Prosecute, Smear, Acquit

Not everyone is aware that the #MeToo “movement” didn’t arise organically. I had been told it was coming well before it happened, that there was a deliberate plan to circumvent the difficulties presented by the legal system, even the Title IX campus sex tribunals, because they required two things that proponents found too hard to address: Evidence and the possibility that their accusations might be tested.

When it started “happening,” meaning that it wasn’t just some crazy conspiracy theory but had metastasized into reality, I wrote about it. For the sake of time frame, this was before Alyssa Milano grabbed onto Tarana Burke’s 2006 coinage of Me Too. This wasn’t an accident, but a decision to elevate unproven accusation into indisputable “truth.” It was a decision that the cost of the “few” false accusations and ruination of innocents was unfortunate, but necessary, collateral damage.

You might also note how critical it is to this scheme that the rape epidemic and false accusations lie be perpetrated. With both of these key beliefs in place, the downside of this extrajudicial and subconstitutional system was small enough that people would overlook its harm, ignore the fact that these cries were entirely unproven and would never be proven. There are no rules of evidence on social media, just as there’s no appeal.

And regardless of where you stand on the underlying issue, it has been a huge success. It has accomplished its goal of circumventing the principles upon which our law was grounded and eviscerating them. But where does it go from here? There remains a problem with the scheme, that as much as they can get men fired or expelled, books burned, movies trashed and art removed from the walls of museums, they still can’t put men in jail without going through the “regular” legal system.

A prosecutor in Maine has the answer.

Victims often hesitate to seek justice because many fear they won’t be believed. Others don’t want to relive the trauma they experienced through lengthy legal proceedings. Sexual assault cases are difficult to prosecute since these crimes often occur in private settings. Aside from personal testimony, investigators often lack solid evidence to build a criminal case.

But District Attorney Natasha Irving says it’s time to reform how the legal system prosecutes sexual assault cases, so victims who come forward know they’ll be supported. Irving says prosecutors shouldn’t decline to prosecute a case just because they “think it’s too hard to prove.”

Reforms prosecutors are all the rage, as activists have smartly realized that District Attorney elections were a weak link in the chain of the system. With very few votes, they could seize these offices, put reformers in place and reinvent the system from the backend to achieve what they have failed to accomplish from the legislative side. Few people cared about District Attorney races outside their friends and family, and they were handed vast power by legislators who thought they would always be handpicked by party leaders and instructed to do the party’s bidding. Give the activists credit for spotting the opportunity and seizing it.

But Natasha Irving’s idea of how of “reform” isn’t to adhere more closely to the Constitution, to assure every accused of due process, or to recognize that the job of a prosecutor isn’t to convict, but to “do justice.” Rather, her “reform” is to arrest and prosecute people against whom there is insufficient evidence to convict.

But that shouldn’t be a primary concern, said Irving who failed to get a conviction in that case after the judge ruled the state had not met the burden of proof beyond a reasonable doubt.

“It didn’t feel good for any of us to lose that case. But I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt,” Irving said. “We don’t want law enforcement or prosecutors to ever think that something is a ‘he said she said.’”

This isn’t to say that prosecutors should reject any case that isn’t a slam dunk, but to prosecute men based on the litany of rationalizations, as proffered by the “experts” who teach the jury what they’re to believe to be fact, when the evidence at best fails to establish proof beyond a reasonable doubt is a deliberate abuse of power. Ironically, it’s the same abuse complained of by reform prosecutors in any other prosecution not involving an accusation of sexual assault. Go figure.

Irving says it’s time for a “come-to-Jesus-moment” about the realities of sexual assault.

Where #MeToo has enjoyed massive, if mindless, acceptance among the woke, it is now working its way back into the legal system it was created to avoid, only this time based upon the invented belief in its foundational ideologies to overcome its evidentiary failings.

Will it work? First, it doesn’t have to in order to accomplish its goal. As the saying goes, you can beat the rap, but you can’t beat the ride. Men will be arrested and prosecuted, their faces and the accusations against them will appear in the media. They will lose their jobs, their homes, their families and be criminals. Even acquitted, the belief of guilt isn’t dissipated. After all, juries don’t return verdicts of “innocent,” but not guilty. And as the presumption of innocence is reduced to a “legal technicality” rather than a tenet of law, there is no way to overcome the taint.

But second, it may well work. For the reasons detained people plead guilty now, they will plead guilty to sex offenses rather than roll the dice at trial or spend a few years awaiting their chance for vindication.

And third, if the rationalizations, the expert witnesses, the narrative, accomplish what their pushers hope, perhaps juries will convict despite the gross inadequacy of proof. Is it “unfair” that some accusations of sexual assault and rape are hard to prove? Perhaps, but that’s always been the nature of our criminal justice system, that it’s better that ten guilty people go free than one innocent be convicted. There was no exception for sex offenses. Until now.

30 thoughts on “Prosecute, Smear, Acquit

  1. Futardave

    In the court of public perception,
    “What’s the verdict?, I’ve no recollection.”
    But the mere accusation,
    And some brain-dead conflation,
    Will require no further reflection.

    1. Kevin

      This is actually a great example of why we should be looking outside the criminal justice system for solutions, jail time doesn’t help victims, but money would and to get restitution all a victim has to do is prove rape happened by preponderance in civil court, a much more attainable goal.

        1. Guitardave

          At the least, it’s a fine example of how to nail a double back-flip at the Illogical Olympics. He somehow managed to extrude an example for supporting his idea from doing the very thing the verse is about. Amazing.

  2. Gregory Smith

    From the OVW, some “guidance” for prosecutors:

    “The availability of evidence (911 tapes, photographs, medical records and police testimony) was not associated with the likelihood of a conviction. Researchers did not suggest that only victims with strong cases self-selected to approach prosecutors. [11]

    Implications for Prosecutors
    Lack of evidence may be more likely to deter prosecutors from going forward than deterring juries from convicting defendants or deterring defendants from pleading guilty. (Research basis: Multiple studies have found prosecutors able to consistently achieve high conviction rates, notwithstanding consistently limited evidence. The analysis of San Diego trials specifically suggests that convictions may be obtained with varying types of evidence, notwithstanding absence of types of other evidence, including that from victims.) “

    Translation: “No need to allow trivialities like lack of evidence to be a barrier to obtaining a conviction or guilty plea!”

    1. SHG Post author

      Trial lawyers have long been aware that juries, for better or worse, reach their verdicts for reasons that don’t always make sense and can’t always be predicted. The failure of evidence doesn’t necessarily control. Jurors often fail to see the issues in the case at all, and reach verdicts for reasons that make no rational sense.

      But the implication is that if a prosecutor “believes” a crime has occurred and the defendant committed it, even if they also believe they lack sufficient evidence to prove it, they should proceed to roll the dice with a jury because you never know what a jury might do. But if a jury convicts, even if the prosecutor knows the evidence was inadequate, it’s still a conviction.

      1. B. McLeod

        A conviction that should be set aside, but the fear of being Perskeyed will likely prevent much of that occurring.

  3. Rengit

    Curious about how this “movement” might interact with the voir dire process, peremptory strikes, and even Sixth Amendment claims of juror prejudice. If the people leading this charge manage to plant in the minds of a significant chunk of the population, and therefore the potential jury pool, that “women don’t lie”, “most sexual assault claims are true”, “victims should be supported, not scrutinized”, is a cursory review of the person’s social media or professional background (these beliefs seem to correlate with advanced education) sufficient for a “for cause” removal? Can a guilty verdict be overturned for prejudice, or that juror removed and a mistrial declared, because a juror says that another juror was steadfast in claiming that only 5% of sexual assault claims were false, and therefore the jury wasn’t impartial?

      1. Rengit

        It looks like you answered my (mostly rhetorical) questions above to Gregory! Maybe paypal next time counselor.

        1. SHG Post author

          It’s not at all a rhetorical question in law. But this isn’t a post about either voir dire or the very rare instances where juror misconduct can be used to reverse a verdict. And if my reply to Gregory answered your questions, then you didn’t ask the questions you think you did.

          And a reminder: this is not a free lawyer Q&A site. It’s a law blog where non-lawyers are allowed to listen in and, occasionally, comment provided they can stay remotely on topic and not annoy me with the insipid questions I get paid to answer.

  4. Rich

    “Men will be arrested and prosecuted, their faces and the accusations against them will appear in the media. They will lose their jobs, their homes, their families and be criminals. Even acquitted, the belief of guilt isn’t dissipated.”
    Or perhaps this phenomenon simply fits your oft employed logic that these men, assholes as they might be, just are not worth the time and trouble.

    1. SHG Post author

      I haven’t the slightest clue what you’re talking about, but whatever it is, never attribute to me your perception of my “oft employed logic.”

  5. Sonetka

    I’ve been on one of those juries, and it was a nightmare then and a worse nightmare later when I learned that the two young teens admitted to colluding and lying to get their father sent to prison because they didn’t like his visitation weekends. After recanting, they spent the best part of a decade trying to undo the damage, and of course *then* they weren’t believed. I’ve wondered many times since whether the prosecutor and investigators and expert witnesses ever, even a little bit, really did the kind of investigation and testing the story that we could not and which we were assured they had in fact done. Obviously the jurors are not the victim in this situation. But to this day I am filled with fury towards the prosecutor and “experts” for making me into one of their accomplices.

    1. SHG Post author

      As a juror, all you can do is your best. People are people, and people sometimes tell the truth and sometimes lie. It’s not your fault. There’s no magic way of telling which is which.

  6. Vincent Morrone

    I think this is happening already, depending on the prosecutor.

    I have a coworker with a son who is a senior in high school. He was tried for rape and faced 25 years. He had gone to someone’s house and everyone was hanging out. He eventually fell asleep somewhere. A girl said he raped her. He said she climbed into bed with him and tried to get him to have sex, but he refused cause he was going out with a friend. There were other people in the house. Nobody heard her yell like she claimed, but people saw her get up and go into the room where he was. And he came out 2-3 minutes later. Everyone there said it couldn’t have happened the way she said. There was no evidence of sexual contact. Yet it went to trial. The prosecutor said that he knew it would be a hard case, but wanted to give the victim her say in court. Lawyer gave her a discount, still cost her, a single mom with 2 kids, nearly 50k

    1. SHG Post author

      Two things: first, anecdotes are frowned upon here. We all have stories, and lawyers have many more than you about cases. Yours aren’t special. Second, you’ve missed the point of the post. This is about a systemic change, a paradigm shift. There have always been outlier bad cases and one anecdote doesn’t prove anything, even assuming it occurred as you were told it occurred.

  7. Howl

    When prosecuted, smeared, and acquitted, where do you go to get your reputation back?

    “Good name in man and woman, dear my lord,
    Is the immediate jewel of their souls:
    Who steals my purse steals trash; ’tis something, nothing;
    ’twas mine, ’tis his, and has been slave to thousands;
    But he that filches from me my good name
    Robs me of that which not enriches him,
    And makes me poor indeed.”

    ― William Shakespeare, Othello

  8. F. Lee Billy

    Thinking about Sonetka above, I too have been on one of those juries. It too was a nitemare. The difference is, I was the lone holdout for acquittal. The forelady tried to get me thrown off. The lady judge did not go for it, God bless. A mistrial was declared. Some poor guy got lucky that I was on his jury.

    I’ve also sat at the defense table in front of a jury facing serious, trumped-up felony charges. This was another nitemare, and life-altering event which I have not gotten over in twenty years. No one has read the 500 page transcript, except me. This is no great piece of literature, trust it.

    I’ve also witnessed two jury trials for murder. These were vicious nightmares and unspeakable abuses of prosecutorial discretion. And displays of official incompetence.

    Ten years ago, I wrote an op-ed piece entitled “Our Broken Jury System,” and shopped it around. A local editor told me to my face, it was “not suitable” for his readership. If Prof. Derschbag had written it, none other than the N.Y. Times would have been all over it like a rash. That Harvard windbag just won’t quit.

    So what is the solution? Ahem, let me say this about that,…

    1. SHG Post author

      I’ve already trashed a dozen inane comments this morning by angry people spewing their vitriol. Of course you show up to tell your stories, which (as I’ve told you many times before) would be best kept to yourself. Good morning, Bill.

      1. F. Lee Billy

        So sorry, Captain. You should have trashed mine. Fully expected you to do so. Your Bad.
        It’s not clear to me that there is a so-called paradigm shift. Just because you say so?!? Where are the numbers? Where is the evidence other than some misfit prosecutor in Maine? Focus pocus. Now we’re on topic.Thoughtful comments by non-lawyers will be entertained.

        1. SHG Post author

          I’m anticipating the shift. If I’m wrong (which I hope I am, for everyone’s sake), the numbers will eventually prove it. And it’s Admiral, not Captain. Sheesh, Bill, you should know better.

  9. A. C.

    An underlying goal of both the “#metoo” movement and the way sexual misbehavior (not all of it was assault) was to change people’s attitudes towards due process and constitutional rights for the accused. The goal is (yes it still is) to get people to see them as obstacles to justice, not protection of justice.

    1. SHG Post author

      Before pontificating, random first-time commenter, it might behoove you to do a little reading here on the subject. This is a law blog, for lawyers and judges. We’re not total morons, contrary to your assumption.

  10. christina bearfield

    The #metoo BS has succeeded in efficiently distracted attention away from the exponential up-tic in the Fall of 2016. Of certain Reddit and 4chan threads who received enough traffic to statistically “12th monkey” so to speak. Posts expounding upon info gleaned from another ‘leak’ site. . got too info-rich-risky. “They’ll just follow the stars” a risk-mitigates mantra, which best describes the initiate-less lesser class-mens’ motivator to move. An under-estimation at best!
    Quite a different visceral reaction had, when weighed upon ‘my’ scale of atrocity, I feel grown women in comparison pale, as babies to elders do.
    Here is my best layman inferential allegory & attempt at wit… as to what the movement, ment to move. Only privy Esquires over stand what flags with fringe of gold are when flanked by dual fascias upon a pole adorned with double headed eagles. Silently speaking with a symbolic juris-diction. That unspoken just-us, in-the-know lingo. Using language as an Art Liberally defined, except Liber in Greek. Just provocateur gents for prophet, phonetically ‘profess’ their adversarial roles predefined in moot, practice as professional word smithy court jesters, who’s gain a credit of id. Dead languages ‘spell’ privilege to power and becomes the moniker under ‘witch’ their HRH ship will sail in waters of militant allegiance, under a veil the ‘color of’ Law. Prudence admires the baal had by all merry-timers, their goal lies inside the Mandalay Camps closed door. Hoping for that most elite of invitations be reward for the re-ward-ing of peons back unto dark lords of lore. Who’s extended to the bar associate it’s secret authority. Daughters and sons of Ma by proxy. Endgame Adrenal chrome elixir or the saturnal patriarch who hungers. Gets fosters as feed. Oh it’s a shark fest indeed. Hope I gave you a chuckle as you delete my between the lines grayer layers. BTW sir I agree this topic is a neon sign of pulsating paradigmatic Shifty-Sh!t gas..

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