It Was The Best Of Times, It Was The Worst Of Times

The Los Angeles Times

It “got” it. Regardless of the hysteria, the lies, the emotions and the mindless outrage over the lenient Brock Turner sentence, the LA Times recognized that the legacy of Stanford non-lawyer lawprof Michelle Dauber’s war against Judge Aaron Persky would be to strike fear in the hearts of judges should they show more mercy than the mob would allow.

The problem is not what happened to Persky. The problem is how his recall will affect all the other California trial judges, some 1,500 of them, who now may be more likely to craft their sentencing decisions to take into account the degree to which an angry public wants the defendant punished.

Being California-centric, it focused only on its own judges. And indeed, the message was heard, loud and clear, throughout California. The idea of recall because a lawful sentence that fell short of the angry women’s demand for retribution would have seemed ridiculous before. That was no longer the case. #ThemToo.

No doubt most judges will claim that public reaction will have no bearing on their decisions, which they will continue to make in good faith without concern for their continued employment. And perhaps they will believe that about themselves, and perhaps some of them will manage to live by that rule.

The problem is that sentencing is an act of discretion. There is a spectrum of harshness and leniency, and a sentence anywhere along that spectrum the law provides is left to the judge. Mercy? Maybe, but maybe not. It’s not as if anybody can see the mechanics going on in a judge’s head as she decided where along the spectrum to fix sentence. Maybe the judge can’t quite see the influences weighed either and believes they are imposing the right sentence even if there’s a tacit nudge against mercy.

But as bad as the Persky recall was, as damaging to the fabric of an independent judiciary, to the ability of judges to wield their authority without fear or favor, it wasn’t done yet. He’s off the bench, the recall won, but once the mob cranks up its outrage machine, it’s hard to stop. You can’t reason with the mob. The mob can’t reason with itself. If Persky was evil on the bench, then he’s evil off and must be destroyed.

Hear that judges? It’s not just your robe at risk. It’s your life.

A few questions for the spineless school bureaucrats who just fired tennis coach Aaron Persky because of a controversial sentence he handed down when he was a judge:

You do realize, don’t you, that Persky was the judge in the 2015 sex assault case against Brock Turner, and not the attacker himself? And that Persky’s sentence of six months, outrageously and unacceptably lenient though it was, comported with the law as it existed on the books at the time and a recommendation from the Santa Clara County Probation Department? And that even though voters ousted Persky from the bench for the ruling, he hadn’t been implicated in any misconduct, malpractice or, certainly, crime?

We ask, because Persky’s firing as junior varsity tennis coach at Lynbrook High School in San Jose is so ridiculously gratuitous, cowardly and off-base. The action helps turn the quest for justice into mob rule, the law into a popularity contest and the independent judiciary into an endangered species.

The effort to put into words why the removal of Persky as a JV tennis coach is irrational is hard. It’s doubly hard when it’s necessary to do so using language that won’t offend anyone and give rise to responsive cries of misogyny or rape apology. It’s not as if the LA Times can come out and say, openly and clearly, that the Dauber Gang are unhinged and disingenuous, a dangerous group of empowered morons who wield the most potent weapon of the day, accusations, with reckless abandon.

And yet, the LA Times took an enormous risk, doing the best they could with the words they’re allowed, to call out the astoundingly crazy extension of guilt from Turner to Persky the judge, to Persky the person, as if Judge Persky would shrug off, or perhaps even enable, some rapist raping with rapey abandon the women on the JV team on the tennis court. It’s nuts. Completely bonkers. Utterly irrational. And the LA Times said so, as much as it could.

The New York Times

It said “News Analysis” at the top, but it was posted in the op-ed section. In the olden days, news and editorial had a Chinese wall between them, but since it’s politically incorrect to have Chinese walls anymore, they’re now apparently one and the same.

During the winter of her freshman year, a drunken dormitory party unsettled her deeply. She and some classmates had been drinking heavily when, she says, a freshman named Brett Kavanaugh pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it. Some of the onlookers, who had been passing around a fake penis earlier in the evening, laughed.

What one wouldn’t necessarily expect from this otherwise straightforward exposition of an allegation that right-minded folks must believe, is how much work “she says” is doing in there. Except that wouldn’t be clear from the op-ed, which is an artful demonstration of rhetorical weaseling, threading between wiggle words and the absence of evidence to reach its purpose, condemnation by innuendo.

At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.

Heard about the incident is a long way from evidence. Heard about the incident isn’t that Kavanaugh did it, but that an incident occurred. Heard about the incident suggests it was a last minute fabrication to be used against Kavanaugh, but nowhere does it say that even Ramirez, no less anyone else, actually says Kavanaugh did it.

Ms. Ramirez’s legal team gave the F.B.I. a list of at least 25 individuals who may have had corroborating evidence. But the bureau — in its supplemental background investigation — interviewed none of them, though we learned many of these potential witnesses tried in vain to reach the F.B.I. on their own.

May have had? That means may not have had as well, which means there is nothing there until there is something there. Corroborating? So in a room with witnesses, there isn’t a witness coming forward who claims that it happened, but just corroborating witnesses, such as people to whom a story was told afterward.

But that’s just on the face of the op-ed, given its best possible spin. Then came the weight carried by “she says” in the correction.

Editors’ Note: 

An earlier version of this article, which was adapted from a forthcoming book, did not include one element of the book’s account regarding an assertion by a Yale classmate that friends of Brett Kavanaugh pushed his penis into the hand of a female student at a drunken dorm party. The book reports that the female student declined to be interviewed and friends say that she does not recall the incident. That information has been added to the article.

The meaning of “she says” is that she didn’t say, she doesn’t recall, and there isn’t a witness to this event, presented as if it happened and as if the penis thruster is now a Supreme Court justice, when it’s no more than creative writing at this point.

Whether the next job is tennis coach to a high school JV team or as an Associate Justice of the Supreme Court of the United States, there will be consequences from the outraged mob. How the hysteria is addressed is a sign of the Times.

9 thoughts on “It Was The Best Of Times, It Was The Worst Of Times

  1. Kirk A Taylor

    As a long-time, non lawyer reader, I’ve struggled with your insistence that the presumption of innocence has to be adhered to by non-lawyers in non-legal settings.

    I still do.

    It is posts like this one that help me to understand the depth of your insistence on the subject, and why we would be a better populace if we did adhere to the presumption of innocence.

    Thanks for writing it.

    1. SHG Post author

      My position caused a certain friend from a certain think tank to take offense in the extreme and end our relationship. That’s the price of principle.

    2. Skink

      The greatest engine for determining truth ever created my humans is cross examination by someone skilled in the craft. It’s how a claim is tested. It’s tested by submitting it to veracity–is the claim true? Does it have a basis in reliable fact? At its base, it’s not much different than testing any hypothesis, like the efficacy of a medication. Does testing show the claim to be true?

      There are some things that can bring doubt to any claim, things obvious from the start. Was the medication tested in some guy’s garage? When testing the factual basis for legal claims, lawyers often look to the words of support. the reporting SHG tested is filled with weasel words: “might have,” “possibly,” then there’s a recantation without withdrawal. The information is presented as though factual, when everything about the facts shows them to be rank supposition or complete fantasy.

      More often than not, flimsy facts pass through the media directly to the reader. The reader must, but rarely does, assume the claim is bullshit because it’s based on nothing. I hope this helps you.

  2. B. McLeod

    This Kavanaugh thing is a tar baby, and despite the beating in the Senate midterm races, most of the Democratic presidential contenders got sucked into attacking it again. Accordingly, as the allegations are again discredited (e.g., by even the “victim” not backing them), Kavanaugh’s attackers are discredited. They just end up looking like a bunch of abortion politics fanatics, who are Hell bent on taking this guy out by hook or by crook.

  3. Fubar

    It Was The Best Of Times, It Was The Worst Of Times

    How the hysteria is addressed is a sign of the Times.

    I see what you did there, you tool
    Of misogynist patriarch school.
    Now we’re watching our backs
    For mud dauber attacks,
    And a federal pun control rule!

    Whenever the woke you displease,
    They attack like a swarm of mad bees.
    Expect a crescendo
    Of insinnuendo*
    That you’re spreading a social disease!

    * For this blog’s educational purposes — a portmanteau.

  4. Paul Neubauer

    Frankly what concerns me is not the truth or falsity of the accusation but it triviality.

    For if we are to be hung by the most trivial of things then we may as well do our worst whenever possible.

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