A previous post (here and here) asked some thoughtful questions about our methodology. These questions are answered in more detail in the methodology section to our report introductionaccessible here . I have excerpted below the relevant bits to the poster's questions about the completeness and fairness of our work.
Is the Truth Knowable?
Entire disciplines of philosophy, history, science and cultural studies are devoted to the debate on whether humans are capable of knowing “the Truth” and the examination of the politics and power relations embedded in any endeavor claiming to reveal it. Engaging these epistemological debates is beyond the scope of our report but one need not be a philosopher to appreciate the inherent limitations of the GTRC’s task of truth-seeking. We faced the same constraints in our research that all truth commissions face, including (among others):
- gaps in available evidence;
- imperfect memory;
- inadequate time, funding;
- lack of sufficient staff.
Reluctance to offer statements
In our research effort, we had to contend with gaps in our information that stemmed from reluctance to give statements because of many potential statement givers’ fear of retaliation or distrust of our process. In some cases, there is evidence that potential statement givers were explicitly discouraged by people outside the Commission from speaking to us (see chapters on City Response and Conclusions). As a result, our report is not as complete as it might have been. However, we made every effort to address these gaps by consulting trial transcripts, depositions and other available recorded interviews. Where full transcripts were no longer available, we consulted secondary literature (see Data Sources below).
Many (but not all) truth commissions were able to address gaps in information by using subpoena power that we, as a grassroots commission, did not have. However, we note that a subpoena is no guarantee of complete or truthful information and could work counter to the goal of reconciliation by forcing people to particiapte in a process about which they harbor feelings of fear or suspicion. Moreover, we believe that the voluntary offering of statements by many parties who were openly suspicious or hostile to our process is more meaningful than forcing statement givers to the table; the fact that these people offered statements is a testament to the integrity of our process not only as a truth-seeking exercise but as a step toward reconciliation.
Control of information
There are always significant challenges to fact-finding related to government agencies that maintain strict control over information. This was especially true with regard to federal agencies that released documents under the Freedom of Information Act (FOIA) that were nearly blacked out completely with redactions. In addition, we found that “discovery” allowable in the civil suit (i.e. the release of internal information to the plaintiffs) was limited both by broad federal immunity.
Imperfections of memory
Eyewitness testimony is notoriously fluid and idiosyncratic Memories of details are vulnerable to erosion by time (especially after 25 years), influence from other sources of information, and shifting political and social pressures that encourage the recollection of some facts and discourage the expression of others. Therefore, for the purposes of fact-finding, we preferred, when available, testimony taken closer in time to the event. However, memories also provide insights into the human cost and experience of the events and paint a richer picture of how the event lives on for people today.
Although we faced limitations and challenges in our research, they do not negate the possibility that rigorous fact-finding from the available evidence can produce a well-supported public record of what happened. We asked these fundamental questions of the evidence:
· Does the statement of a single witness sufficiently support a claim as fact?
· If not, how much information is needed to corroborate a fact?
· How do opposing and similar facts fit together? Can seemingly opposing evidence in fact describe different aspects of the same picture, or does accepting one preclude the veracity of the other?
· Jumbled recollection is often a symptom of traumatic stress. Does inconsistency among an individual’s recollections, especially one who was an eyewitness to a traumatic event, taint any particular observation?
We have consulted a wide variety of sources to corroborate evidence as much as possible and have noted in the text where corroboration was not possible. However, witnesses can also provide truthful accounts that are not corroborated. Occasionally, information is not subject to multiple observations and conversations between important actors on contentious topics usually take place with a limited number of participants and observers. If the statement provides sufficient detail, subject to other indices of credibility noted below, we believe it is appropriate to accept its claims.
We made every effort to fact check, corroborate and impartially weigh evidence (see below). These facts were assembled to produce one cohesive story of what we believe transpired.
However, this fact finding alone was not sufficient to understand what happened in all its complexity. Rather, this framework of a sequence of facts is brought to life by the accumulated narratives from individual statement-givers. In addition to adding a human dimension to verifiable facts, public testimony also provides the benefit of allowing a space for people who have not had the opportunity to share their experience and perspective in the past.
Statements from people who know about the events, the background causes, and the consequences reflected a wide variety of perspectives, in people’s own words. Interviews were conducted without rigid closed-end protocols in order to allow the statement-taker to tailor the interview to the individual, follow up on unexpected information and to make the statement-giving process itself an instrument of healing by allowing some leeway for the statement-giver to pursue areas she wished to express.
Narrative information helps us understand how individuals experienced these events and what facts different people see as relevant to telling the story. Why did different actors do what they did? How did events change them? These perspectives cannot be cross-checked and reconciled into one coherent account – in fact, revealing their diversity was precisely the point. This difference in perspective is often (though not always) why misunderstanding and conflicts occur. Exposing some of the differences in experience and perspective provides a human, lived dimension to the framework of fact-finding, and was an explicit aim of our research.
Data sources
Our research drew on a variety of data sources. In addition to our own interviews, we consulted GPD internal records (including statements, investigation reports, physical evidence, medical examiner reports, internal memos; Internal Affairs interview summaries; police and news photos and slow-motion news footage); selected trial testimony from all three court cases; federal Grand Jury testimony; civil suit depositions and criminal case pre-trial interviews; and a wealth of civil suit discovery material including internal records from the GPD, FBI and BATF.
Because the official copies of trial transcripts from the criminal trials have been destroyed, availability of copies was idiosyncratic. We were granted access to transcripts through the personal collections of Judge James Long and playwright Emily Mann, as well as those available in the UNC Wilson Archive because they were used as part of the civil trial. Where transcripts were not available, whenever possible we supplemented with secondary sources such as newspaper reports, journal articles and books. However, because they were secondary sources and filtered through the authors’ own interpretations, these accounts of testimony were not given as much weight as primary accounts.
Procedural fairness
The GTRC is not a judicial body (see chapter on Injustice in the Justice system for more on the different missions of courts and TRCs and what our goals were in investigating the trials). There are no adversarial parties, no cross-examination of witnesses in our hearings or statement taking, although many of the documents we used in our research were court documents that had been the subject of cross-examination.
Nevertheless, anyone was free to offer a statement and we considered all statements and evidence impartially, as explained above. The need to provide an opportunity to pose questions was partially addressed by asking statement-givers whether they had questions they wanted the Commission to address or to have other key players answer. In addition, for all parties who were to be named in association with wrongdoing in the report and from whom we had had not yet received a statement, we made every attempt to re-contact them to offer one final opportunity to offer a statement. Indeed, one key police officer accepted this invitation and offered his statement in the final days of report writing.
All statement-givers, whether their statements were delivered in writing or orally, were asked to sign a statement affirming that there was nothing in their statement that was willfully false.
Standard of evidence
Our standard of evidence, like many truth commissions, is the “balance of probabilities,” also known as “preponderance of evidence” This means that based on the totality of evidence before us, if an individual piece of evidence was judged “more likely than not” to be true, we took it as fact. For simplicity of language, we at times express this standard as “common sense” or “reasonableness.” This standard was applied uniformly to every statement regardless of the content of the information or identity of the witness.
As stated above, the GTRC is not a court. Accordingly, it was not bound by rules of evidence. The production of a single statement on a contested issue could easily satisfy the preponderance of evidence standard if it is judged to be credible (see below on weighing evidence). Before the statement, there was no evidence. Now with the statement, regardless of whether or not the witness is sworn, there is new evidence that might tip the scales in favor of a finding. We indicate the finding has met the standard of “more likely than not” by saying that “we find there is sufficient evidence.”
In some cases, the “preponderance of the evidence” standard is greatly surpassed where multiple sets of information aggregate, for example when multiple witnesses present similar versions and/or there is corroboration of evidence from other sources (including videotape or physical evidence), as we note in our findings by indicating that there is “substantial” evidence.
One possible disadvantage of the “preponderance of the evidence” standard is the exclusion of some information. A fact that is unreasonable or not credible may be excluded from consideration. How we made that determination is outlined below.
Weighing conflicting evidence
In assessing the probability that a piece of evidence was likely to be true, we used the same means that everyday people use when assessing credibility of a claim, including:
· What was the person’s ability to remember and relate details about the observation he/she is presenting? If asked in multiple ways, does he/she relate the details in a consistent fashion?
· Is the source in a position to know the evidence he/she presents? That is, did the source hear or see the evidence directly or is she/he reporting something she/he heard from somewhere else? Hearsay evidence is not admissible in court, but we accepted hearsay evidence if it was otherwise judged credible.
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· Is the evidence presented against the source’s interest? That is, does the source have a reason to lie? Is there any noticeable bias toward any particular version of events?
· What is the past record of the source’s version of events? Has it been consistent?
· Is the evidence consistent with other evidence from different sources?
· Is the evidence logical/reasonable?
· Was the evidence sworn? Cross-examined?
Clearly, this is not a checklist of criteria that all evidence must meet in order to be assigned credibility. For example, because a source presents evidence that might be in his or her interest is not in itself sufficient reason to doubt its credibility. However, if the evidence is against the source’s interest, it adds significant weight to its credibility.
Not all of the evidence we considered was sworn or cross-examined because we are not a court. But some of the trial documents that we reviewed were indeed both sworn and cross-examined, which is an aspect we considered in weighing the credibility. Trial and Grand Jury testimony, civil suit depositions, and written answers to plaintiffs’ interrogatories are all sworn. For trial (but not Grand Jury) testimony and depositions, attorneys for both sides are present and can cross-examine and make objections. Statements to GPD and GTRC are not sworn and attorneys are not present; pre-trial interviews for criminal cases are not sworn, nor are FBI interviews. FBI interviews are summarized by the interviewer and are not transcripts. GPD statements are most often summarized by the interviewer, but sometimes transcripts for the more extensive interviews with suspects were provided.
This list enumerates considerations we used in weighing evidence and illustrates that weighing evidence is an unavoidably subjective exercise. But when done in an explicit way, testing information against these indicators, the process of fact finding can be made much less arbitrary.
Findings of fact and interpretive conclusions
Our primary research goal was to provide an accurate public record of what happened so that people could begin a dialogue about what these facts mean and what should be done to address them. However, as a Commission, we also felt that a neutral recitation of facts was insufficient. People who have been wronged do not need a truth commission to merely record and repeat their stories, telling them what they already know. We believe it is the obligation of the Commission to go further and make conclusions that interpret the larger significance of events, assess where there have been wrongs committed and assign responsibility for those wrongs. As most truth commissions have also done, we make assessments of the significance of these facts using both legal (according to constitutional and N.C. state law) and moral principles as standards.
Some wrongs are not necessarily a violation of law but may constitute a moral or ethical breach. For example, we considered some wrongs of omission and commission to be inconsistent with a modern democratic society and morally or ethically wrong.
A basic distinction is made between those who passively allow unjust systems to persist and those who actively contribute individually wrongful acts, either of omission or commission. Moreover, we believe that the attribution of moral responsibility differs for individual and state actors. The latter should be held to a higher standard, not only because of the power with which they are entrusted by the community (including the monopoly on the use of force and the power to arrest and detain) but also their responsibility to protect citizen rights and wellbeing. When wrongs are committed by agents of the state or when institutions designed to protect basic ideals of justice fail in that mission, the consequences are often more widespread harm to the body politic and the continuation of a corrosive atmosphere of fear and threatened violence (see chapters on City response and Injustice in the justice system)
In addition to individual actors, the Commission also discussed more broadly how the very system of racial and class injustice contributed to negative outcomes. Ethical or moral standards today, or even an evolution in the law, can also serve as a basis upon which to make judgments about things that occurred in the past. For example, the Commission explored not only what the law was that allowed lawyers to strike potential jurors based on their race, but also why such a jury does not satisfy the ideal of justice and why this has changed to a different standard today.
On a related issue, the blog poster asked why we could call the juries “all white” when one member on the state jury was a Cuban. This is a complicated issue, one that also comes up when people refer to 4 or of the 5 victims being "white." Racial and ethnic identity is obviously very contested ground (there are entire academic disciplines devoted to it) because these concepts are so deeply intertwined with politics and power. In addition, self-identifiers have greatly evolved over time. Many Hispanics refer to themselves as racially white, which is why the 2000 the US census started using the distinction between 'white Hispanic' and 'white not Hispanic.' It would have been preferable to have Mr. Manduley identify his own ethnicity/race, but he declined to participate in our process.
One final note. Although I am moving away from Greensboro, I will continue to follow this process from afar on the blogs (I hope that someone takes on Jill's earlier suggestion about setting up a blog specifically for TRC discussion) and will be periodically available for any further questions and discussion (although I am going to be checked out for the next few weeks on vacation, trying to recover my sanity).
Emily Harwell
