The Magic and The Guilty Man

Much like cops, who believe they have a magical ability to tell when someone is lying, prosecutors similarly believe they possess that skill.

The prosecutor, Stacey Tenney, later told me that she knew Michelle was lying. Of course she was lying.

People often wonder why, after DNA proves a defendant innocent, prosecutors maintain their certainty of guilt, often using it to justify their hiding the Brady or fighting to the end to prevent the DNA from being tested after a conviction. It’s because they’re magic. They know. They’re not going to let that filthy scum get off just because of . . . evidence. He’s guilty. They just know it.

The New York Times brings that same delusion to domestic abuse, with its headline writer asking perhaps the dumbest possible question.

They don’t, of course. The “help” of the murder victim is critical, as the dead body is almost invariably the primary evidence. Add to that the obvious fact that a dead body provides proof where a live witness who denies that a crime was committed does not. This is a headlines custom-made for fools, and to that extent, it’s the perfect start to literature prof Rachel Louise Snyder’s argument in favor of “evidence-based prosecution” of domestic violence.

Domestic violence victims recant their testimony as much as 70 percent of the time, according to some estimates. People like Michelle do so to protect themselves against their abusers’ retaliation when they feel that authorities cannot or will not help.

The “Michelle” referenced in the quote comes from the required lead-in anecdote, the sad story that sets the tone of the op-ed when neither facts nor argument will bring the reader to the correct emotional bias. Sometimes “victims” recant out of fear, sometimes out of financial necessity. Other times, they recant because they weren’t victims, but abusers who called the cops to teach their victim a lesson. Then, there are times when someone recants because it was just an out-and-out lie. The trick is distinguishing which is which. Snyder doesn’t care about the trick, because she’s out to get her man.

Once they recant, they’re often proved right. Authorities in many jurisdictions still believe that without victim cooperation, there’s no reason to prosecute. If a victim doesn’t care, the logic goes, why should anyone else?

Whose logic is that? The “logic” of a cynical literature prof, who can’t conceive of how any person can recant an accusation for real reasons, and any prosecutor deciding to dismiss might do so because no crime occurred, a failure of evidence, the possibility that their victim isn’t a victim, their case is just another load of crap to be trashed.

But then, what of the victims (which Snyder supposes to invariably be women, because who else could be a victim?) who were abused and recanted for the wrong reasons? She extols the birth of “evidence-based prosecution,” which is never quite defined but appears to be prosecution based upon extrinsic evidence without a witness, even though one exists.

[San Diego prosecutor Casey] Gwinn began ordering 911 tapes in all domestic violence cases. He asked the police to take pictures of everything: the crime scene, the victims, even the perpetrators raging in the backs of police vehicles. Any possible shred of evidence that existed, Mr. Gwinn wanted.

That they didn’t collect secondary evidence is a reflection of police incompetence, but it’s still just secondary evidence of what might be a crime, or not. But absent primary evidence, that it was admissible at all reflects the bias of system. But then, that horrible Justice Scalia and his complicit justices decided Crawford, requiring the prosecution to put their witness on the stand to be confronted. That ruined everything.

And there is still some room for state courts to determine admissible evidence. A new set of cases, Hammon v. Washington and Davis v. Washington, have helped clarify what testimonial statements — ruled inadmissible under Crawford — actually mean. Emergency calls, for example, may or may not be allowed, and body camera footage, which is more and more common, bolsters many domestic violence cases.

But prosecuting in the post-Crawford era requires “creativity, ingenuity, hard work and dedication,” said Teresa Garvey, a former New Jersey prosecutor and attorney adviser at Aequitas, a nonprofit organization that helps prosecutors with gender-based violence.

Is the lack of evidence, the failure of constitutionally-required confrontation, a technicality to be circumvented? Do they disclose the Brady, that the witness denied that a crime occurred, or is that just another technicality to be hidden with “creativity, ingenuity” and a lot of unlawful dedication? In cases of “gender-based violence,” are there different rules from all other prosecutions so that they can make sure their perp gets convicted, no matter what?

In other words, “the barrier to evidence-based prosecution is not about evidence,” as Mr. Gwinn told me not long ago. It never really was. It’s about the kind of violence that is deemed worthy of state attention — like school shootings — and the kind that isn’t, like intimate partner violence. It’s about how we understand, or more often fail to understand, the intersections between family violence and nearly every other social issue we face in this country — homelessness, poverty, mental health, gender equality and yes, mass shootings.

As technicalities as due process and confrontation have been denigrated in a concerted effort to separate crimes involving women from all other offenses, and reduce the various burdens by resort to sad stories and rationalizations about how this isn’t about evidence but oppression, the purpose is to shift perspective away from the belief that no one should be convicted except upon proof beyond a reasonable doubt to no one should be acquitted when the victim is female, because of the intersections.

“It’s not about the viability of winning these cases,” Mr. Gwinn said. “It’s about cultural norms and values. And at the heart of it is a stunning amount of misogyny.”

A prosecutor blames misogyny, well aware how that will play upon the frayed emotions of the unduly passionate. It’s not about evidence, about confrontation, about Brady, about constitutional rights and burdens of proof, because then Gwinn loses, and that should never happen because he knows the defendant is guilty, evidence be damned. He’s got the magic.

13 thoughts on “The Magic and The Guilty Man

  1. Dan

    “Evidence-based prosecution”? I thought prosecutions (indeed, all trials, whether civil or criminal) were already evidence-based. What is this moron nattering on about?

  2. mer

    “We know he’s guilty. Maybe not this time but we just didn’t catch him last time”

  3. Gregory Smith

    “Believe all women”, except when she recants a DV allegation. Then she’s a lying sack of s**t who will be prosecuted to the full extent of the law. Unless of course she recants her recantation. Then she’s a helpless victim. Everything is so simple when you are a prosecutor.

  4. wilbur

    A murder case is the easiest case to try, if you have a clue about what you’re doing.

    You actually get a full investigation, by those considered the best detectives. You’re called to the scene immediately after the discovery of the homicide, a huge advantage. And you don’t have to put the victim on the stand, which is often a plus.

    1. SHG Post author

      Ironically, if the complaint is that assaults aren’t adequately investigated, they ought to take a look at larcenies. But even murders, despite the obvious dead body, only get closed if they trip over the perp.

      1. Pedantic Grammar Police

        My favorite murder case is the one solved 7 years later because the killer (nickname “Chopper”) had a detailed illustration of the murder scene tattooed on his chest, including a helicopter raining bullets down on the victim.

  5. Pedantic Grammar Police

    Your position seemed reasonable until I read the editorial. After reading that he killed his wife and kids 2 months later, I had to change my mind. Only a heartless monster would fail to realize that the tragic results of this one recantation mean that no recantation can ever be believed again. Don’t you understand, that we must prevent every bad thing that happens (to a woman or other marginalized person) from ever happening again? It’s exhausting having to explain this. Law and reason must be abandoned whenever a single case leads to a horrible result that makes us feel sad. If the evil Supreme Court rules against our feelings then we must end-run around the ruling.

    “…the case that nearly crushed two decades of progress.” Progress toward what, you might ask? That’s because you’re a woman-hating shitlord.

    “the barrier to evidence-based prosecution is not about evidence.” Obviously it’s about protecting guilty men from punishment for the crime that they might be guilty of.

    “It’s about cultural norms and values. And at the heart of it is a stunning amount of misogyny.”

    I await your apology, you shitlord!

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