Wednesday, April 25, 2007

Memories are Made of This-Part II

We explored memory’s fallibility in my last column (D.J. January 16th 2007), remember? We learned that memory carries with it awesome responsibility. It can uplift one to heights of ecstasy, but its destructive force can plunge one into the abyss. It can destroy reputations, opportunities, even life itself. DNA evidence has proven memory wrong. Yet, however faulty and confused, memory often asserts its claim with certainty and arrogance. Judges take note.

In my last column we pondered how to resolve the clash of memories concerning whether it was the pianist Sviatoslav Richter or Glenn Gould who dismantled the Steinway at the beginning of a concert at the Harmon Gym on Cal’s campus in Berkeley in the early 1960’s. In this column we marshal the evidence that ineluctably leads us to the answer.

As you recall, my friend, who I called D to protect her privacy, and I attended a piano recital at the Harmon gym in 1960 or 1961 (as I shall explain we now know it was 1960),where the demolition occurred. Our respective memories agree on that.

Incidentally, D, who upon reading my last column informed me that the childish use of the letter “D,” her nickname, to protect her privacy, which needed no protection in this matter, was unnecessary. Apparently she is not a Franz Kafka fan. So in this column I shall refer to her as Deena, her name, but with no assurance that she might have preferred I stick with “D.”

Deena acknowledged that I accurately described the details of the manner in which the destruction took place. Up to this point our memories are in, please forgive me, perfect harmony. It is to the question, “Which pianist savaged the Steinway?” that Deena’s memory and mine take divergent paths, and that could make all the difference. One memory leads to a faithful recreation of the past; the other to an imagined reality existing only in neurons, synapses and memory cells on sabbatical. Deena says the pianist was Gould, “you know how eccentric he is.” I say it was Richter, no buttressing argument necessary; that is what I remember.

We spend two columns on this quirky event because the underlying issues involve the lifeblood of our justice system, memory. This is something of far greater consequence than Maurice Chevalier and Hermione Gingold singing "I Remember It Well" from the musical Gigi. Trials attempt to recreate events of the past based to a large degree on memory. Pity the poor litigants, the facts of whose cases depend primarily on memory. If Deena and I were the only witnesses in a trial to determine which pianist desecrated the Steinway, how would the trier of fact judge our credibility? We are both sincere and certain.

At the conclusion of this column I will render my decision on who was the unruly pianist. In the ensuing discussion I reveal a rare glimpse into a judge’s decision making process so that attorneys, litigants, and the public will appreciate the effort and care judges take in reaching the “right” decision. Some might protest that it is unseemly for me to render a decision in a case in which I am a witness, that the decision will be tainted, uncitable, and subject to ridicule. I will not argue the point. I only ask that you consider the facts that I faithfully relate with scrupulous accuracy and decide whether the decision is correct. If the Supreme Court reverses on a technicality, or even worse depublishes it, we still will know what happened.

In my last column I tried to resolve this conundrum for the trier of fact in a plea for help. The person or persons who provided information leading to resolution of the dispute would receive honorable mention in this column and I would make a contribution to legal aid. I received numerous e-mails from a variety of people who were not shy about sharing their views even though most had not been at either concert. A piano dealer said it had to be Gould because the act would be consistent with his personality. Many others agreed with this assessment.

You might also recall that in my previous column, I said I was speaking one evening with some friends about the incident, and Joan Booke chimed that she had attended the concert and remembers quite clearly who the pianist was. I withheld disclosing what Joan said because I did not want to influence anyone who might contact me with the information I sought. Now I will reveal what Joan Booke said, “It was Richter.” She remembered the event quite clearly and she also remembered that she had not attended the Gould concert.

I sent my column to Deena, and she called me to assert once again that I was wrong about the concert. I told her of Joan Booke’s recollection and Deena reminded me that I, a judge, should realize that witnesses’ memories are often faulty. I suggested that this insight also applied to her. I acknowledged that recollection is often flawed, but that Joan was an independent witness who had not been coached. Moreover, she had no interest in the outcome of the dispute and gently chided me for pursuing the issue. “Why not just let Deena believe she is right, and leave it at that? Is it so important for you to be right?” I told Joan that however self-serving it may sound, my goal was not to be “right,” though it would be a comfort to know my memory was grounded in fact rather than imagination. I was in pursuit of the truth and a decision on the merits.

Another wrinkle in this case is that Deena is relatively certain she did not attend the Richter concert. And Joan is certain that she did not attend the Gould concert. And I am certain I attended both concerts, and absolutely certain that Deena and I had attended the Richter concert together, and moderately certain we had also gone together to the Gould concert.

It is also noteworthy that Deena and I remember exactly what occurred during each of the three episodes when various parts of the piano were removed, and the audience’s reactions. She even remembers her remark to me that the piano will be in shambles by the end of the concert.

As the weeks passed after publication of my column more people came forward with the fruits of their research. Joan’s husband, my good friend, arbitrator Frederick Booke, informed me that the concert took place at the Harmon Gym on November 13, 1960, at the end of Richter’s American tour that began in the New York earlier in the year. Last month I appeared on a CEB panel on Evidence. At the end of the program a lawyer came up to speak to me, not about hearsay, but to inform me that her research revealed that 1960 was the year that Glenn Gould stopped giving concerts. Yes, I was not sure whether the concert had occurred in 1961 or 1960. As you shall see that small uncertainty is of no moment. Music critic and writer Gene Lees told me that he knew Gould quite well in Canada, and opined that however eccentric Gould was, he would never tear apart a piano. Lees said that Gould was not a violent person and would not commit an act of violence even against an inanimate object, particularly a piano.

But then a breakthrough occurred when I recently received an e-mail from Law Professor Paul McKaskle. He was dean for many years at University of San Francisco Law School where he still teaches a variety of courses. This includes Evidence, which he taught as a visiting professor at Boalt Hall. Now he ought to know what he is talking about.

He and his wife Ellen attended the Glenn Gould concert at the Harmon gym in 1960. But in 1960 they were not married and did not know each other. They independently remember that Gould, “full of peculiarities,” did not lay hands on the Steinway other than to touch its keys. This compelling evidence brings the case to a close. With publication of this column I will send my check in the amount of $200 in honor of Professor Paul McKaskle and his lovely wife to Public Counsel, the law firm in Los Angeles that renders pro bono legal services to the poor.

Deena called me again to see how my research was coming and I told her that I thought the evidence produced by Joan Booke, and Professor McKaskle and his wife compelled a ruling in my favor. Deena graciously agreed. She found it puzzling, however, if not disturbing, that she could be wrong about something she remembers so vividly. That approximates how I would have felt had the evidence pointed to Gould. Indeed, such a revelation can engender acute distress. If parts of our past are the product of imagination, then that can call into question who we think we are in the present.

I am convinced beyond a reasonable doubt that my decision is correct, but the outcome of this case gives me no satisfaction, other than a momentary sigh of relief. Deena’s acknowledgement that her memory had apparently failed her gave me a pang of regret. Would it have been just as well for Deena to believe as she did without my meddling? No, I know Deena, and I am convinced that she, like me, believes the pursuit of the truth is more important than being right.

And that is what judges must do all the time. They must make reasoned decisions even when they are not pleased with the outcome. All we can do is get as close to the truth as possible, and decide whether a party has met his or her burden of proof. And I am not convinced of the correctness of my opinion beyond all doubt. I am not convinced of anything beyond all doubt, including my existence. But if some additional evidence should reveal that it was not Richter after all who violated the Steinway, you can trust me to reverse myself.