Thursday, October 4, 2012

AVfM Nullification Debate Part II

Elam Responds

First, a public thank you to Johann the Cabbie for contributing to this debate, and for his willingness to stand up to “gender” ideologues who have tainted the rational thought community with dogma of late, treating legitimate debate as an anathema — while surrendering all pretense of objectivity to feminist ideology.

I think we will see, however, during the course of this debate, that it is not just feminism that is the problem here. While Johann rejects the irrational and convoluted sycophancy of individuals like Matt Dillahunty, and even seems to understand the etiology of the problem, he also engages in a similarly robotic mentality when making his critique of jury nullification in the case of rape.

This is most plainly obvious in his concluding statement: 
But, if a defendant is obviously guilty, a refusal to convict is morally unjustifiable.
The entire nullification argument hinges completely on the idea that obvious guilt is unattainable under the current system, specifically where “rape shield laws,” are concerned.

To ascertain guilt, relevant evidence must be weighed. If the accurate weighing of that evidence is not possible because relevant facts have been intentionally omitted, it amounts to nothing more than a magic show; smoke and mirrors from which no true picture can be gleaned. In that scenario, a fair trial is not possible. It is as easy to understand as it is logical.

Translation of Johann’s concluding remark: Yes, I just watched Mr. Teller saw Mr. Penn in half, with my own eyes. Mr. Teller is obviously guilty of people sawing. To say otherwise would be immoral.

Another part of his rebuttal depends on the implied fallacy that the problems with rape trials are essentially indistinguishable from the problems with other criminal prosecutions:
The endemic problems with our criminal justice system do not pertain to rape cases only, but are problems in any type of case, whether it be murder, drugs, robbery, or whatnot.
This is just one of many non sequiturs in his argument, and it reveals a glaring failure to understand what rape shield laws are and what they actually do. There is no logical reason, in the face of the evidence, to lump all other criminal court proceedings in with rape trials. They are conducted differently, which is the point of this debate.

All Johann has done here is to momentarily pretend that the rape shield laws he was already minimizing now don’t exist at all. Rape trials are just like all other trials, and I am heartbroken over the horrific death of Mr. Penn.

When Johann does take on the rape shield issue more directly, he mounts an unsupported, somewhat emotional defense for the existence of those laws, but fails to rigorously examine, and indeed summarily dismisses, their deleterious effects on the rights of the defendant.  Said the Cabbie: 
His [Elam’s] approach is to list two instances where rape shield laws were misapplied. That’s all. He makes no attempt to argue against the value or use of the laws.
First, whether laws are “misapplied” is only a matter of legal opinion at the moment, usually of one person. If the defendant is too poor to mount a challenge to the application of the law, then he is screwed. We will never know how many men are in prison right now because of “misapplied” laws that should not have been written in the first place.

If a bad law does not exist, it cannot be misapplied. I am sure that Johann would consider a marijuana case in the same light, as would I.

Johann was unsurprisingly critical of my position that rape shield laws were unreasonable, and asserts that “he [Elam] makes a poor attempt to disprove their reasonableness.”

There are two important things here. One, the lack of reason (though unreasonable they are) in these politically motivated laws is not so much the issue as is their impact on due process. The moment we  systematically deny a defendant the right to include evidence casting legitimate concern on the veracity of an accuser, or on possible motive to fabricate, we have not only denied them a Constitutionally guaranteed fair trial, but we have also eviscerated any opportunity to hold credible the evidence required to conclude guilt beyond a reasonable doubt.

More on that in a moment (as if I have not said it enough), but the other fact here is that rape shield laws are not necessary to address the concerns proffered by Johann to begin with. That is right. Even if you take the protection of alleged female victims to be more important than due process, it was still never necessary. Johann states in his rebuttal: 
Such an attempt [to argue against rape shield laws] would be doomed to failure, for rape shield laws are important and necessary. Sadly, we still live in a time where many potential jurors could be biased against a sexually promiscuous victim, and those biases could easily lead to the conclusion in the mind of a juror that “the slut deserved it.”
Let me take the more obvious point first, and this also directly applies to Johann’s assertion that the problem is not rape shield laws, but their proper application. Trials, at least those previous to rape shield laws, involve the examination of all relevant evidence. Federal Rule of Evidence 402 declares that irrelevant evidence is inadmissible.  Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence more probable or less probable than without the evidence.”

Information that is not relevant, as in the scenario presented by Johann, does not require rape shield laws to be excluded from a case. Let me repeat that.Information that is not relevant does not require rape shield laws to be excluded from a case.

Parts of a woman’s sexual history may or may not be relevant to a case. If a woman who was allegedly raped also happened to have 80 or 90 previous sexual partners, then that would be subject to being excluded from evidence on the basis of relevance. Being promiscuous is not evidence having any tendency to make any fact of consequence more or less probable.

If however, she had a long pattern of making false accusations against lovers she was angry with, as we saw in the Marv Albert case, then that is relevant as it goes to credibility. Had there been no rape shield law there to prompt that judge to rule against that evidence, Albert would very likely have been exonerated, as most everyone involved in the case thought he should have been.

As we saw with both the cases of Marv Albert and Oliver Jovanovic, relevant, exculpatory evidence was deemed inadmissible directly due to rape shield laws, and it cost both of those men severely, while protecting and enabling two known false accusers.

Simply allowing judges to do their jobs in the same way they do all other criminal matters is the reasonable solution to that problem in a world where no perfect solutions exist. But reasonable solutions have had little chance in an arena now governed by sexual politics. Forcing judges to play political football with court rulings does not help facilitate fair trials.

There is a larger, and I would say fatal problem here with Johann’s argument. His insistence on the legitimacy and need for rape shield laws is contingent on the fear that promiscuous women, or women who are portrayed as promiscuous will be penalized due to sexual bias in the jury.

But what of the prejudices that affect men in rape trials?

Take a look at the public reaction in the early days of the Duke Rape case, and Hofstra, and the endless string of men like Kobe Bryant and Dominique Strauss-Kahn who have been demonized and subjected to virtual public lynching by false accusations — because the prevailing public sentiment is to summarily convict men before a trial even happens.

You want to talk bias?

Let’s do, and first by stating flatly that sexual bias, which largely favors perceived female victims, does not suddenly evaporate with a jury summons.

If Johann the Cabbie is concerned with the impact on rape cases caused by sexual bias, why is he not advocating for rape shield laws, for the accused?

I will tell you why. It is because he is affected by the same one dimensional, irrational and lopsided thinking that afflicts Matt Dillahunty, just to a slightly lesser degree. He has surrendered reason for rote protective instinct that has no place in our criminal justice system where life and liberty depend on thoughtful analysis and an unfettered pursuit of the facts.

He sees women as primarily victims, in need of special treatment, yet he offers not one shred of evidence of why that special treatment is necessary, effective, reasonable or consistent with Constitutional demands. And he does not even speculate what the real impact of those special rules might be on the people they most affect.

Sound familiar?

No comments:

Post a Comment