, one per prosecutor. You can’t put everything in words; that’s why we have paint too.

On that day I met her in the witness room, Susan Mosser was dignified and beautiful and dressed in black. She wouldn’t have testified in Sacramento; the murder of her husband would have been tried separately in New Jersey. She had come to register support and see what happened. I’d written the Justice Department when it was pondering whether to seek the death penalty in this case; I pointed out that the Mossers’ youngest child was 15 months old when her father was murdered, that no one remembers life at that age, and that the crime of erasing a father from his child’s memory is the evilest crime I can imagine.

But when I met Mrs. Mosser I wasn’t thinking about children; what came to mind for some reason was a promise I’d made my wife a long time ago, that someday I would buy her a house by the shore. Such houses don’t come cheap, and I still haven’t delivered; but someday I believe I will. When it’s 3 A.M. and I can’t sleep, I don’t think, ever, about the evil coward who worked hard, burned the midnight oil, and made that Harvard reading list at last — an American success story; a dream come true. But I do wonder sometimes what promises Thomas Mosser made and will never keep. A famous passage in the Mishnah, tractate Sanhedrin, lays down that to murder a man is to destroy a whole world. We have come a long way since then. For sophisticates like us, destroying worlds is no big deal anymore.

David Gelernter, a contributing editor to THE WEEKLY STANDARD, is the author of Drawing Life: Surviving the Unabomber (Free Press) and, most recently, Machine Beauty (BasicBooks).