The Sixth Circuit’s decision in Doe v. Baum will be hailed as a watershed decision for the accused in Title IX proceedings, and with some reason.

Earlier this month, a three-judge panel at the court handed a major victory to those who have claimed U-M’s process has been slanted toward the accuser in these investigations. The court said U-M violated the due process rights of a student by not offering him the opportunity for direct questioning of the person accusing him of sexual assault. The ruling was seen, by both victim-rights groups and those advocating for those accused, as a landmark decision.

U-M said in a court filing last week that mandating that universities allow direct cross-examination in a live hearing could lead to all sorts of problems.

The ruling raises a host of issues, from the mandate that a live hearing be provided, to the accuser being physically present and compelled to present her own testimony rather than the conclusory testimony as provided by a third-party investigator on her behalf, to the accused being provided the opportunity to confront his accuser and cross-examine her.  Continue reading →

The FBI has its strengths, one of which is to spot a crack and exploit it. Jim Comey, whose personal brand has fabulously ping-ponged from being the most hated person to the left when he was blamed for Clinton losing to Trump, and then adored after being fired by Trump, seized the opportunity to accomplish two goals. Re-establish his bona fides as patriot and virtuous head of the FBI, and stand up and out as a public darling.

The rawness of emotion from that slice of anti-Kavanaugh activists rivals the anti-war movement of the ’60s or the post-9/11 fear and loathing of terrorists. As invariably happens, the depth of passion rises in inverse proportion to the ability to think critically. It was a crack, and Comey leaped in to exploit it on behalf of his FBI.

We live in a world where the president routinely attacks the F.B.I. because he fears its work. He calls for his enemies to be prosecuted and his friends freed. We also live in a world where a sitting federal judge channels the president by shouting attacks at the Senate committee considering his nomination and demanding to know if a respected senator has ever passed out from drinking. We live in a world where the president is an accused serial abuser of women, who was caught on tape bragging about his ability to assault women and now likens the accusations against his nominee to the many “false” accusations against him.

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Imagine waking up one morning to learn that you’ve been named as the “other woman,” the only other woman to have been at a party 36 years ago where someone alleges she was sexually assaulted. Like Mark Judge, Leland Ingham Keyser didn’t ask to have her name on the front page.

“Ms. Keyser does not refute Dr. Ford’s account, and she has already told the press that she believes Dr. Ford’s account,” Keyser’s attorney, Howard Walsh, wrote in the letter, which was sent to the committee overnight Friday. “However, the simple and unchangeable truth is that she is unable to corroborate it because she has no recollection of the incident in question.”

The statement is curiously crafted to thread the needle of not being adversarial to the Ford accusation, while being unable to corroborate it. She doesn’t remember. She’s not saying it didn’t happen, and by asserting that “she believes” Ford’s account, she avoids the wrath of the unduly passionate even if it’s empty. Continue reading →

Imagine if you’re some random guy who was friends with someone who, decades later, became a nominee for the Supreme Court and ended up in the middle of the gender war vortex. You did things back then that were unseemly and wrote a book about it, admitting that you were a drunk, that you engaged in conduct which, in retrospect, you regret. Not that anyone cared much about you. Until you ended up on the front page.

If you were Mark Judge, would you want to be in the middle of this storm? There’s no upside for Judge. If he came out smelling like a rose, he wouldn’t win any prize. He’s not being nominated for anything. He’s not going to get a talk show out of it, or be asked to give inspirational speeches to groups of kvelling women.

His position is that he has nothing to offer in support of Christine Blasey Ford’s accusations against him and Brett Kavanaugh. He’s not saying he remembers, and it never happened, although words to that effect appear to have been uttered. Continue reading →

Apparently, I’m not the only one who cringes whenever someone on the right attacks a position taken by those damned lefty “liberals.” They’re progressives, not liberals.

It is nearly beyond dispute that the Civil Rights Movement, second-wave liberal feminism, and Gay Pride were liberal projects, both in the broad philosophical sense and in the narrower meaning that arises within contemporary politics. Nevertheless, it is common for those of us who consider ourselves liberal in either sense, or both, to be told we must disapprove of these great liberal successes. This occurs when we criticize identity politics.

Identity politics, social justice, whatever the least pejorative phrase is at the moment, is the antithesis of liberalism. Perhaps a test is in order. Continue reading →

Had she been male, this would likely have ended badly. Instead, it leads a New York Times editorial as a watershed moment in female heroism.

Look at me when I’m talking to you! You’re telling me that my assault doesn’t matter. That what happened to me doesn’t matter!

These were the words of Maria Gallagher to Senator Jeff Flake. Whether this was a fortuitous meeting or she stalked him is unclear, but either way, she found him in a Senate elevator and opened fire. Continue reading →

I can still remember snippets of watching Anita Hill and Clarence Thomas testify 27 years ago. At the time, Hill’s stoicism under fire was impressive. She didn’t devolve into a puddle of tears, but held her own under fire. Thomas’ scorched-earth response, “a high-tech lynching,” was his only way out. The rest is history.

The reopened hearing for Brett Kavanaugh, on the other hand, happened at a different time in history, a time when a confluence of influence created the worst possible moment to discern the hearing’s putative goal, to determine whether Kavanaugh, as a teen, sexually assaulted Christine Blasey Ford. Not only was Kavanaugh feared as the justice who was hated as he would “cause women to die,” a nominee of a president who was “literally Hitler,” but at the junction of #MeToo and a national need for emotional catharsis.

The hearing was a botch, as anyone who wasn’t married to the mob knew it would be. The “scary sex prosecutor” questioning Ford was a dud, scoring no points and floundering through the examination with no discernible purpose. In fairness, the mechanics of five minutes of question, following by a Democratic senator giving a speech about beatification, wasn’t conducive to meaningful questioning, but it was still Rachel Mitchell’s job to find a way to make it happen. She didn’t. Continue reading →

With the most curious headline possible, the New York Times argues “Hit Pause on Brett Kavanaugh. The integrity of the Supreme Court is at stake.” Are they disavowing Linda Greenhouse’s last two years of shrieking how the Supreme Court was comprised of partisan lackeys and the progressive wing, now suggesting that perhaps there remains some integrity to salvage? Of course not.

Enough.

With a third woman stepping forward with accusations that the Supreme Court nominee Brett Kavanaugh committed sexual assault as a young man, this destructive stampede of a confirmation, driven so far by partisan calculation, needs to yield at last to common sense: Let qualified investigators — the F.B.I. — do their job.

Yes, the FBI, that investigative marvel that somehow missed serial gang rapes that everyone know about. Sure, it might delay the hearings, only briefly in David Lat’s inexperienced view, or perhaps until Senator Kamala Harris is sworn in, but isn’t it worth it to know the truth? Our wild swings of faith in the FBI’s magical powers remain a constant reminder that we latch onto anything we can when we’re drowning, even when it was a lead weight around our neck the day before. Continue reading →

Persuasion often depends on how an issue is framed: If it’s good v. evil, who wouldn’t want to be on the side of good? And indeed, this is why defendants, historically, have been hated. They harm victims, who are innocent and undeserving of whatever harm is inflicted upon them. As if further proof was needed, look to the most innocent of the innocent, children and pets, who can never be to blame for they are the purist victims possible.

But as any criminal defense lawyer eventually comes to realize, the nearly-impenetrable cloud created by the inherent sympathy for the victim shield is a lie. As easy as it to cast the issue as good v. evil, it informs us of neither of the two questions that still need to be answered: did a crime occur. Did the defendant commit the crime.

When your eyes are clouded by tears for the victim, it can prove impossible to get people to see that these vital questions are unanswered by the presumptions imposed by emotions. How can you doubt that poor victim? For us, it’s the job. For others, we’re just mouthpieces for evil trying to trick them into seeing facts when every iota of their emotions cries in pain for the victim. Continue reading →

To the extent former California Judge Aaron Persky can be blamed for not being harsh enough to suit the whims the mob of useful idiots by Stanford law prof Michele Dauber, it was his choice to impose a sentence of six months on Brock Turner. The situation for Alaska Third Judicial District Superior Court Judge Michael Corey is different, not that it matters to the mob.

The facts, as alleged, are awful.

A man drove an Alaska Native woman to a dark street, said he would kill her and choked her until she blacked out.

He then masturbated on her face.

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