On the true meaning of “tragedy”

by Jamison Koehler on March 7, 2019

My father used to complain about overuse of the word “tragedy.”  Something could be sad, he said, heart-breaking even, without being tragic.  I guess he looked at the word in a more classic context.  The hero in a Greek tragedy, for example, usually met his ruin as a result of some tragic flaw in his character  — typically pride or hubris. 

So here is my story of a tragedy.  It is also a story of “I told you so.”

A man is charged with soliciting a prostitute.  He is a Lyft driver who, on the night in question, drops off a customer in D.C.  A female undercover officer approaches the car while he is pulled over.  What happens next is contested.   

Before trial, the government offers the man a diversion program for first-time offenders.  There is no acknowledgment of guilt.  There is no risk.  Things are 100% within his control:  All he has to do is perform 32 hours of community service over four months.  The case will then be dismissed.  

But the man is stubborn. He insists on taking the case to trial. He believes in the American judicial system.  And having the case dismissed is not enough for him:  He wants to be acquitted.  Perhaps he overestimates the significance of an acquittal.  He may not appreciate that an acquittal does not prove innocence. All it proves is that there was not enough evidence to convict beyond a reasonable doubt.  A person can probably be guilty of a crime and still be acquitted.

As it turns out, the man has a defense.   He does not speak English, and the body worn cameras show all sorts of communication problems with police after his arrest.  He provides his age when they ask for his height.  He is even charged in the wrong name, his last name mangled and inverted with his first name, which is also incorrect.  Moreover, even according to the undercover officer’s version of their conversation, an exchange that was not caught on camera, it is only the officer that says anything about money or sex.  The man’s contribution to the conversation is mostly to agree with what she is saying.  This is not surprising considering the language difference.  It is not surprising that a Lyft driver agrees when it comes to talk about money and hotels. 

In other words, there is reasonable doubt.

After the government rests its case, the court denies the defendant’s motion to dismiss for lack of evidence.  Given the standard at this stage in the proceedings, with all inferences in favor of the government, this is not surprising.  It does not mean the court will not find reasonable doubt later. 

It is now the defense’s turn.  The man’s lawyer introduces a character witness for the defendant and the court hears all sorts of nice things about the man.  The court could acquit on the basis of this testimony alone.  There is a wonderful quote from a hundred-year-old case from Pennsylvania: “Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril?”  The man in this case spent over 50 years acquiring his good character, and the trial was certainly his hour of peril. 

But the defense does not rest after the character evidence.  It does not leave well enough alone.  Instead, talking through the interpreter, the man tells the judge that, against his lawyer’s wishes, he wants to testify.  He wants to have his day in court.  He wants the court to hear from his own mouth that he did not commit this crime.  He has faith in the American system of justice. And justice is good. 

Responding to questions from his own lawyer, the man does not add much to the narrative.  The court has already heard what a good person he is, an argument that was more persuasive when it came from his third party character witness.  Besides, sometimes good people do stupid things.  The undercover officer already admitted problems communicating with him while he was being processed, and the judge can see this for himself through the body worn camera footage.  And the judge is not interested in hearing the man’s views on American justice:  He sustains the government’s objections every time the man strays from the night in question.

The problem is, now that the man has testified, he has opened himself up to cross-examination.  He admits he has been in the country for years. He admits he works at a job that requires him to communicate with his English-speaking clients.  He contradicts himself when describing the course of events that led up to the undercover officer approaching his car.  Worse than that, confronted by a skilled prosecutor, the man begins to get agitated. He begins to answer questions before the interpreter finishes the translation.   

The judge notices this. The judge remarks on this. 

The judge finds him guilty. In so doing, he specifically cites the man’s testimony:  Of course he speaks English, the judge says.  Of course he knew what the officer was talking about when she asked him if he was looking for a good time. 

The point of the story is this:  It may break your heart to read about dead children.  But there is not necessarily anything tragic about this.  By contrast, the man in this parable could have done 32 hours of community service and had the case dismissed.  Once at trial, he could have decided not to testify.  Instead, he is a convicted criminal.  He lost his job because of the conviction, and he now sleeps in his car. The conviction will also cause problems when he applies for U.S. citizenship.  And he has only himself to blame.  This is heartbreaking.  This is also, I am sure my father would agree, what makes this a tragedy in the traditional sense of the word.  

4 Comments on “On the true meaning of “tragedy”

  1. Oops. Clients. Ya gottta love ’em.

  2. Hello Kristi Bodin!

    You apparently are the only person who still reads this blog. Thank you for visiting. Thank you for taking the time to comment.

  3. I read it too, Jamie, and I share it with my daughter who is 2L (Scalia Law) with hopes to become a criminal prosecutor. Your storytelling is so excellent, and it is also a testimony to your father. Keep writing, and best wishes,

  4. Great to hear from you, Tom. I am honored to have you on this site and commenting. Good luck to your daughter. I love criminal law. I think she will too.

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