POLITICS, FAIRNESS AND FRIENDSHIP
To a Friend,
As a friend of many years, you know how I welcome differences on all issues we confront as Americans and Californians. Our discussions have always been respectful often agreeing to disagree. In the Kavanaugh matter we profoundly disagree, not on issues, but on process. We disagree on the notion of fundamental fairness and, unfortunately, such a profound disagreement may impact our friendship.
A woman’s accusation against a man for sexual assault must always be taken seriously and she must receive support during her ordeal of testifying. I did that when I prosecuted sexual assault while serving as a Los Angeles Deputy District Attorney. I felt comfortable prosecuting such cases, knowing that the system provided procedural protections for the accused. Even then, I was professionally bound to pursue the case only if I believed that a reasonable jury hearing all the evidence would find the defendant guilty beyond a reasonable doubt.
Dr. Ford testified Judge Kavanaugh assaulted her. He said he never committed sexual assault in his life. Both claim 100 percent certainty in their recollections. So who has the burden of proof? While the accusations against Judge Kavanaugh were not a result of a criminal charge, he was nevertheless accused of a heinous crime. Should such an uncorroborated accusation alleged to take place 36 years ago shift the burden of proof to the accused because it is not part of an indictment?
When the accused may be irrevocably damaged by mere accusation, due process protections must come into play and our institutions (including the Senate) must adhere to a presumption of innocence.
In the case of Judge Kavanaugh there was a presumption of guilt by those who disagree with the Judge’s judicial philosophy demonstrating a willingness to take him down by any means. But while the ends justify the means when fighting Nazis in the forests of Poland, this strategy has no place in our system of justice.
Lest we forget, the presumption of innocence not only protects “privileged” white men, but everyone. Recently a black student, Malik St. Hilaire, was accused of rape and thrown out of his college without a hearing. His accuser, a young white woman, later confessed that the sex was consensual, and admitted lying to preserve a friendship with another young man. In an earlier time, Mr. St. Hilaire might have been lynched even if the racist mob heard the retraction. Such a time was 1933, when two white women falsely accused nine young African Americans (the Scottsboro boys), ages 12 to 19, of gang rape. They barely escaped a lynching, and languished for years in jail when prejudiced white Alabama jurors continued to ignore evidence and found them guilty.
Fast-forward 73 years to 2006 when an African-American woman accused three white Duke lacrosse players of rape. These men were crucified in the press, prosecuted by a self-promoting District Attorney, and instantly found guilty by a hoard of Duke professors who saw them as representing the oppressor class. The case fell apart, the victim lied, and the District Attorney was disbarred. In the Scottsboro and the St Hilaire cases, the accusers were white and in the Duke case, she was black. In these cases, the accusations were met with fervent support by groups and institutions having no interest in first examining the evidence. In all the cases, innocent lives were damaged, and in one, black men were unjustly imprisoned.
History reveals the gross unfairness manifested when political or racial prejudices replace a measured and responsible search for the truth. Shamefully, even the ACLU has abandoned its historical defense of the accused by comparing Kavanaugh with Bill Clinton and Bill Cosby — selling out its principles for increased membership and financial support.
Would you have joined a similar chorus against Judge Merrick Garland if he were so accused with uncorroborated accusations? Can you honestly say that your belief that Judge Kavanaugh did something to Dr. Ford is an expression of a careful analysis of the evidence? Would it be the type of evidence you would find sufficient to smear your son or mine in the court of public opinion? Do you now choose to accuse Judge Kavanaugh of lacking judicial temperament because he was outraged at being called a gang rapist? How would you, someone I know to have led a righteous, productive, and law-abiding life, have reacted to such an accusation?
Your presumption of guilt convinces me that you feel the need to express political solidarity with “the resistance” — fairness be damned. Fundamental fairness is not another “issue.” It is a virtue, a profound and important part of our justice system that protects us all. It is one of the pillars of our Republic and all it stands for. I expect my friends to treasure it as I do, and it deeply saddens me that in this case you did not.