Friday, October 5, 2012

AVfM Nullification Debate Part III

Times Square attracts the crazies. Nutters pick their spot of sidewalk and spend hours shouting and waving their arms, trying to convince any who pass by that their particular brand of crazy ain't so crazy. After awhile, one gets to recognize the regulars - the science of sin guy, the Black Israelites, even some dude playing a guitar whilst claiming to be naked, but really, he's wearing hat, boots, and tighty whities.

Reading Paul Elam's writing reminds me of those nutters. So much so that I wonder how he can get any typing done with all the arm waving and shouting. The man can type at length, but like the Times Square nutters, he produces no evidence to back up his assertions. And just like the nutters, his rants can get rather tedious.

Elam's main contention is that rape shield laws prevent the jury from hearing relevant evidence, so guilt beyond a reasonable doubt cannot possibly be ascertained. And lacking any evidence beyond mere anecdotes, he resorts to making one unfounded assertion after another.

His best attempt at providing some evidence or logic is quoting some federal evidence rules to show that rape shield laws have always been unnecessary. He fails to mention that rape shield laws are designed to instruct judges what is and what isn't relevant in rape trials.

Here, I'll give a list of his evidenceless assertions:
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.

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.

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.

...why is he [JtC] 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.
I'll ignore his arrogance of attempting to place thoughts in my mind and just worry about his complaints about rape shield laws.

Anecdotes are not evidence. In a country of over 300 million people, some will be screwed by society. Some innocents will suffer in the criminal injustice system. Every travesty is a tragedy, but Elam's listing of a few of those travesties is not evidence of an endemic problem. Elam needs to provide some actual data to prove that rape shield laws are a systemic, endemic problem.

Until then, I will continue to view him as one of the Times Square nutters.

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