Do we have a government of laws?

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It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
—Aristotle
Politics 3.16

“If we desire respect for the law, we must first make the law respectable.”
—Louis D. Brandeis
A Treasury of Jewish Quotations,
ed. Joseph L. Baron
Rowman & Littlefield (1996), p. 269

“…Failing the Tao, man resorts to Virtue
Failing Virtue, man resorts to humanity
Failing humanity, man resorts to morality
Failing morality, man resorts to ceremony
Now, ceremony is the merest husk of faith and loyalty;
It is the beginning of all confusion and disorder…
Therefore, the full-grown man sets his heart upon
the substance rather than the husk…”
—Tao Te Ching #38
Translation John C. H. Wu

On Feb 12, 2000, Judge Bill Callahan and I gave a presentation on child custody cases and custody evaluations to the joint meeting of the Dearborn/ Downriver Bar Association. Before the meeting started a few of us were standing around chatting about law in general and mental health forensics in specific and we got on the subject of false allegations of abuse; something that comes up regularly in custody cases. I remember raising the question, “Why don’t prosecutors prosecute obviously false allegations of abuse?” One of the female lawyers responded with shock and dismay at the question, “Oh no! They couldn’t do that; it could keep real victims from coming forward!” Think about that for a moment—we don’t want to prosecute criminal behavior because it could keep people from filing a legitimate complaint! She might have added that we know from anecdotal evidence that there are more unreported complaints than there are false allegations.1
In the ensuing years I have often thought about that brief exchange. My response at the time was shocked alarm. The obvious inference was that those accused of sexual abuse should be charged and prosecuted to the full extent of the law, and if found guilty, punished to the full extent of the law — life imprisonment and/or a lifetime on the sex offender registry — for the obvious reason that the crime is so heinous and the victims so vulnerable they are deserving of special consideration. But, by contrast, the crime of falsely accusing someone of being a sexual predator is somehow not so heinous and the victims not so deserving of protection. In essence, it was more important to get the bad men who did this than it was to protect the good men who didn’t. The idea that this position declared open season on any man who was resented by a disgruntled ex or a child who had her phone taken away from her as punishment for misbehavior either had not occurred to the lawyer, or it was of no consequence. Men had long been privileged by the patriarchal system and it was now their turn to sit at the back of the bus.

I was about to give a presentation and did not have time to get into an extended discussion on the issue. But the politics of the matter were so obviously more important than the law to the person offering the opinion that any response of mine would have fallen on deaf ears. Moreover, although we were talking about hypotheticals—not a case where she had a dog in the fight and therefore had to take a position—she had blithely stated that we should not prosecute people who, in many cases, had made not just one but many false allegations of abuse, because real victims of abuse would then be reluctant to make a true allegation. If you punish people for lying, it will be a deterrent to other people telling the truth, so goes the “logic” of this argument.

Since then I have heard this argument many times, and I also recall having had a similar conversation with Nancy Diehl, who at the time was heading up the sex crimes prosecution division of the Wayne County Prosecutors Office. Her response to the same question was, “Well, that would involve trying to prove that something didn’t happen. It’s pretty hard to prove that the person is lying and that the abuse didn’t happen.” I responded that this was the position of anyone against whom a false allegation of abuse had been made; they had to prove that something didn’t happen, when, in fact, the burden of proof was supposed to be on the State. But the antithetical nature of their arguments to due process of law is not apparent to those with a victim mentality. The only thing that matters is protecting the “victim” from the predator. Protecting the accused from the State is no longer a concern, unless you are on the protected species list.

Therefore, if (as often happens) the State prosecutor has the option to assume that the accuser is telling the truth because they chose to take that position on political grounds, they have essentially reversed the process and turned the law on its head by shifting the burden of proof to the accused, who must then prove they did not commit the crime of abuse for which there is no evidence but “he said, she said.” The burden of proof is then the responsibility of the defense, not just euphemistically, but as a matter of fact. By indicting and prosecuting on the basis of someone’s word, the prosecutor has chosen to bring the full power of the State to bear on someone who must then prove something that a person responsible for prosecuting these crimes had told me was extremely difficult to prove — that the event(s) didn’t happen.

The law is structured the way it is because it is presumed that a greater injustice is done by imprisoning the innocent than by allowing the guilty to go free.2 Most of us would agree that neither of these options is desirable, but the consensus of those countries founded on English Common Law is that if there is any reasonable doubt, it should favor the defendant in a criminal case. The above outlined procedure refutes this principle when it shifts the burden of proof to the defense. Add to this that prosecutors will strive to make a case with very poor or contradictory evidence, and you have a system ripe for miscarriages of justice.

I have worked on cases where: 1) A boy told the forensic interviewer he was ten years old at the beginning of the interview when he was actually five; 2) Where an obese girl told the forensic interviewer that her adoptive father put his hand down her pants while facing her and while she was wearing jeans, sitting up straight on a couch with her legs bent (Try that one!); 3) Where the child said in her forensic interview that her mother told her what to say; and, 4) Where a prosecutor argued to keep out of evidence the fact that the child’s mother had attempted to kill her boyfriend’s new girlfriend before she discovered that he had abused her child! In two of these cases the jury convicted, which is proof to me that many prosecutors don’t care whether the accused is guilty and jurors have a naive faith in the system.

There have been other cases on which I have served as an expert and in which the evidence was poor or contradictory, but that did not stop prosecution from going forward. I often quote my friend, Matthew Zick, who says that, “In a criminal sexual conduct case, the defendant is guilty until proven innocent beyond all doubt.” The reality of this statement is very obvious to anyone who’s ever worked on the defense side of a CSC case, and maybe to some of those on the prosecution side as well. However, I have worked on cases with former-prosecutors-turned-defense-lawyers who didn’t seem to get it; sometimes resting their case without putting their client on the stand because they believed the burden of proof belonged to the prosecution. The jury rarely sees it that way; they need an alternative explanation. And the prosecution get the last word.

There are prosecutor’s organizations that are dedicated entirely to “special” victims—that is to say, prosecuting sex crimes and crimes against women,3 as if these offenses were somehow more serious than other crimes and their victims more deserving of justice. Well, I guess they are; we don’t have a central registry for armed robbers, murderers or people convicted of stealing the pensions of retirees. But what is most significant is that the way we view both the legal and the political process has changed, imperceptibly at first, and now openly and blatantly, it is considered acceptable to express the belief that the time honored principles of due process are no longer serviceable because of the nature and identity of the victims and the crimes.

We have substituted political correctness — the notion that politically satisfying outcome is more important than truth seeking — for the centuries-long evolution of law and politics that is the foundation of western civilization. And it is important to note that law and due process developed simultaneously; there could be neither parliamentary democracy nor common law without the Magna Carta, the first document to challenge the absolute power of a monarchy, and to endow — at first the nobles, then eventually everyone else — with the guarantee of a fair trial. If it didn’t always work perfectly, at least there was reason to hope it would in your case.

Now, instead of innocent until proven guilty, we are told, “believe the children”; instead of proof beyond a reasonable doubt, it is, “he said, she said”; instead of trying the case in court, many times the cases are tried and verdicts rendered by the press. Inspired by the noble ambition to speak for the voiceless, but lacking a rudimentary understanding of due process, reporters poison the jury pool with emotional arguments in a rush to judgment that presumes the innocent would never be accused. Instead of offering sound legal arguments, prosecutors often pander to the jury’s sympathy for the child and the outrage against yet another monstrous male who has committed yet another unspeakable act. Doctors get on the stand to say there is no medical evidence, then try to sneak in their not-according-to-protocol interviews in the hope that jurors will believe them because of their credentials, and they often do.

At the same time, the interests of the mother, which were always assumed to have been synonymous with the interests of the children, have become even more conflated. This is because we live in an era when women do everything better than men; they are inherently more moral than, and just as capable of physical challenges as men when they put their minds to it. To question the prevailing wisdom is to defend the indefensible—to question absolute truth. Anything coming from the mother or the female caregiver can be construed as coming from the child and very seat of virtue.

The inevitable result of this groupthink that has literally saturated our culture is that there are many innocent people who are prosecuted for crimes which not only they did not commit, but for which there is no evidence that anyone committed. For purely political reasons, thousands of people have gone to prison for crimes for which there is no evidence, helping to swell the prison population 7.67 times in the last 40 years.4 5 6

And to what end? For many who push this maliciously destructive ideology it is revenge against the “patriarchy” and “rape culture,” for which there is no empirical evidence, but which does have the constant unsupported rantings of the far Left media (which is most of the media). There are also what passes for scientific writing in journals that, by their very titles, presume the guilt of all accused. They solicit papers from those who are like-minded and have reached the same conclusions, in many cases without any real science to support them.

A good example of this phenomenon is The Child Sexual Abuse Accommodation Syndrome by Roland Summit, published in the Journal of Child Abuse Neglect (1983). 7 (2): 177–93, which even Summit acknowledges is not a scientific study, but merely the summary of his experience, and for which there is no scientific support. His theory is accepted by neither the American Psychological Association, nor the American Psychiatric Association. Nevertheless, this article has been cited by 110 subsequent articles as an authoritative source. Both convincing and unconvincing reports of abuse are evidence of abuse according to Summit, as are both allegations and retraction of allegations. How convenient. If everything is evidence, everyone accused is guilty.

This is what passes for science and this “science” is what passes for law in the land of the politically correct. The purpose of many purported scientific journals, like the mass media, is just to repeat the same talking points over and over until the brainwashing is complete and politically correct theories are accepted by sheer volume and repetition. The invective toward any disagreement is ever bolder and more vicious. News outlets that were once respected as providing objective and truthful accounts of events have descended into the black hole of reporting only what they agree with and that in ever shriller tones. Spin has given way to blatant propaganda; reasoned argument to slur and name-calling.

Recently, the Washington Post — that noble publication that blew the lid off Watergate — ran an article titled, “Why Can’t We Hate Men?”7 by Suzanna Danuta Walters, a professor of sociology, director of the Women’s, Gender, and Sexuality Studies Program at Northeastern University, and the editor of the gender studies journal “Signs.” As the title suggests, the piece says that women are justified in hating men because, in all objectivity, men are the cause of all the world’s problems, for which, of course, women have born all the consequences.

She also suggests that all men should step down from all positions of power and let women run things because men are not only morally inferior, but also inept. Underneath the paper’s title is its motto: “Democracy Dies in Darkness.” So I ask, is this opinion “light?” Is there any attempt at a rational argument here? Is there any possibility that the article would be printed if it targeted any other group than men? Is there any reasonable response to such allegations? This is not an argument, it is a blatant sexist smear, an unmasked and unapologetic prejudice and virulently sexist hatred spewed by someone passing herself off as an educator. Okay for her side, not okay for mine.

Perhaps more importantly, is there any rational response to someone who takes the positon that, “I am moral by virtue of my sex and you are not by virtue of yours?” Is there any way this insanity will die out of its own accord, or is it merely emboldened by accommodation? Sarah Jeong, the once reputable New York Times’ newest editorial writer, has tweeted: “Trump is Hitler,” but has Trump said that any group of American citizens should be assigned to second class status? Has he denigrated any group of people other than those in the country illegally? She has also tweeted, “F—- the police,” “cops are a—holes,” “white men-are-”bull——”-and-‘dogs.’”8 How does a major American newspaper defend that?

Could any Right Wing writer send out a tweet like that and keep a job? Kevin Williamson was hired and then quickly unhired by the Atlantic over his past comments, such as equating abortion and murder. Rosanne Barr was fired for saying that a black person looked like a monkey. Is that worse than what Jeong gets a pass on? The truth is, that we have given up the ideal of equality before the law — the ideal for which the Left was once the conscience of the nation.

Does the ruling class really have to wonder why Donald Trump was elected? Gene Siskel was once asked how he could stand working with an asshole like Roger Ebert, with whom he had a very successful TV program reviewing film releases. Siskel responded, “Well, he may be an asshole, but he’s my asshole.”9 How many Trump supporters feel that way? If racism and sexism are not only tolerated and encouraged on one side and condemned on the other, what is the alternative?

The very worst result of this kind of mass indoctrination — that sacred cows are allowed to spew hatred and venom and even given a respectable platform to do it, and that the designated jerks in this scenario are not only deserving of disrespect from these sacred cows, but punished for responding in kind — is that what permeates our culture inevitably finds its way into our legal system.
Hence, we see the justification for the views expressed at the beginning of this piece; that sacred cows are to be protected by the justice system, but that those accused by the sacred cows are not. The great irony of this way of thinking is that those most likely to be victimized by this new standard of justice are those who cannot afford the quality legal representation necessary, or the expert with sufficient knowledge, to protect them from baseless charges that in most cases are generated by resentment, contempt, and the almost certain knowledge that there will be no consequences, even if the false accusers are exposed in court. Of the four people I worked for who in my mind were clearly innocent, but who went to prison for sex abuse, two were Hispanic and two were African-American. The same strange fruit still grows from trees, not just in the south, but in the north. The victims of lynching were never women; they were men:


“Southern trees bear strange frui
Blood on the leaves and blood at the root
Black bodies swinging in the southern breeze
Strange fruit hanging from the poplar trees
Pastoral scene of the gallant south
The bulging eyes and the twisted mouth
Scent of magnolias, sweet and fresh
Then the sudden smell of burning flesh
Here is fruit for the crows to pluck
For the rain to gather, for the wind to suck
For the sun to rot, for the trees to drop
Here is a strange and bitter crop”10

But it does not stop at the level of State courts; the Obama DOJ and the FBI have admitted spying on the Trump campaign, and colluding with the Clinton Campaign as they funneled money through a law firm to pay English spy Christopher Steel (at the same time as he was being paid by the FBI), to collude with Russian spies to manufacture evidence, which was then taken to the FISA Court to obtain a warrant to wiretap the opposition party in a national election. They then used this “evidence” — the Steele Dossier — which they knew was bogus, to appoint a prosecutor to find a reason to remove an elected president from office under the pretense that he had colluded with Russia. Is this evidence of a government of laws? Are we that Machiavellian that we now accept that the ends justify the means? Apparently so, it is the inevitable result of abandoning our principles of due process.

Nor is it only the Democrat party that uses these tactics. Republicans did the same thing to Bill Clinton. The great irony is that the Bush II invasion of Iraq and Obama’s suspension of due process for men on college campuses were far more serious abuses of power, but Obama was nothing if not smooth, and Bush apparently kept his sexual impulses under control, so they did not leave themselves open to exploitation by those with a will to power, but no will — or even the ability — to govern.

The most significant concern for me is that the criminalization of politics has corresponded with the weaponization of the law and the elevation of the prosecutorial class as a legitimate substitute for democratic process to neutralize political opponents (read: enemies). Absolute prosecutorial discretion also includes the power to exonerate your allies merely by making a decision not charge them with crimes; by using sleight of hand tactics like changing the wording of your findings. In this way the prosecutor wields absolute power, corrupting absolutely. No matter how blatant and public the crimes of those he favors (destroying evidence or making false allegations of criminal behavior by others), they get a pass.

And yet another tool at their disposal is that it is a crime to make a false statement to police or the FBI, but not for the police to make a false statement to a suspect. Moreover, who makes the decision about what constitutes a false statement? Of course, the one with absolute power, the prosecutor. It was the intention of our founding fathers to set up a republic, not a police state, but this criminal misuse of the courts is pervasive from the top to the bottom. Law without morality is not justice, any more than presenting only one side of a story is journalism. Law without morality is a bludgeon; one side of a story is the empty sound of one hand clapping.

—————

1 Bureau of Justice Statistics, Campus Climate Survey Validation Study January 2016, Christopher Krebs, Christine Lindquist, Marcus Berzofsky, Bonnie Shook-Sa, and Kimberly Peterson, P. 76: “The same estimate from a previous study (Krebs et al., 2009) has been used widely to suggest that 1 in 5 undergraduate females will be sexually assaulted while in college. The comparable CCSVS estimates, which are shown in Appendix E-9 along with their standard errors, varied across schools. Across the four-year schools in the CCSVS, over a quarter of senior females (25.1%) reported that they had experienced unwanted/nonconsensual sexual contact since entering college.” https://www.bjs.gov/content/pub/pdf/ccsvsftr.pdf

2 “It is better that ten guilty persons escape than that one innocent suffer”, ...as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s…The principle is much older than Blackstone’s formulation, being closely tied to the presumption of innocence in criminal trials. A vaguely similar principle, echoing the number ten and the idea that it would be preferable that many guilty people escape consequences than a few innocents suffer them, appears as early as the narrative of the Cities of the Plain in Genesis (at 18:23-32) https://en.wikipedia. org/wiki/ Blackstone%27s_formulation: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? ... What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

3 AEQUITAS, THE PROSECUTORS’ RESOURCE ON VIOLENCE AGAINST WOMEN, http://www.aequitas resource.org/ “Aequitas’ mission is to improve the quality of justice in sexual violence, intimate partner violence, stalking and human trafficking cases by developing, evaluating and refining prosecution practices that increase victim safety and offender accountability.” And this one: “THE NATIONAL CENTER FOR THE PROSECUTION OF VIOLENCE AGAINST WOMEN https:// www.nsvrc.org/organizations/national-center-prosecution-violence-against-women “(NCPVAW) exists to serve prosecutors, members of the prosecution team and other allied professionals as they strive to deliver justice to all survivors of domestic violence / dating violence, sexual violence, and stalking and to hold criminals accountable.”

4 Mass Incarceration: The Whole Pie, https://www.prisonpolicy.org/reports/pie2018.html “The number of State and federal facilities is from Census of State and Federal Correctional Facilities, 2005, the number of youth facilities is from page 3 of Juvenile Residential Facility Census, 2014, the number of jails from Census of Jails: Population Changes, 1999-2013 and the number of Indian Country jails from Jails in Indian Country, 2016. We aren’t currently aware of a good source of data on the number of the facilities of the other types.”

5 BBC News, World Prison Populations, U.S. Prison Population is world’s largest at 2,193,798 (including only penitentiaries, not jails or juvenile detention facilities) http://news. bbc. co.uk/2/shared/spl/hi/uk/06/ prisons/html/nn2page1.stm,

6 Bureau of Justice Statistics, https://www.bjs.gov/content/pub/pdf/p15.pdf

7 Why Can’t We Hate Men? Susan Danuta Walters, The Washington Post, 6/8/1988,
https://www.washingtonpost.com/opinions/why-cant-we-hate-men/2018/06/ 08/f1a3a8e0-6451-11e8-a69c-944de 66d9e7_story. html?noredirect=on&utm_term=.c411339c1b8e

8 8/8/2018, More online ugliness: NY Times writer compared Trump and Hitler, Howard Kurtz, http://www.fox news.com/politics/2018/08/08/more-online-ugliness-ny-times-writer-compared-trump-and-hitler.html

9 Life Itself (2014), a documentary about Roger Ebert, this quote is related by Gene Siskel’s widow in an interview.

10 Songwriters: Lewis Allan / Maurice Pearl / Dwayne P Wiggins, Strange Fruit lyrics © Warner/Chappell Music, Inc.

 

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