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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There is a hashtag on twitter, #WhyIDidntReport, created in the aftermath of the accusations against Judge Brett Kavanaugh in response to contentions that the failure to report the 36-year-old assault can’t be explained. There are a few general types of reactions to the hashtag, some from people molested or raped as young children for whom no reasonable person can argue that their failure to speak out isn’t understandable. This is a very distinct group, deeply problematic for its own obvious reasons.

Others, however, fall along the spectrum of feelings, from not realizing they had been violated to not feeling they would be believed to mistrust of the police and the system.* The thrust is that there are reasons why they didn’t report their rape or sexual assault, good, bad or otherwise, other than that they are lying.

Can we not understand their reasons? Can we not appreciate their fears? Of course we can, and we should. The argument that any rape that has gone unreported is a false accusation is not merely absurd, but patently offensive. Continue reading →

It wasn’t too long ago that Lara Bazelon wrote a great post about the difficulties women trial lawyers face, which makes it all the more surprising to find her arguing against the use of a woman doing the questioning.

Senator Charles Grassley of Iowa, the committee’s chairman, and his Republican colleagues have proposed ceding that important responsibility to an outside female lawyer or female aides.

I could have sworn that I saw a scold screaming about how it’s misogynistic to use the word “female.” “They’re women!”, she cried. Does that make Bazelon sexist? Well, the title of her op-ed doesn’t help, Man up, Grassley? I’m literally shaking.

Dr. Blasey and her lawyers have pushed back, demanding that Mr. Grassley and his colleagues question her themselves. They are right to do so. The Republicans’ attempt to outsource the questioning of Dr. Blasey is cynical, sexist and cowardly.

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Judge Brett Kavanaugh took to the telly to “make his case” with his wife, Ashley, at his side. It was a move I characterized as “exceptionally poor,” there being nothing to gain by playing a judge on TV and much to lose in the infinite ways a word, a glance, a bad response, can be exploited by people antagonistic to you. Don’t give your enemies ammunition, and Kavanaugh and spouse not being practiced pols or TV celebrities were ill-equipped to pull off a Bill and Hillary show.

Still, he did it.

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When it broke onto the scene, and all over Harvey Weinstein, I didn’t think it had legs to keep going. Eric Turkewitz told me I was wrong when I dismissed the momentum of the #MeToo movement. Turk was right.

In my naïveté, I thought people would be smart enough, mature enough, to recognize that every slight from their past could not be vindicated by mob-shaming. They would grasp that there would be serious cries, and cries so silly and trivial that no one could possibly not laugh.

They would realize that no matter where along the spectrum the tears fell, they could not reinvent history with some hysterical adjectives and lash out. What happened during the Sexual Revolution, that came to a crashing end when AIDS struck the world, obviously couldn’t be judged by today’s puritanical standards. Not even the most passionate kid today could fail to grasp the difference, the shift in norms and goals. No one could be that stupid. Continue reading →

Somebody I didn’t know kept retwitting his earlier twit that by the end of the weekend, there would be more. There would be another woman who claimed to be the victim of Brett Kavanaugh’s sexual misconduct. Ford may have come out of the woodwork late, whether 36 years or a few months according to whatever god you pray to, but belated accusations were about to be redefined.

As it turned out, there appeared to be two who exploded onto social media Sunday evening: Deborah Ramirez, as broken by a story by Ronan Farrow and Jane Meyer in the New Yorker and some mystery claim by Stormy lawyer Michael Avenatti that, despite being devoid of any factual allegations, he claims will be devastating. He’s available to be on television, if anyone’s interested.

Of course, Senator Feinstein is demanding the confirmation hearings, the deadline for which Senator Grassley kept extending over and over to show how fair he is, be put on hold and the FBI investigate, because what else would she do? And so this circus will go on in perpetuity. Continue reading →

What to do when a gay, bi-racial 17-year-old girl offers to portray in class a fictional corrupt cop in a play and refers to the character as “pig”? Throw a federal civil rights action.

Sometimes the best move is to let something go. Kids will be kids, as the saying go. Thing is, kids may also be litigants, especially if you think your school administration position grants you the power to violate students’ rights.

The mother of the 17-year-old girl filed the federal lawsuit this past February against the Hackettstown School District; teacher Kathleen Matlack; assistant principal Kevin O’Leary; and Jennifer Spukes, a Harassment, Intimidation, and Bullying specialist at the high school.

The suit contends the girl was discriminated against and her constitutional rights violated as the district accused the girl of bullying and then issued a one day in-school suspension while she attended the school in the 2016-2017 school year.

That’s the tidied-up summary of the lawsuit, as composed by Lehigh Valley Live, which covered the case but couldn’t be bothered to post the judge’s ruling. So, here’s the missing paperwork [PDF] and we’ll get into the story behind this via the details contained in the federal judge’s order.

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