Ohio Northern University law professor Scott Gerber, a leading academic expert on Clarence Thomas, has an excellent column on the highly partisan pattern of reactions to Clarence Thomas' recent memoir:
... [A]lmost all of the reaction to Justice Thomas's opinions and votes is partisan. As I detailed in First Principles, commentators are either "for" Justice Thomas or "against" him, in the crassest possible sense. The reaction to Justice Thomas's memoir, My Grandfather's Son, continues this disturbing trend. There are exceptions--David J. Garrow's review for Legal Times stands out among them--but they are few and far between.
Gerber provides some excellent examples of highly flawed commentary on Thomas' memoir from both the left and the right. I don't agree with everything Gerber says in the column, but he makes some telling points.
A few weeks ago, I blogged about the way in which people's views on the Clarence Thomas-Anita Hill controversy break down along predictable partisan lines, with nearly all conservatives certain that Thomas was telling the truth, and nearly all liberals just as strongly believing Hill. I suggested that this pattern betrays considerable partisan bias in judgment, since the actual facts of the Hill-Thomas dispute (a classic he said-she said) are murky enough to make it difficult to be sure who was telling the truth; quite possibly both were telling the truth on some points while exaggerating or misreporting others. Absent partisan bias, one would expect to see at least some liberals believing Thomas, some conservatives believing Hill, and a lot more people in both camps uncertain about the truth.
Unfortunately, there is a similar pattern in most commentators' reactions to Thomas' memoir and to his judicial opinions. One should be able to dislike the memoir or disagree with Thomas' jurisprudence without demonizing him. Similarly, one can agree with much of what he writes (as I do), without making absurd claims to the effect that he didn't benefit at all from affirmative action or asserting, as some conservatives have, that Thomas is a victim of racially motivated attacks from the left that rise to the level of lynching and other abuses of the Jim Crow era.
UPDATE: Just to clarify, I do agree with conservatives that some of the attacks on Thomas are racially motivated (Eugene Volokh provides some examples here), and that prominent black conservatives are often subjected to much harsher attack by the left than white ones. However, it is false to claim, as John Yoo (quoted by Gerber), for example has, that "Liberal attacks on Justice Thomas echo segregation-era hate speech," or to assert that these liberal attacks are similar to lynching.
That being said, he sometimes glows in liberals treatment of him. For example, he stated that Columbia wouldn't invite him to speak, but they would invite a dictator. Well . . . Thomas forgot that Columbia had invited him in the past (and he declined).
Yoo is just following Thomas's own pity-party.
Next up: Jewish leader is criticized, compares criticism of himself with Auschwitz.
I suggested that this pattern betrays considerable partisan bias in judgment, since the actual facts of the Hill-Thomas dispute (a classic he said-she said) are murky enough to make it difficult to be sure who was telling the truth; quite possibly both were telling the truth on some points while exaggerating or misreporting others.
Does that mean in every sexual assault case in which it is a he said, she said, a jury shouldn't convict because there's not evidence to believe one party over the other beyond a reasonable doubt?
Yes that is what should happen. Suspend judgment where the evidence is ambiguous. ESPECIALLY in a criminal case, if ALL there is, is an allegation, (no rape kit, no 404b evidence, no event witnesses of any kind--no real reason to believe one over the other) then acquittal is pretty much always in order
If they are treating him differently than they would a white person who said and did the same things he does, that's pretty much the definition of "racially motivated." Your reasoning would also imply that one white person calling another "n-word lover" or "race traitor" was also not racially motivated.
Or is the this another outbreak of the "blacks by definition can't be racist" absurdity?
So a jury should convict when "there's not evidence to believe one party over the other beyond a reasonable doubt"?
So, you contend as an abstract proposition that it's reasonable to assume, where one party makes an criminal accusation and the other denies it, that there is a substantial enough likelihood that the alleged victim is lying to acquit, absent any evidence of motive to lie or any actual evidence that they are lying?
I disagree.
Folks:
I think that it misstates the underlying controversy to say that conservatives believe Thomas and liberals believe Hill. I suspect that many conservatives believe that Hill may have been telling some version of the truth, or at least believe that there was some basis for her accusations, ie. that they weren't _just_ made up to discredit a conservative candidate for the court. The difference is that they do not believe that the alleged conduct should have disqualified him for the court, or they believe that the accusations were rendered and exaggerated solely for a political purpose. Liberals, on the other hand, believe with some justification that this evidence of Thomas' conduct was relevant to the hearings, and that Hill was subjected to an ugly, politically motivated smear campaign by people who don't actually care one way or another whether she was telling the truth or not.
You realize that you are basically saying that unless the DEFENDENT offers me a reason to disbelieve the alleged victim you are going to convict? Do you realize that shifts the burden of proof? And there is always some reason for the alleged victim to lie. If for no other reason than pure and simple revenge, or to avoid the notion that she's a slut...just about anything.
I disagree with your understanding of the applicable standard. Which is why we have a jury system. So that neither of us gets to impose our understanding on others.
You feel that you have a reason to doubt it, because you believe that victims often lie. Assumedly, you require some corroboration of a victim's statement. I disagree, absent some evidence that she is lying. I would note, in defense of my position, that most if not all states have done away with the formal requirement for corroboration that you are trying to reintroduce on the back end. But the main thing is, I have not shifted the burden, and I am not asserting anything that is not perfectly legitimate under the standard. You just disagree, which is fine. But don't accuse me of not understanding the standard, because I do.
So the standard is (should be) when there is a sexual assault charge in which there is no physical evidence, then the burden of proof should be on the defendent? To me the lack of physical evidence would be very telling, and in case where the dispute was whether the intercourse was consentual then I would have to weigh the testimony of both the defendent and the accuser along with the physical evidence. But I don't think I would ever convict unless there was at least some physical evidence to support the charge, or other witnesses.
Do you honestly believe that there is a substantial portion of the female population that is so selfishly committed to the cause of protecting their own reputation for chastity that they would lie to send someone that they once like well enough to consent to sex with to jail?
Also, revenge would certainly be a motive that I would consider, if there was evidence to support the conclusion. But it's sort of a stretch to imagine this population of vengeful women out there, lusting to send men to prison for rape. Of course, it happens. But is there any reason to assume it as a substantial possibility in any given case, absent some evidence that it's relevant?
I just wanted to combat Ilya’s point that because the facts were “murky,” most people ought to stay agnostic on whether Hill’s accusations are true. In other words, the mere fact that most people were not agnostic is not an indication of bias.
It's simply incorrect to say that I am placing any burden whatsoever on the defendant.
We should stop this, though, because it's off topic.
r gould-saltman
The fact that there is no corroboration IS rebuttal evidence that supports the defendants version of the event. Yes, it's true that the prosecution came forward with SOME evidence. But that's the standard for getting to trial. That's not the standard for conviction. The standard for conviction is proof beyond a reasonable doubt. If you have two versions of events, no other evidence and you believe this standard is met just because one person is more believable, you don't understand the reasonable doubt standard. Worse, if you are implying (as your first post seemed to) that all other things being equal (ie., no particular "winner" in the credibility battle) that you would go with the victim over the Defendent, then you definitely don't understand the standard. And I'm sorry if that misinterprets your first post, but that's what it seemed to imply to me.
Playing the victim like he does in the book ruins the game.
Leaving aside credibility issues, I assume.
What you are saying is that any rebuttal evidence, undisturbed, means that there is reasonable doubt. I disagree, and I have done so, repeatedly, without stooping to make the insulting assertion that you (and company) do not understand the standard itself. But you're wrong about this, and I do understand the standard.
Note that I am not saying that it would be illegitimate for you to vote to acquit in our imaginary case. What I'm saying is that the standard does not mechanically require it, as you assert. I would also note, in fairness, that your point about the relevance of lack of physical evidence is well taken, although I would interpret that in a variety of ways depending on the circumstances in a real case.
Now, can we stop. It's generous of our hosts to allow us to have this discussion, but it is off topic.
I didn't say any rebuttal evidence. I limited it to cases where the only evidence for prosecution is the alleged victim's word, and the defendent testifies and denies. In those cases, you have one piece of evidence for the prosecution, two for the defense, and the best thing you can say is that your credibility determination favors the prosecution. That's reasonable doubt. Particularly, as I stated in my last post, if you are voting to convict when the credibility determination is neutral.
What I object to in the first instance is the assertion that anyone who would vote to convict based solely on a contradicted allegation doesn't understand what reasonable doubt means, because this reflects what is to me a misunderstanding of the reasonable doubt standard to require proof of guilt to a mathematical certainty, with the absence of any doubt or contradictory evidence whatsoever. That's just wrong, but it's a common misperception.
More importantly, though, I object to the underlying assumption that women lie about rape so often that the credibility of a rape accuser is inherently suspect and requires corroboration to be accepted.
It's all selection bias, not partisan bias, at least regarding Hill. Gerber duly limits the scope to "all of the reaction". The reaction is an insignificant subset of the opinions of Thomas, further biased by selection for publication.
The vast majority don't care enough to read, let alone review, the Thomas book. The vast majority are quite reasonably uncertain about the Thomas/Hill controversy and remain silent. The people who care enough to express an opinion may show partisan bias, but that's not the same as showing correlation between party and opinion.
It's one thing to hold a grudge. What Clarence Thomas did was took that grudge, nursed it over a decade, got it drunk on Boone's and then titty-fucked it.
He's on the Supreme Court. There is nothing higher in the legal world. He looked terribly petty and very much like he has a persecution complex.
It's all about race.
Racist black people dump on Thomas for not being racist enough to suit them (and get a pass from most of the rest of America).
Then despite your protests to the contrary, you don't understand the concepts of the presumption of innocence or proof beyond a reasonable doubt. The credibility of an accuser is always suspect in any criminal case. There's no special "rape exception" to the burden of proof, where you get to presume that the accuser is telling the truth.
I am not advocating a presumption in favor of the accuser's testimony, or any departure from the standard.
I would imagine if conservatives and liberals were forced to examine the controversy understanding that their conclusions had serious real-life consequences (such as in a jury setting where either Thomas or Hill was facing possible jail-time for perjury), then people wouldn't simply line up in partisan fashion. I recall when one of the Kennedy nephews was on trial for rape, a very feminist friend of mine was practically salivating at the prospect of a conviction. However, by the end of the trial, her tone had changed and she admitted she would have voted to acquit. Whatever ideological rooting interest she brought to the controversy eventually gave way to a more serious concern that justice be done in the specific case at hand. But that sobering element no longer exists in regard to Thomas and Hill. People can choose to believe whatever version of the evidence they want and never have to worry about the consequences of being wrong.
So in your typical he said, she said case, you have a defendant without a huge credibility problem testifying against the victim. The jury doesn’t know either beyond their testimony. Given that, I don’t think a juror could believe, beyond any reasonable doubt, the testimony of one person over the other. I think people (and therefore jurors) are fairly bad about determining whether the average person is lying -- particularly if they have never met the alleged liar before.
Look at it this way. Jurors are often told that something has been proven beyond any reasonable doubt if the proof is of such a convincing character, that they would be willing to “rely and act upon it without hesitation in the most important of their own affairs.” If two people you didn’t know (who didn’t have huge credibility problems) told you conflicting stories, it is going to be the rare case that you will be so certain that one person is right that you would be willing to act upon that person’s word “without hesitation in the most important of your own affairs.” If I didn’t know the person, I’d have a really hard problem not hesitating when somebody else is telling me they’re lying if it truly just comes down to a he said, she said.
Anyway, this is now irrelevant to this post, so I’ll stop.
I think you are mis-stating the previous quotes. Somebody (I thought it was GV)asked whether the accused should be set free in any case that involves he said, she said, without additional evidence. Others said no. I said yes. I didn't say it was limited to he said she said rape cases, though those tend to be the most common rape cases. And when you say we can still see a reasonable difference if the credibility determination is neutral, you are definitely misunderstanding both the beyond a reasonable doubt standard and the burden of proof.
David Nierpoint nailed it. You may be right in a he said she said case if the credibility determination is such that they would be willing to rely on it in their own important affairs. But that will almost NEVER happen. Would you invest $10,000 on that person's say so? If not, you can't vote to convict and also follow the law.
I haven’t read Thomas’s book, so perhaps I have the facts wrong, but in the book reviews I believe I had read that he had ranked 9th or so in GPA in his graduating class from Holy Cross. Given the academic reputation of Holy Cross, this is quite an accomplishment. Without having detailed law school admissions statistics available, I would believe that a student with such an academic record would have no trouble in getting admitted to law school, regardless of affirmative action.
I can also understand how someone with such an academic record would resent it if someone thought that he was admitted to Yale Law School due to affirmative action, not due to his academic record. If Yale Law School did in fact admit him due to affirmative action instead of due to such a stellar academic record, I can see how Thomas would also resent Yale Law School.
I don't think the partisan divide between those who believe Thomas and those who believe Hill should come as any real surprise given that there is nothing at stake in the controversy OTHER THAN partisan rooting interests.
I am impressed with an argument made, if I recall correctly, by Thomas Sowell. Anita Hill originally requested that her accusation remain anonymous, but gave specific details that would easily have allowed Clarence Thomas to have identified her, if the event had actually occurred.
There were only two possible explanations for the request for anonymity - either similar events had occurred with other women and Ms. Hill knew of them, or the events were imaginary. In the first case, there should have been other "victims" willing to testify, but there weren't. So I am compelled to conclude that Anita Hill made up at least those details.
Once I reach that conclusion, it is hard to avoid the conclusion that she made up the whole story. This is also far more consistent with her behavior as observed by every other person working in the same office, many of whom testified on Thomas's behalf.
There are other possibilities for requesting anonymity: She may have assumed (correctly) that Senators and their staffers are not to be trusted to keep secrets. She may have preferred to avoid association with the media slime show that she ended up in the center of. And, whether the allegations were true or not, she may not have wanted to be known to have trashed her former boss and benefactor.
Restating it in that way just proves my point. You asked whether I would bet $10,000 on the outcome that I propose. In the case that I am imagining, I would. The standard does require that level of moral conviction. It does not, however, tell me what to believe. There is no mathematical calculus (allegation + denial + neutral credibility determination (whatever that means) = acquittal). The standard asks me to look to my conscience, having viewed the evidence, and ask myself if I have any genuine doubt.
Your assumption that credibility is evenly balanced is odd to me. A criminal defendant has a large motive to lie (or, at least, to assert innocence without testifying). The alleged victim has gone to the trouble to make a criminal complaint and participate in an investigation and trial. Why, absent evidence calling her testimony in question, do you believe that her testimony is equally credible?
In any case, I think this is somewhat beside the point of my post. Even if it's theoretically possible to determine which of them was lying, the vast majority of people perceive this as a pure "he-said-she-said," unprovable proposition. So, as I attempted to explain earlier, it's a situation where people can choose to believe Thomas or choose to believe Hill and not have to worry that subsequent developments will prove them wrong. Also, any real-world consequences from getting this right are well in the past. Imagine asking people today whether they think Lizzie Borden was guilty. I would imagine almost everyone would be willing to offer an opinion off the cuff, but few if any would give the matter the kind of serious attention it would have warranted in the 1890s. The Anita Hill brouhaha is obviously much closer in time, but I think we're probably at a point with it where it's easier for people to resolve the dispute in accordance with their political attitudes than it would be to undertake a serious review of the facts.
Um. Yeah.
On another note: I'm conservative. I watched the Thomas hearings with a sick compulsion. And I still have no idea what happened between Thomas and Hill. Hill had significant credibility, and while there were strong prtisan/ideological reasons to lie about Thomas, in a way that hurt him, there's no evidence that these reason were /hers/.
On the other hand--and just as one factor in Thomas's favor--men who sexually harass women at the workplace are habitual offenders. There's no evidence that I'm aware of that Thomas was ever accused by any other colleague of making lewd comments or talking about naughty movies. (Look at Packwood or Bill Clinton for contemporary examples of his behavior by pblic officials.)
My theory: She was sexually harassed by someone who /looked like/ Thomas, and thought she was telling the truth. Otherwise, I'm back to dead-center on this one.
Well, a "classic" he said-she said is when the evidence doesn't actually preponderate in favor of one story over the other.
Here, on the other hand, we have two other women who stated that Thomas had harassed them, with a third now claiming she was cowed out of testifying by David Brock.
We also have four people who testified that Hill had been upset at the time by Thomas' alleged harassment.
There's also an inherent asymmetry in motives. Thomas had accepted the nomination to one of the most powerful positions in U.S. government; if Hill's accusations were true, he'd have to lie if he wanted the job. There is no natural, corresponding story to tell in the case of Hill. She had nothing to gain by coming to Capitol Hill to tell lies about Thomas under oath, and much to lose. She never filed a lawsuit, and other popular "theories" popular among conservatives (that Hill was a publicity hound or just plain psycho) obviously require an extra quantum of speculation. Whatever extrinsic character evidence there is against both of them is at best a wash.
In sum, this is not a classic he-said she-said; to the contrary, there is a very strong circumstantial case that Hill was telling the truth.
I didn't say whether you would bet $10,000 on whether or not she was raped. I asked if you would invest $10,000 on the alleged victim's say so that it's a good investment. Mr. Nierpont, again, nailed the problems with your assumption. If you assume that a criminal defendant has a reason to lie, you are not engagin in the PRESUMPTION of innocence. Remember, the standard is not we start out even and see who is most convincing. The starting point is this person is innocent and wrongly accused. Then the STATE has to show beyond a reasonable doubt that this is the right person and they committed each and every element of the crime alleged.
The notion that I assume a neutral credibility determination is just flat out wrong. I was saying in cases where you, the juror, have a neutral credibility determination (ie., neither one strikes you as particularly honest or dishonest) you should vote to acquit. You are now saying that you don't start out with a presumption of innocence because you are subjecting the criminal defendant to a presumption that he has a reason to lie. But you are supposed to start out with the presumption that he's innocent.
"False"? Remember, it was Clarence Thomas who said that strong criticism of him during confirmation was a "high tech lynching." So even you are admitting that at least part of his testimony was objectively not true.
quite possibly both [Clarence Thomas and Anita Hill] were telling the truth on some points while exaggerating or misreporting others.
So you concede that there is at least a decent possiblity that Clarence Thomas perjured his way onto the bench. And if both Hill and Thomas equally shaded the truth, remember that Hill moved back to her academic career, while Thomas took a position of enormous trust. If a pox (even a mild one) goes on both their houses, Thomas still shouldn't be on the Court.