Sex, Politics, the Law and the Evidence

Except Request a Real Investigation Into the Allegations

Okay, so if you’re like me, you’ve spent almost an entire day watching the Kavanaugh Supreme Court nomination hearings. Again, oh GOD…what a shit show.

I set the stage for the legal standards we are working with, in my first article, Sex, Politics, the Law…and the Shit Show or the Kavanaugh Supreme Court Nomination.

Now, I don’t want to get into the politics of it, at least, not yet. I’ll circle back to it, though. I kind of have to because what most Republican Senators attempted to do, today, is to conflate their outrageous and indignant soliloquys and proclamations of many, many things with the evidence - as if that IS evidence. It is not. Primal screams about left wing conspiracies is not in any way shape or form, evidence of anything. Besides, many of those Dem senators looked like deers caught in a multitude of headlights, not master minds of a deep state conspiracy. They seemed confused, and understandable, because with flimsy evidence and lots of primal screaming, it’s really difficult for any Senator to think, much less decide anything.

Feinstein: I’m so confused right now…how did we get here…what are we talking about…I don’t really want to be here…this is awkward…

The actual evidence, though, is something that the Dems grappled with…badly, in my opinion. But, at least they tried. They tried to get at it, which to be fair, is not an easy thing to do in these sorts of cases, unless you’re a litigator. The Pubs, on the other hand, attempted run far, far away, fast and furiously, from any actual evidence, lest they actually have to weigh it.

The moment they do that, they’d have to admit that they had screwed up this whole nomination thing, royally. Perhaps what Pubs are running from, actually, is their astounding incompetence.

Nevertheless, the Senators - all of them - are in receipt of a lot of very, very serious allegations of sexual assault. The job, for ALL OF THEM, is to look deeper into these allegations and determine their truth or falseness. They do this - by CONSIDERING and WEIGHING EVIDENCE.

When asked about continuing the FBI background investigation into these newly surfaced allegations, the typical Pub response was, Oh no! That’s ridiculous! That’s absurd! Why in the hell would we ever want to do such a thing!

No never that. For they just might get close to some actual truth, if they did that. Why don’t they want to get to the truth? Political reasons, and good ones. Further investigation into this matter will not turn up anything that Pubs want to deal with. For that matter, it’s not going to turn up anything Dems want to deal with either. I’d say, in this case, both parties are complicit with trying to suppress the hell out of this particular drama, but it was the Press, with it’s love of salacious stories, that forced all hands on the issue.

See, I’m an attorney, who has defended corporations against these kinds of allegations, as well as represented clients who have been subjected to sexual harassment. I know this game - very well. I know all the tricks, all the tactics. But even given my experience, this was a shit show, the likes of which I have never seen. Just never.

And to the Pubs- honestly- well played! Ya did good! If the goal was to avoid any possibility of seriously investigating this issue, but at the same time appearing to care for the victim, mission accomplished!

Of course, the actual allegations will be swept under the rug as promptly as possible, as always.

As for the Dems, with a few exceptions, a lot of bumbling and fumbling. If you look at this event from a purely strategic, political kinda thing, the Dems botched the hearing, badly.

But, okay. I’m not going get into the politics, just yet. Back to the evidence, what do we have as evidence? Not much unfortunately. The evidence is pretty sparse. But what we do have can be placed in three categories: direct testimony, the cross and documentation.

Direct Testimony

These were very serious allegations the Senate Judiciary Committee had to consider. A tag-team sort of attempted rape, that was so rough the accuser feared for her life. The accuser provided her account of the evidence, and the accused denied that he was even there.

Direct testimony from two of the people who were involved in an incident that took place well over 30 years ago. It’s not great evidence. It just can’t be. Memory is unreliable, to begin with. Traumatic memories, as was explained at the hearing, have holes in them. Substance and alcohol abuse also impacts and distorts memory, also people lie. In a perfect world, you want more evidence than direct testimony. You want some kind of documentation, video footage, an impartial witness, something to go along with that direct testimony from the accused and the accuser. But unfortunately, direct testimony is all there is here. Because it’s a sex crime, with only one other possible witness/actor the direct testimony evidence that we have could best be categorized as he said/she said. This type of testimony is particularly contentious. Especially with allegations of sexual assault or harassment, he said/she said testimony is highly divisive and fraught with deeply held beliefs and or emotions regarding the nature of sex. But ultimately, in these cases, weighing the evidence, comes down to credibility.

In this case, we had the testimony of both Dr. Ford and Judge Kavanaugh. Who was more believable? It’s a highly subjective call, in any case. But that is the task at hand with direct testimony evidence.

Cross-Examination

Usually, there is a cross-examination of some sort, where people (usually attorneys) are permitted to really question the testifying individuals, to test their credibility and poke holes in their story. In this case, Rachel Mitchell was brought in as a special questioner, and she did her job. Mitchell attempted to establish all the pertinent facts, in her cross of Dr. Ford. After establishing the critical facts, she attempted to poke holes in Dr. Ford’s story; and there were a few.

For example, if Dr. Ford’s home was many miles away from the late night party, how was it exactly that Dr. Ford got home after the assault? How did she even get to the party, for that matter? It seems a little suspect that Dr. Ford has no one- no one who can come forward to say, “I brought Christine home from that party that night, and she was not in good shape. I don’t know what happened, but she was shook up.”

Now that would be great, corroborating evidence, evidence that was supportive of Dr. Ford’s testimony. Unfortunately, there was very little of that.

As for Judge Kavanaugh’s cross, undertaken primarily by a few determined dem senators, it was a disaster. He did not hold up well under cross, as well be discussed below.

Other Witnesses

Usually, in a trial, other witnesses will be brought in to corrobate or refute the direct testimony of both the accused and the accuser. In the Kavanaugh hearings, there were none and that was odd. I think the Dems said that they wanted others called, but the Pubs were blocking that. Who knows. The acrimony between these parties is palpable to the point that it is very difficult to believe what one party says about the other, but as a result of their refusal to work together, the evidence presented was pretty shabby.

For the sake of evidence, it would have been thorough, not only to hear from witnesses, like others at the party, but also to have heard from the others who have brought forward allegations against Judge Kavanaugh, but they were not called, and apparently, would not be called. That seems to be a Pub decision, but there are also legal and logistical reasons not to bring forth additional witnesses.

Typically, attorneys, on either side, vet witnesses. Attorneys determine the credibility of witnesses, and decide whether to permit them to testify, In this case, such vetting is highly necessary. You can’t just let anyone testify at a Supreme Court Confirmation hearing. But…not hearing from the other witnesses and accusers who may have had information about the incident or Kavanaugh’s pattern or practice of sexual assault, puts a big hole in the evidence, as far as evidence collections strategies go. Consider this: 22 witnesses were called with regard to the Anita Hill allegations that became apart of the Clarence Thomas Supreme Court confirmation. None were called in this conformation hearing, where much more serious allegations were brought forth. It seems like a pretty shady tactics are being employed by whoever is suppressing that additional evidence that could be gleaned from additional witnesses.

Documents

Often, documents are referred to and submitted as evidence. In this case, the only documents referenced in the hearing were: a map, prepared by cross-examiner, Rachel Mitchell (Dr. Ford’s cross-examiner), the Pubs want that in the record; a copy of Dr. Blasey Ford’s lie detector test, the Dems wanted that in the record. The Pubs seemed to protest. It seemed like the Pubs were crying about how there were no supporting documents to explain that test. The Dems countered that Pubs refused to let those supporting documents into the record.

Judge Kavanaugh’s high school calendar was also submitted into evidence; and perhaps maybe, a yearbook with a lot of cryptic notes written in. No one, outside of the authors has any ideas what any of it means. However, there are implications that some of it may be inappropriate sexual commentary with regard to a woman named Renate Dolphin. (Odd name).

There also seem to be some written statements, hopefully affidavits from other people involved. Possibly an affidavit by a Mark Judge? It wasn’t clear to me, but Judge Kavanaugh constantly referred to a statement that seemed to be submitted by Mark Judge. What we can all take from the hearing, though, via Judge Kavanaugh’s direct testimony, is that Mark Judge, just doesn’t want to talk about any of this.

But, his testimony was critical. Why wasn’t he subpoened?

Even though, allegedly Mark Judge was there, at the incident involving Kavanaugh and Ford, his appearance into this drama is a pesky detail that the Pubs DO NOT want to touch, at all, despite the fact that the Judge testimony is critical. But hearing from Mark Judge doesn’t seem to matter much to Pub senators.

Weighing the Evidence

Indelible in the hippocampus is the laughter, the uproarious laughter between the two and their having fun at my expense.

This is what Dr. Ford says she remembers most about the sexual assault allegedly perpetrated by Judge Kavanaugh and Mark Judge.

Just wow. What a statement. It’s these kinds of statements, and the way, they have been said by Dr. Ford, that makes it very difficult, almost impossible, to discredit her.

The Pubs were smart enough not to go there.

Dr. Ford was a credible witness, certainly more credible than Judge Kavanaugh. Honest, truthful, thoughtful, brave. She did not seem to have a lying bone in her body. She was deliberate, cautious, careful, precise where information was known and honest were it was missing. Not much hemming and hawing. Never a total breakdown about beer…

Kavanaugh, on the other hand, was repeatedly, ducking, dodging, hemming, hawing, being indignantly outraged and emotional when asked really hard-hitting, pertinent questions. (A very basic distraction technique, known by the most basic con artists, of which Kavanaugh is not. He did it poorly. It seemed awkward. It seemed staged. He is not a person who is accustumed to lying.)

Dems Feinstein, Durbin and Blumenthal, though, were distracted. They asked him easy, stupid questions (in my opinion). “Is your name Kavanaugh?” Really? Dem senators? They seemed baffled by Kavanaugh’s indignation. When he refused to answer their questions, they acted stunned and confused, almost as if they were afraid to directly challenge or upset Kavanaugh in anyway, shape or form.

Dems Hirano, Klobochar, Booker and Harris, did their damn jobs. The challenged Kavanaugh to get his story straight, and stayed focused on the pertinent questions, which Kavanaugh never really did answer. He hemmed and hawed…he stammered. At one point he said, and I quote,

“I like beer, I like beer, I like beer! Don’t you like beer? I like beer.”

He seemed like he was having some sort of meltdown. He did not seem credible. He seemed to be hiding something. Don’t know what it is. But he does seem to be hiding something. I think it was pretty obvious to all involved. This is not a good look for Pubs, covering for a liar accused of attempted rape? Not a good look.

So how did the Pubs deal with this? Well they got all filibustery. They did painfully silly and simple, but ever effective, chest-beating. It works. Especially with those who don’t know how to think, basic thoughts, much less ones as complicated as weighing evidence. That is a part of the Pub base that Trump and Co has figured out how to manipulate ruthlessly. I’m not saying all Trumpsters lack critical thinking skills, but a good lot of them do; and they absolutely cannot deal with complex thought. They falter on that front.

And in a world that is becoming wickedly, frightfully smart, those particular Trumpsters are drowning in their own ignorance. And the rage of Trump is all they’ve got. They look to the Pubs and Fox news to give it to them. The Pubs delivered. Pubs did not cross-examine Kavanaugh. Pubs all made this basic rant:

“I’m mad! Dems are awful! Dems are terrible!!! Dems are making all of us miserable! Dems do terrible! Terrible things! They ask our men if they sexully assaulted people and expect them to tell the truth about it! How treacherous! How Awful! No one wants to tell the truth about this! Judge Kavanaugh, we are so sad that you had to come in here and be asked to tell the truth! It’s awful! Those awful, awful Dems!”

That is not evidence. That is not even an attempt to deal with the evidence. That is a temper-tantrum.

I wanted to laugh at Senator Grams histrionics. And honestly, they all have their moments, both Dem and Pub senators, and certainly those in the house…did you see the guy from Georgia dropping his pants and quite literally showing everyone his ass. Check out Jason Spencer, (I guess) a typical representative of the Republican Congress.

Scream really loud, and (in this case) metaphorically show your ass. That’s all most Pub Senators did today. Just showed their asses. Graham…showed his ass. Thom Tillis, said nothing substantive and showed his ass. Ted Cruz, (God Texas! That guy oozes sleaze!) showed his ass. Senator Kennedy, asked Kavanaugh, with a deep southern drawl,

Kennedy: Do you believe in God?

Amber at home: Seriously?

Kavanaugh: Yes!

Kennedy: Did you do this crime?

Kavanaugh: No!

Kennedy: Do you swear to God?

Kavanaugh: I do.

Amber at home: Are you freaking kidding me right now?

Well, apparently that settled it. Shit show ends with a Swear to God, BOOM!

And that’s the evidence. Dems kinda looked into it. Pubs ran from it.

Okay, so you take all of that evidence mentioned above and your try to make a decision. In the cases of sexual assault, the accused is typically going to lose something, if the allegations are deemed true. What they are going to lose depends on what kind of process they are involved in.

If it’s a criminal process - which this is not - the loss is going to be liberty. The accused will go to jail. And, in that case, the evidentiary standard is going to be really high — the beyond a reasonable doubt standard. Which means everyone who hears the evidence, needs to be pretty damn certain, that the evidence shows the accused committed the crime.

In this case, the United States Senators have basically been tasked with deciding whether or not Judge Kavanaugh gets promoted to the best job a judge could ever get. If the Senators decide that they believe the allegations against him, he’s not going to get that job. But as far as I know, he’d be able to keep the one he has. He’s a federal court appellate judge. So the decision then, is basically, does this guy get the promotion of his life ?

OR

Has some doubt been placed that should make the senators say: hmmmmm, maybe we wait. Maybe we explore these allegations some more. Maybe we say no thanks, and pick someone else.

It’s a different standard. This is called a preponderance of the evidence standard. With this standard, you weigh the evidence and you decide that the evidence just slightly weighs heavier on one side as opposed to another.

Honestly, all politics aside, I think that when you weigh all the information above, by a preponderance of the evidence standard, and you give a damn about doing your job with integrity, as you were elected to do in service of the American people, you gotta weigh the scales in favor of Dr. Ford and the American public at large and hold off on pushing this nomination through.

But these politicians stopped giving a damn about what was best for the American people a good decade ago. So that is not going to happen.

Politically, the Pubs best bet is to try and ram the nomination through, as fast and furiously as possible. Waiting is only going to bring about a great deal of political turmoil and fall out and trauma. Waiting doesn’t bode well for the Pubs.

Probably doesn’t bode well for the Dems either, but one could argue they’ve got a long game in their back pocket. They’ve been credited with that, but honestly? I don’t think so.

I’ve laid out all of the evidence, and honestly, I’m curious. What do you think of the evidence. I’m open to all view points, but no vitriol or base thoughts. Only critical thinkers allowed here.

Next, well get into the politics, and why the Dems and Pubs are both terrified of this particular hot potato.

Working with the Light!

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