{"id":1592,"date":"2018-09-30T14:18:31","date_gmt":"2018-09-30T21:18:31","guid":{"rendered":"https:\/\/schoenblog.com\/?p=1592"},"modified":"2019-01-28T10:33:16","modified_gmt":"2019-01-28T18:33:16","slug":"wishful-thinking-and-reasonable-doubt","status":"publish","type":"post","link":"https:\/\/schoenblog.com\/?p=1592","title":{"rendered":"Wishful Thinking and Reasonable Doubt"},"content":{"rendered":"
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In German, the phrase used for wishful thinking is\u00a0Der Wunsch ist Vater des Gedankens<\/em>, which translates as “the wish is father of the idea.”\u00a0 I like that construction because I think it says a lot about how we decide what we believe.<\/p>\n

This week’s testimony by Dr. Christine Blasey-Ford and Judge Brett Kavanaugh<\/a> before the U.S. Senate Judiciary Committee has the entire country talking about sexual assault and alcohol use, but also about more abstract issues of memory and evidence and proof.\u00a0 Understandably, given the political setting, the debate has divided cleanly along partisan lines, but in doing so, it has sometimes placed people in unfamiliar territory on some of the more broad themes.\u00a0 I include myself.<\/p>\n

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I am generally very defense-oriented, and a firm believer in giving accused defendants the benefit of reasonable doubt. Forcing the state to overcome a high burden of proof undoubtedly leaves many crimes un-prosecuted and allows many guilty defendants to avoid conviction, but it also feels to me a necessary barrier to avoid wrongful prosecution of the innocent.\u00a0 It is the fair price we agree to pay when we give the state the authority to punish the guilty.<\/p>\n

This willingness to entertain the possibility of reasonable doubt has led me to some unpopular decisions.\u00a0 When I was a juror in a gang murder case back in 1994, we deliberated for less than an hour before taking our first vote, 11-1 for guilty.\u00a0 Guess who the holdout was?\u00a0 After three days, about half the jurors ended up agreeing with me but the jury was hung.\u00a0 The defendant was retried and convicted and twenty-four years later he is still in prison.\u00a0 It bothers me to this day, especially because I am convinced not only that the state had not met its burden of proof, but that the defendant was actually innocent of the charges against him.\u00a0 As I wrote a few years ago when referring the case to the Innocence Project:<\/p>\n

He should have been found not guilty, but we hung. \u00a0Instead he was re-tried and sentenced to 35 years to life. \u00a0The prosecution used all of the exculpatory evidence against him by ridiculous “expert” testimony. \u00a0So, for example, the fact that just minutes after the murder he was apprehended separate and apart from the group of kids carrying the murder weapon was “proof” that he was guilty because gang members “always” hand off the gun to someone else to evade prosecution. \u00a0The fact that he had no gunshot residue on him was proof of his guilt, because gang members know how to wipe off residue to make it seem like they are innocent. \u00a0The fact that his prints were not on the gun was proof that he was guilty because gang members know to wipe off the gun to avoid fingerprinting. The fact that the main eyewitness at first did not identify him as the shooter, and only changed his testimony upon re-questioning a day later, was proof that he was guilty, because the witness was obviously too intimidated and scared to identify him the first time. \u00a0Etc. Etc. \u00a0The truth almost certainly is the guy didn’t do it. \u00a0They later found the guys who had been running away with the murder weapon, but by that time the police (Rampart division, I think) had pinned the murder on [the defendant] and persuaded the witnesses to identify him, and so they just left it at that. \u00a0His girlfriend (mother of his 1 year old child) testified for him in the first trial, but didn’t the second time because in the meantime they had prosecuted her for jury tampering for supposedly approaching a juror on my panel and telling her that he was innocent and they knew who did it.<\/p>\n

Do I know for sure that the defendant wasn’t the one who shot the victim in his stomach with a shotgun when he refused to hand over his wallet?\u00a0 No, I don’t.\u00a0 But it didn’t seem very likely to me.\u00a0 Could he have been another one of the kids who surrounded the victim and therefore been guilty of aiding and abetting the crime?\u00a0 Absolutely yes, and I might have even convicted him of that had the prosecutors bothered even to charge him with aiding and abetting, which they did not, probably because the detectives had gotten the main eye-witness, who had been robbed by the gang a minute earlier, to change his story and say that the defendant was the one with the shotgun.<\/p>\n

So I am a bleeding heart liberal.\u00a0 Ok then, here’s another one.\u00a0 I was never convinced that George Zimmerman was guilty of murdering Treyvon Martin.\u00a0 Martin was the poor kid just returning from a convenience store, who got killed by Zimmerman, a vigilante patrolling his neighborhood.\u00a0 Why did I have reasonable doubts that Zimmerman was guilty?\u00a0 Because there was good evidence that Martin had been beating up Zimmerman before he was shot.\u00a0 Quoting from the summary on Wikipedia<\/a>, which comports with what I recall. “The police officers observed that Zimmerman’s back was wet and covered with grass, and he was bleeding from the nose and the back of his head. . . . The only eyewitness to the end of the confrontation stated that Martin was on top of Zimmerman and punching him, while Zimmerman was yelling for help. This witness stated that “the guy on the bottom, who had a red sweater on, was yelling to me, ‘Help! Help!’ and I told him to stop, and I was calling 911.”\u00a0 Zimmerman may have provoked the altercation, but Martin’s friend, who was on the phone with him at the time it began, stated that it was Martin who first\u00a0 said to Zimmerman “What are you following me for?”\u00a0 The witness testimony and the observed injuries makes it hard for me to conclude beyond any reasonable doubt that Zimmerman could not use the defense of self-defense.<\/p>\n

Ok, so my bleeding heart always goes in favor of the defendant no matter who he is.\u00a0 So, what do I think about Judge Kavanaugh?\u00a0 Here was my initial response on Facebook:<\/p>\n

I believe Kavanaugh is lying. He is lying to himself and to us about who he was and is. It is 100% believable that Dr. Ford attended one of those small gatherings with his beer-drinking buddies that Kavanaugh recorded on his calendar (July 1 and August 7 seem the most likely candidates). It is perfectly believable that she was there and left early after an incident. It is absolutely believable that Kavanaugh and Judge might have rough-housed and acted out an attempted rape with her while she was at the party. (I can remain agnostic on whether they intended to go through with it if they had not been interrupted.) And it is certainly believable that for Kavanaugh and Judge the party went on and no part of the evening was memorable to him. Finally, it is absolutely believable that Ford would have remembered the event and been traumatized as she was.<\/span><\/p>\n

What is also 100% certain is that Kavanaugh is purposely lying about the state of the evidence, which he as a judge knows perfectly well how to assess. It is absolutely NOT true, as Kavanaugh claimed over and over again, that “all four of the witnesses said it did not happen.” Saying they have no recollection is NOT the same, as Kavanaugh certainly knows, as saying that something did not happen.<\/p>\n

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Asking if Kavanaugh remembers not remembering something after drinking, as so many Senators tried to do, is stupid. What they should have asked is what he remembers of those parties and if it is possible — possible! — that he might not today remember something that happened that was absolutely untraumatic for him.<\/p>\n

Kavanaugh is most likely purposely lying about the meaning of his yearbook page (Boof, Renate Alumnius, Devil’s Triangle, FFFF, etc.), and it was notable that he would not readily admit that his calendar note about “skis” meant beers (as in the slang term brewskis).<\/p>\n

It is Kavanaugh’s CURRENT lying, to himself and to us, that should bother people about his nomination (beyond all of the rest of the political implications of his judicial views).<\/p>\n

If I were a Senator, I would very easily vote no on his confirmation. This is not what we want in a Supreme Court Justice (nor in a President).<\/p>\n

[For a more thorough discussion of Kavanaugh’s lies and dissembling during his testimony see this excellent article by Nathan J. Robinson<\/a> in Current Affairs.]\u00a0 As I began reading the comments of others, I noticed that many Kavanaugh supporters were arguing that he was innocent or should be presumed innocent, or that the evidence was insufficient to find that he had assaulted Dr. Blasey-Ford.\u00a0 I hadn’t focused so much on the issue of innocence or guilt because, after all, this is not a criminal trial but rather a confirmation proceeding.\u00a0 What matters is not his past, but his present character.\u00a0 Guilt beyond a reasonable doubt really shouldn’t be an issue at all.\u00a0 But of course it is.\u00a0 And then I started thinking about whether the evidence so far would be sufficient to convict Judge Kavanaugh of a sexual assault against Dr. Blasey-Ford.\u00a0 I think it would.<\/p>\n

I have heard people say there is “no evidence” to prove that she was assaulted.\u00a0 That is simply false, because of course testimonial evidence is evidence.\u00a0 Here is the California jury instruction on direct and indirect evidence<\/a>:<\/p>\n

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone\u2019s opinion. Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane flying across the sky, that testimony is direct evidence that a plane few across the sky. Some evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as \u201ccircumstantial evidence.\u201d In either instance, the witness\u2019s testimony is evidence that a jet plane few across the sky. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.<\/p>\n<\/div>\n

Dr. Blasey-Ford gave testimony that would clearly be sufficient to prove a sexual assault.<\/p>\n

In the summer of 1982, like most summers, I spent most every day at the Columbia Country Club in Chevy Chase, Maryland, swimming and practicing diving.\u00a0 One evening that summer, after a day of diving at the club, I attended a small gathering at a house in the Bethesda area. There were four boys I remember specifically being there: Brett Kavanaugh, Mark Judge, a boy named P.J., and one other boy whose name I cannot recall. I also remember my friend Leland attending.\u00a0 I do not remember all of the details of how that gathering came together, but like many that summer, it was almost surely a spur-of-the-moment gathering.\u00a0 I truly wish I could be more helpful with more detailed answers to all of the questions that have and will be asked about how I got to the party and where it took place and so forth. I don\u2019t have all the answers, and I don\u2019t remember as much as I would like to.\u00a0 But the details that \u2014 about that night that bring me here today are the ones I will never forget. They have been seared into my memory, and have haunted me episodically as an adult.<\/p>\n

When I got to the small gathering, people were drinking beer in a small living room\/family room-type area on the first floor of the house. I drank one beer. Brett and Mark were visibly drunk.\u00a0 Early in the evening, I went up a very narrow set of stairs leading from the living room to a second floor to use the restroom. When I got to the top of the stairs, I was pushed from behind into a bedroom across from the bathroom. I couldn\u2019t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them.\u00a0 There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room.<\/p>\n

I was pushed onto the bed, and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled, hoping that someone downstairs might hear me, and I tried to get away from him, but his weight was heavy.\u00a0 Brett groped me and tried to take off my clothes. He had a hard time, because he was very inebriated, and because I was wearing a one-piece bathing suit underneath my clothing.\u00a0 I believed he was going to rape me.<\/p>\n

I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.\u00a0 Both Brett and Mark were drunkenly laughing during the attack. They seemed to be having a very good time.\u00a0 Mark seemed ambivalent, at times urging Brett on and at times telling him to stop. A couple of times, I made eye contact with Mark and thought he might try to help me, but he did not.<\/p>\n

During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. And the last time that he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room.\u00a0 Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I waited until I heard Brett and Mark leave the bedroom, laughing and loudly walk down the narrow stairway, pinballing off the walls on the way down.\u00a0 I waited, and when I did not hear them come back up the stairs, I left the bathroom, went down the same stairwell through the living room, and left the house.\u00a0 I remember being on the street and feeling this enormous sense of relief that I had escaped that house and that Brett and Mark were not coming outside after me.<\/p>\n

A conviction based on this testimony alone would never be reversed for insufficiency of the evidence.\u00a0 There are thousands, perhaps millions of people in jail today based on no more convincing evidence than this.\u00a0 So, the first question to ask yourself is, if you knew nothing more than this one statement, would you find that Judge Kavanaugh is guilty beyond a reasonable doubt?\u00a0 If you find yourself saying no, you aren’t following the instructions.\u00a0 How do I know?\u00a0 Because I told you to assume you knew nothing other than her testimony.\u00a0 In order to cast doubt, you need to look outside her testimony, to your own experience and to other things you know about the matter.\u00a0 And here is where we get back to the original theme of this blog — wishful thinking.\u00a0 Where your mind wanders, how hard it looks for a basis for doubting her testimony, is all about you.<\/p>\n

This type of purposeful intentionality is inherent whenever we weigh evidence, and it is why I was very disappointed with Judge Kavanaugh’s initial Senate testimony before the present controversy.\u00a0 Perhaps he was the only student at Yale Law School who didn’t receive the notoriously theoretical training that Yale was best known for at that time, or perhaps he had a few too many beers along the way, but as a person who has been a judge for twelve years on the U.S. Circuit Court for the District of Columbia, he certainly must know that judges do more than just “call balls and strikes,<\/a>” as Chief Justice John Roberts famously said at his 2005 confirmation hearing.\u00a0 (Kavanaugh said<\/a>: \u201cA good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy.\u201d)\u00a0 Investigating, assembling, arguing and deciding legal and factual issues all require creativity and ideas, and, as the German saying goes, the father of those ideas is the wish, the result you want to achieve.\u00a0 When you have no real desire for one or the other side to win, it is easy to think of judging as just calling balls and strikes (although also baseball umpiring is more complicated than it may seem<\/a>). But when you are deciding issues where you really do care about the result, it is not so easy to make sure that your wish is not controlling the way your mind is working.\u00a0 You have to try to sublimate that wish to another wish (for example, a commitment to stare decisis<\/em><\/a>).<\/p>\n

Back now to the evidence against Judge Kavanaugh.\u00a0 We started with her testimony, which by itself is sufficient for a conviction.\u00a0 The next question is whether there is any contrary evidence, or any other reason to doubt her testimony.\u00a0 In a criminal case, the proof standard is explained as follows in a California jury instruction<\/a>:<\/p>\n

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.<\/p><\/blockquote>\n

Many arguments have been made against Dr. Blasey-Ford’s allegation, but they all can be judged by this reasonable doubt standard.\u00a0 Reasonable doubt is not just any possible doubt.\u00a0 Anyone can come up with possible scenarios.\u00a0 You have to have a reason to believe the scenario is true.<\/p>\n

Having already dispensed with the “no evidence” argument, here are a\u00a0 few of the others.\u00a0 Whether or not you even consider these arguments is already an example of “wishful thinking,” and I admit that some of them did not occur to me, notwithstanding my defense-oriented bias, perhaps because my dislike of Kavanaugh’s political and judicial views made me less inclined to want to find them.<\/p>\n