Beware The Biden Shift

While the New York Times looked the other way. Cathy Young addressed the Tara Reade accusation of sexual assault against Joe Biden, arguing that based upon what was known at the time, it was implausible.

And yet even with minimal scrutiny, Reade’s account has major credibility problems.

In response, Ben Burgis agreed that the “believe the woman” mantra was an absurd mantra, but that the accusations were plausible.

The moral calculation underlying the “guilty beyond a reasonable doubt” standard for criminal trials is “Blackstone’s Ratio.” It’s better for ten guilty people to go free than for one innocent person to be imprisoned or executed. This isn’t even the standard for civil trials, and it not only shouldn’t but can’t be the standard used by private citizens trying to muddle through the epistemic morass and decide what we think of Kavanaugh or Biden.

And in response to Burgis, Nick Grossman argues his rationalization as to why the standards for “judging” Kavanaugh and Biden are different, arising after Tara Reade’s neighbor came forward to say there was a contemporaneous prior consistent statement.

You don’t really know either.

And that’s what I think is missing most from the Kavanaugh and Biden discussions: accepting that we don’t really know and figuring out the best way to make a decision under conditions of uncertainty.

To be fair, none of these writers are lawyers, and their arguments relating to criminal burdens, civil burdens and “the epistemic morass” are largely simplistic, vague and confused. To the extent they get the rubric right, that fail miserably to grasp the rationale. Still, to people for whom the rubric is close enough, they appear to offer some sort of “moral” suasion that avoids the legalisms while justifying their rhetorical arguments that we can engage in some legitimate judging of guilt nonetheless.

It’s wrong. It’s nonsensical. It’s very dangerous.

First, whether the accusations are “plausible” is very much like the recently adored cry that accusations are “credible.” These aren’t standards. Implausible doesn’t make it false. Plausible doesn’t make it true. These are arguments based upon rhetoric, words that create the appearance to the legally ignorant of having some validity when they essentially mean nothing.

Yet, after additional information came to light, people are now taking this accusation far more seriously. It was one thing for Tara Reade to claim it. It’s another for someone else to bolster it. And this is where the danger comes into play.

You can, of course, vote for Biden for any reason or no reason. This is America and no one is under any obligation to explain or justify his or her vote. You can also believe in the tooth fairy and/or Santa Claus if you like. That’s entirely up to you.

But what you cannot do is pretend that there is some legitimate subconstitutional legalistic standard by which you are entitled to contend that anyone, whether Kavanaugh or Biden, is “guilty” of criminal conduct. And what we’re seeing happen is people taking for granted that the sole mechanism in our society for ascertaining facts, for determining “guilt,” has been eschewed, and so we’re somehow entitled to move to a second tier system of making up whatever rules, whatever standards, whatever rationalizations, we want to indulge in the mental masturbation of a non-trial trial as if it’s the real deal.

Non-lawyers waive away the legal rules that apply because, they argue, this isn’t a criminal trial, or even a civil trial, so no reason to bother with all that nasty technical stuff that impairs our ability to reinvent how we determine who to believe. What they fail to grasp is that these “technical” rules are the embodiment of both legal principles and the experience of hundreds of years of honing the mechanism for vetting the truthfulness of an accusation and, thereupon, testing it through the crucible of due process.

They aren’t aware of the reasons for discovery, motion practice, statutes of limitations, burdens of proof and presumptions of innocence. These aren’t merely rules, but rules grounded in foundational principles. These don’t get to be revisited in every case, as if we pick off a Chinese menu which rules we like as applied to any individual based on our tribe affiliation or personal ideology. There is no second tier mechanism for reaching these determinations with any validity. Either we play by all the rules or not. They don’t get to invent their own game because the real game, the game society has determined must be played, was forfeited.

When accusers choose not to avail themselves of the mechanisms society provides to address allegations of criminal conduct, they lose. It’s not that they  are necessarily lying or wrong, but that we have a means of determining guilt and they failed to use it. There is no alternative means available. Indulging in the pretense that if an accuser neglected to pursue her allegations through the legitimate means, she gets a second try in the court of public opinion, where she will never been subject to the “technical rules” of due process or the crucible of cross examination, is nonsense. And yet, it’s becoming an accepted reality in the age of MeToo.

It’s bad enough that old claims on social media are sufficient for the unduly passionate to not only believe whatever suits their ideology, and to impose punishment* upon the “guilty” for no better reason than it feels right to the fearful. But to discuss and argue about it as if there were any validity to these faux standards has brought us to the point where we take for granted that there is some lesser mechanism for officially deciding fact and fiction, truth from falsity, and condemning the guilty as if we’ve given him some post-modern version of fairness.

You can vote for Biden or not. You can hate Kavanaugh or not. Nobody says you can’t be as foolish as you want to be. It’s your life. But take no refuge in the lie that there is some legitimacy to your belief that you know what happened, you know who’s guilty, you know the truth, because you heard it on the internet. It doesn’t work that way and can’t work that way.

The only valid conclusions are reached in court after the accused is afforded full due process. If that opportunity is passed, then you’re just making it up and believing what you choose to believe. You’re entitled to do so, but you’re not entitled to pretend there’s any legitimacy to it. This didn’t change for Kavanaugh and it doesn’t shift for Biden either.

*A perpetual and fundamentally flawed argument is that if prison time or money damages aren’t the outcome, then the punishment somehow isn’t serious enough to be worthy of any of the protections afforded an accused. As if destruction of a career, ruination of a life’s effort, forfeiture of years of tuition, is no big deal, this contention is utterly false.

64 thoughts on “Beware The Biden Shift

  1. Richard Kopf

    SHG

    In “Unforgiven,” Clint as Munny announces that “We all have it coming.” That conclusion is the only one possible when we reject the applicability of legal rules to accusations of criminal conduct.

    Interestingly, I believe I know that to be true for both (all?) genders. That view, I admit, does not appear to be shared widely, however.

    All the best.

    RGK

    1. SHG Post author

      I wish I was capable of coming up with a better word or phrase to describe this phenomenon that’s happening around us, as the official legal system is shrugged off and this second tier (which is a terribly inadequate description) is taken seriously and given social legitimacy.

      1. B. McLeod

        The whole notion that standardless, Internet mobs can declare whatever reality they please is nuts from the get-go.

        1. SHG Post author

          What concerns me now is that people are trying to create a paradigm, standards, rules that somehow shift this mob insanity into some sort of actual valid conclusion. We expect the crazies to be crazy, but what happens when smarter people start to take the crazies seriously or turn the crazies into normalcy?

      2. delurking

        The distinction between criminal conduct and non-criminal conduct is too arbitrary already. What if Biden was accused of some 30-year-old non-criminal conduct that reflected poorly on him, like secretly contributing to the KKK? Does the fact that there was no legal system to turn to mean we should ignore all such accusations or try to evaluate them using non-legal-system means?

        We all have to make evaluations based on incomplete information all the time. Whether something is or is not criminal, or was or was not pursued criminally at the time, cannot be more than another datum in the evaluation.

        1. SHG Post author

          Did you miss the part where I said you’re entitled to believe in the tooth fairy if you want? Believe what you like, but don’t try to clothe it in legitimacy. You’re believing what you choose to believe. Nothing more.

          1. Peter

            Interesting how you didn’t address his point but instead spouted irrelevant nonsense about “beliefs”. This is what happens when you approach non-criminal situations with the standard of bard. Preponderance is the standard used in day to day life by people and is more than enough for assessing a politician. Rape is an act like any other and is not inherently criminal tho it can have criminal consequences which is why it can be heard on the standard of bard in *criminal court*. Biden hasn’t been convicted of smelling hair or writing the crime bill yet he did both of them and they are things to weigh when voting, much like his reported rape.

            1. SHG Post author

              Every once in a while, somebody leaves a dumbass comment like this, as if it’s my obligation to “address his point.” He’s addressing my point in the post. See how that works? And he failed almost as miserably as you do.

              Rape is an act like any other and is not inherently criminal…

              No. Rape is a crime. People make decisions in every day life for good reasons, bad reasons or no reason, and they’re allowed to. What they are not allowed to do is pretend they gone through some pseudo-official system to get there that makes their conclusion valid. They can choose believe whatever they like, but that doesn’t make it valid.

            2. Peter

              Rape is also a tort and has been for some time. This isn’t outrageous or radical, it’s established law.

            3. Skink

              Are you really this obtuse? I don’t ask casually, but because you don’t seem to understand words. Words are a thing in this here Hotel, especially when used together. Words alone are kinda lonely, but when they congregate, boy are they something. When they are together, they form what some people around here call “thoughts.” That’s way harder to explain to you.

              If you can’t manage words and thoughts in this Hotel, which is occupied by lawyers and judges keen on the concept of those two things, you should definitely use your words with those that don’t know better than you. Them, you can fool. Here, not at all.

          2. delurking

            I have seen some information about the accusation against Biden, and I guesstimate there is a 5% chance he did what he was accused of. I’ve seen some information about the murder accusation against OJ Simpson, and I guesstimate there is a 97% chance he did it. I have read of criminal cases where the jury was not allowed to see evidence because the evidence was improperly obtained. Those people were acquitted (an outcome I support, BTW), but I’d put the odds of their guilt at 99%.

            Other people likely have seen different information from me, and may come to different estimates. If I see more information about these cases, I may revise my estimates. I don’t know what you mean when you say I am trying to clothe my probability estimates in legitimacy. They are just my estimates today. What else do I have?

            1. SHG Post author

              I love how science-y type people even come out with percentages, to make their unfounded suspicions feel even more legit. It’s adorable.

              It may well be that your gut feelings are right, even down to the percentages, but that doesn’t make them any more than your gut feelings.

            2. Julia

              Schrodinger’s crime? You can calculate probability of a random process (tossing a coin), but an event either happened or not. Biden kept rolling 2 dice, every time the sum was 11 (5.6% chance) he raped a woman,.

              But pseudo-math just sounds better than pseudo-legalese.

      3. Guitardave

        Since it’s all based on stories, how about “The parable-legal system”?

        You too can be a Parable-legal today!
        For only $69.95 we’ll send you the link to 4 Reddit threads..(about 6hrs. study time)
        Then complete our 20 question test/survey, and graduate with a new certified Twitter account,
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      4. Rendall

        “I wish I was capable of coming up with a better word or phrase to describe this phenomenon that’s happening around us, as the official legal system is shrugged off and this second tier (which is a terribly inadequate description) is taken seriously and given social legitimacy.”

        Title IX administrative hearings? Kind of a mouthful, though

        “As I keep repeating, people are allowed to believe whatever they want, no matter how unfounded.”

        I believe I would have warm and fuzzy feelings were Biden to be judged by these very standards he himself advocated for others.

        1. SHG Post author

          I would take no pleasure in Biden being “convicted” by the mob upon unproven allegations. It’s not that he would do the same for anyone else, but we would do no less for him than we would want for anyone else. It’s about us, not him.

      5. Onlymom

        Now me i call it all “Criminal Stupidity” from both groups. Now if only the state would just it in the actual criminal law.

        1. SHG Post author

          You should get a tat on the small of your back that says that so when you bend over, everyone can see it.

  2. PseudonymousKid

    Pops,

    You’re so not woke. The game is rigged, obviously. So that means we all get to decide guilt and innocence as rugged individuals. You told me I was so special from birth. It’s my parent-given right to waive away such petty concerns as procedure and law so I can feel superior to would-be presidents.

    If only I could convince judges to believe how right I am regardless of my arguments. “Duh” just doesn’t seem to be working.

    Best,
    PK

  3. V. McCormick

    Thank you for laying out the principles and explaining what *should be* deeply ingrained grade 7 civics so clearly. I fear your concerns that this will infect the legal system are well founded. I’m Canadian and the fallout from the “wrong” verdict in the Ghomeshi trial has been new law to impose a disclosure burden on the defence in sexual ass assault cases related to communications in their possession. It hasn’t reached our Supreme Court yet, but it will be interesting to see if the rot has reached that level when it does.

  4. Brice Timmons

    I only take issue with one aspect of this. This comparison to criminal law does not seem to me to be particularly relevant. Incarceration is not the outcome. What is “due process” for making public opinion decisions? Certainly there should be some standard, but it cannot possibly be reasonable doubt.

    As a lawyer, when I assign a settlement value to a civil case, I base that value on where we are in the process. If we’re past a 12(b)(6) motion (plausibility), then it has higher value than at filing. Past summary judgment, higher still. Courthouse steps, typically even higher. Should we not treat public opinion issues similarly?

    Certainly, it is not the case that when someone pursues a civil claim but not a criminal one that they are not entitled to civil justice. Likewise, when someone chooses not to pursue either but does choose to come forward in a public forum that they are entitled to the remedy available through that forum, which ain’t much for them.

    There could be a great many reasons that a real victim chooses not to participate in a criminal or civil legal process, but when they don’t, we should clearly tell them that they are not entitled to much societal deference to their later statements on a subject. It seems to me to be a lot like voting. If you don’t vote, don’t bitch about the outcome of an election.

    In any event, yes, the MeToo standard of proof seems to be something far below even plausibility. It’s so de minimis as to be absurd. That said, when we start demanding that people avail themselves of the legal system or be forever ignored, it seems like we’re inviting arguments about the functioning of the legal system rather than setting standards for public discourse.

    In any event, my very-poorly-thought-out 2 cents.

    1. SHG Post author

      So you’ve bought into the absurd concept that as long as they can’t sentence you to prison, you can quasi-officially be found “guilty” of rape and punished outside of any legitimate process? Okay then.

      1. Alexandra

        What is “due process” for making public opinion decisions? Certainly there should be some standard, but it cannot possibly be reasonable doubt.

            1. SHG Post author

              The burden of proof is one prong of due process, just so you’re clear that BARD isn’t all we’re talking about. The reason why is that the conduct being accused is criminal, and the standard of proof for criminal conduct is beyond a reasonable doubt. But even if there was the lesser burden of proof, it would still go through the rigors of discovery, motions and trial before a verdict was reached.

          1. Alexandra

            It won’t let me to reply to your latest post so I will reply to this one, Brice brought up civil justice. You seem to be focusing on this exclusively through a criminal lens. If Reade sued Biden at the time of the incident and he was found liable, would you consider that when voting or would there need to be a criminal conviction for you to give her claim weight?

            1. SHG Post author

              You’ve missed the point of this post entirely. It has nothing to do with considering Reade’s allegations when deciding whether to vote for Biden. I’ve explained it here a few times already. If you haven’t gotten it yet, then it’s unlikely any further engagement is going to help you.

    2. Miles

      The point of the post wasn’t that ideologically bound dumbasses aren’t entitled to believe whatever shit they want to believe, but that they can’t pretend its some sort of pseudo-official conclusion that is subject to “standards” that make it valid. You murdered all those words and completely missed the point. Is there something in the Kool-Aid that makes your brain fail to function?

      1. SHG Post author

        As I keep repeating, people are allowed to believe whatever they want, no matter how unfounded. This is America. What they cannot do is pretend there’s any legitimacy to their beliefs. Sadly, you see how people who have bought into the litany of bullshit excuses try to talk their way into some sort of rationale to justify their belief, and they refuse to admit that it’s nothing more than their bias wrapped up in their rhetorical bullshit.

    3. Anonymous Coward

      It is also significant that the strength and vehemence of “Me Too” and “believe all women” screeds seem closely linked to the political affiliations of the accused and accuser. Many of the same blue check marks wanting to tar and feather Republicans at the first hint of accusation immediately change tone to skepticism when the target is a Democrat

      1. Jim Cline

        Okay, let’s not vote for the guy with the unproven allegations and vote for the guy who on camera stated that if he desires someone he just grabs them by the pussy. Brilliant.

    4. David

      Likewise, when someone chooses not to pursue either but does choose to come forward in a public forum that they are entitled to the remedy available through that forum, which ain’t much for them.

      No, they’re not “entitled” to anything. You want to be entitled, go to court and prove your case. Not accuse and expect the woke to back you up no matter what.

  5. Jake

    Your argument hinges on the word legitimate. Naturally, the question is, legitimate for what purpose?

    You may bemoan the court of public opinion until the cows come home to no avail. Biden, Kavanaugh, and every other flawed human being hoping to join the ranks of the most powerful individuals in the history of the universe can and will be subjected to whatever level of rigor the mob decides is appropriate, with, I suspect, not much thought for the concerns of a minority who claim a monopoly on the right and wrong of things.

    They did not have this life thrust upon them. They choose this life, most likely having weighed the probability and cost of past misdeeds, perceived or real, coming to light.

    1. SHG Post author

      How does one weigh the “past misdeeds, perceived”? Are they accountable for things that never happened, lies told about them? How does that work? And while Biden and Kav are “powerful,” what about the hundreds who have no power, but had their lives destroyed as well? You conveniently forget they get fucked as well and rarely have the NYT come up with hypocritical excuses on their behalf. So tough nuggies for them?

      1. Jake

        “How does one weigh the “past misdeeds, perceived”?

        That’s a personal decision only those individuals striving mightily for a life in the public eye can make. Speaking only for myself, I doubt I would survive the oppo research phase for a position on the local school council.

        “What about the hundreds who have no power, but had their lives destroyed as well?”

        What shall I tell you, Scott? That we’re all going to have a life of wine and roses? That everybody will cruise into an early retirement sipping rare scotch whiskey while contemplating the next thousand dollars we’re planning to drop on upgrades for a fancy, antique car?

    2. Angrychiatty

      “They chose this life, so therefore blah blah…..” To see a comment like this on a blog dedicated to the legal system and its principles/ideas is really something.

      1. SHG Post author

        It’s the same empty rhetoric, turned on or off according to which side they like at any given moment. When the same words are turned against Jake about people who commit crimes and “get what they deserve,” he’ll just flip to the other side’s argument and complete ignore the big whooshing sound of hypocrisy flying overhead.

        1. Jake

          On the contrary, and you may check the SJ record, I shared identical sentiments to the question of Kavanaugh.

          You are applying legal standards to a question of public opinion. While this is primarily a ‘law blog’ not all of your posts are about the law.

            1. SHG Post author

              When you say you didn’t say something that you did, arguing that you also kinda said the opposite doesn’t make the first go away. That said, I don’t think that really does as much good for you as you think it does. Oh well. For whatever it’s worth, it’s there.

  6. jeffrey gamso

    My only quibble is with the belief that a verdict from the legal system has a necessary connection to the truth of what occurred.

    It’s likely more often right than the gut feelings of the mob (which are mostly akin to a hung jury – i.e., some will be sure of guilt and some sure of innocence, rather than not guilt, but you get the idea) based on . . . . Well, based on whatever the gut feelings are based on. But we discover too damned often that the verdict of the jury is factually wrong.

    1. SHG Post author

      Whenever I write about due process issues, this is in the back of my head, knowing that even when it’s all there, the process sucks. But one step at a time. Better to have it than not, and having ain’t too good either.

      Nice to hear from you, pal.

    1. SHG Post author

      First, use the reply button. Second, the tort is battery, and if it’s semantics, why persist in trying to bullshit your way out of it? Third, this is a law blog, so it’s not as if every lawyer and judge here doesn’t already know you’re pissing in the wind. Let it go. You’ve disgraced yourself enough for one day.

      1. Peter

        I would add links but they are not permitted. California’s civil code includes sexual battery so you are a Google search away from the facts. Defendants are found liable for rape on preponderance all the time. Throughout history rape has alternated between being a private and public wrong.

        1. Miles

          California. Too Funny.

          Your ever-moving goal post had to end up somewhere, so of course it was California. And the tort is still not “rape,” and liability for a tort isn’t the same as being found guilty of a crime. You lose. Put on your big boy pants and apologize for being such a total asshole.

          And the bottom line, which eluded you completely, is no matter whether it was civil or criminal, you still go through the legal process to get there, not a rousing chorus of “likes” from your facebook friends based on one side’s hearsay uncrossed claims.

  7. Peter

    I didn’t move the goal posts and if you look into the history of rape law, you will find it has not always been predominantly a public wrong. Present day, even backwards Alabama allows civil sexual battery suits. If you only believe things that can be proven beyond a reasonable doubt then the world must be a rough place for you.

    1. SHG Post author

      Again, use the reply button. You don’t get to keep starting new threads because you’re all butthurt. You’re not that special. You’ve had your say. This is a law blog, and frankly, nobody but you gives a shit about your butthurt. You’re done.

  8. Miles

    The Washington Post just posted an editorial that Biden should step forward, “hear” Reade, respond to her accusations, release his papers that are being held until after he’s out of public life. Exactly what you’re talking about here, manufacturer some twisted pseudo-legitimate system where it’s now Biden’s problem to prove his innocence after the accusations have been deemed credible.

    This is insane.

    1. SHG Post author

      I just twitted about it. My word was ludicrous.

    2. Peter

      If he stays silent, inferences may be drawn by voters that the answers to questions related to the alleged incident would be contrary to his interests

      1. SHG Post author

        Voters get to decide whatever they like for whatever reasons they like. That’s never been the issue.

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