Tuesday, September 18, 2018

Evidence, Confirmation, and Kavanaugh

The confirmation hearings and process for Judge Brett Kavanaugh have proven a very interesting lesson in the importance of evidence.

To being with the first day of his hearings began with the Democratic members of the committee moving for a delay due to issues with Judge Kavanaugh's record being produced to them.  (I'm not going to address the protesters as they are an unrelated issue).  The Democrats complained that 100,000 pages from Kavanaugh's tenure in the Bush White House had been withheld and further complained about the release of 45,000 pages the night before the hearing, a move commonly known as a "document dump."  And while the Democratic's took the histrionics a bit far, there is validity to their complaints.

First, regarding the missing pages.  The purpose of discovery or disclosure is to lead to the discovery of admissible evidence, that is evidence that might be relevant for trial.  It is purposefully broad, as the entire goal of the discovery process is to get to the truth.  There are exceptions to what can be discovered, but by-and-large information that might be relevant will generally be made available to both parties in suit.  We do not want parties winning a suit by withholding relevant information.  By concealment.  We want the truth out, so the truth can set us free, literally and metaphorically.

The same holds true in these political proceedings.  We do not want appointments to succeed because of concealment or a lack of disclosure.  Particularly with judges, where precedence will matter and where their appointment will be a life-time one, we want the full-record available for examination and thorough debate.  We want the members of the committee to be able to review as much as possible regarding the candidate's record, to determine the most important questions that the candidate should address.  They need to be able to sort through the whole set to see if there are any surprises. If there are things that would affect their vote.  And to be able to review such materials in a sufficient amount of time before the hearing.

Second, regarding the "document dump."  "Document dump" refers to the practice of sending your opponents thousands to millions of pages of documents, sometimes of very little value, often as close to the discovery deadline as possible, to make it very difficult for the opposition to sift through the documents to find anything useful.  It can be used to bury damning or harmful documents, forcing the opposition to really have to work in order to be able to find them.

Contrary to popular opinion, it's not good practice for attorneys to engage in a "document dump."  First, modern discovery really doesn't work that way anymore.  With most documents being digitally stored (email, computer files, etc) the bounds of discovery are often set through search terms and custodian identification.  Negotiating search terms can often be one of the more tedious negotiations in the process just to ensure you capture what you want, without bringing back too much extra with it.  So even for those companies that just run the terms and produce nearly sight unseen, the set is generally more limited than it used to be in the past.  Second, missteps with discovery can lead to heavy sanctions, up to and including "death penalty sanctions," like the striking of the parties' pleadings.

We should expect better than a document dump the night before the committee hearing.  There is no reason to push this appointment through on such an accelerated time frame, other than politics. It is sad that we are at the point where such appointments are now voted on strict party lines, but it does not excuse a hurried procedure. We've seen what terrible results come from bills too large pushed through Congress with little reading.  We do not need that in our appointment process as well.

So, while the Democrats deserve no praise for their theatrics in making their objections so theatrical at the beginning of the hearing, the Republicans likewise deserve no praise for their attempts to overly expedite the process, leading to the concealment of documents.

Another interesting turn regarding the process came with the discussion of use of the "Committee Confidential" designation.  Before the third day of the hearing, Senator Cory Booker released "committee confidential" documents without the approval of the committee, so the documents could be discussed in the hearings.  Again, bad actions and histrionics by Republicans and Democrats alike.

The "committee confidential" designation is one that applies only to the committee process, here the judicial committee, and has no connection to actual designations for national security.  It has been used in the past to cover potential embarrassing or sensitive materials.  It was in the past, a designation applied by agreement of both parties in the committee.  It referred to areas both parties agreed would not be discussed.  Here, Chairman Senator Charles Grassley (R) alone designated the documents committee confidential.  And the Democrats then fought to have the designation removed, to the point of releasing the documents in direct defiance.  The issue ended up being moot, as the documents released were cleared for release very early that morning (2:00 am - 3:00 am).  I suppose no one read their email that morning.

Again, likely a battle that could have been completely avoided, had the parties been a little more patient in scheduling.

Finally, we come to the new issue that has come up through the nomination and hearing process.  Judge Kavanaugh has been accused of sexual assault (attempted rape) in the 1980s by Christine Blasey Ford, a fellow high school student in suburban Maryland at the time.  Ford alleges that Kavanaugh and a classmate, Mark Judge, both stumbling drunk at the time, corralled her into a bedroom during a gathering of teenagers, pinned her to a bed, groped her over her clothes, and attempted to remove her clothes.  When she tried to scream, she alleges Kavanaugh put her hand over her mouth and Judge turned up the stereo to muffle the sounds.

Ford contacted the Washington Post through a tip line in July when Kavanaugh was announced on a short list, contacted her local congresswoman, Anna G. Eshoo, and sent a letter to Senator Diane Feinstein, the ranking Democrat on the Judiciary Committee.  In all methods of contact, Ford asked to remain anonymous and confidential, but wished to pass on her story and concern.  Ultimately, she decided she did not want to go public with her story due to the upheaval it would bring to her family.

Ford's story leaked in the Intercept on Wednesday, September 12, 2018, who reported on the letter that Senator Feinstein had received.  Though Senator Feinstein had the letter since July, she released a statement revealing that she kept it confidential as requested, but referred the matter to federal investigation.  By Friday, September 14, 2018, the New York times reported the letter's contents, but not the author. Ford then decided to come forward through an interview with the Washington Post on Sunday, September 16, 2018.

Kavanaugh categorically denies the allegations.  Both Kavanaugh and Ford have agreed to testify before Congress regarding the allegationsAnd the senate committee will hold a public hearing on the issue.

And now we have one of the most challenging evidentiary cases affecting the nomination; what essentially boils down to the he said/she said all to common in sexual assault cases.  And the battle lines have been drawn.

Conservatives are quick to point out how and why Ford is lying.  Because it happened so long ago, because she waited so long to tell anyone, because she first gave notice anonymously, because it's only happening now that Kavanaugh is nominated for a high office.  Her liberal bias and donations are showing so she can block his nomination - she has the most to gain.

Liberals are quick to side with Ford against Kavanaugh, choosing to immediately believe the accuser.  They argue he has the most to lose; of course he would lie to protect his interests.  Or worse, could it be an episode where he was so blackout drunk he remembers nothing.  The other alleged perpetrator's book includes mention that would seem to paint Kavanaugh as a pretty hard partyer and drinker at the time.  Further, it seems odd Kavanaugh would be so quickly able to get 65 female friends from that time period to be able to write him a character recommendation.

Of course, all of those views in those two paragraphs above are speculation.  Our system of jurisprudence requires two things: we take the allegations seriously (we believe them and we investigate them fully) and that the accused is innocent until proven guilty.  The allegations are not proof.  They are the start of the process and they must be treated with appropriate weight.  We cannot just dismiss them out of hand.

To Ford's accusations, it appears she has notes from her therapist regarding the incident dating back to 2012, when she first discussed it, and there are multiple mentions from that time forward with her therapist and husband.  She further has undergone and passed a lie detector test regarding her allegations of the incident at the advice of counsel.

And we should not be surprised at any delay in a sexual assault victim coming forward.  It is much, much more common than you can imagine.  It is in fact, more surprising that she ever decided to come forward at all.  It is believed only 15.8% to 35% of all sexual assaults are ever reported.

So we have a nomination process shaping up now to be a lot more like Clarence Thomas' nomination than anyone would have expected, with major differences of course.  There the accusations spoke to Thomas' actions while in government life.  Here, the accusations go to Kavanaugh's youth.  At what point do the actions of our youth become the "foolishness of our youth?"  Though it does not seem that there was any personal atonement according to Ford, what is the proper penitence for one apparent horrible action in your youth?  And the more serious question, was it truly only the one incident or will we see more allegations come forward?

Further, the allegations against Thomas went to sexual harassment; against Kavanaugh, sexual assault.  Surely that raises the stakes and the severity, but to what degree?  If the allegations are true, it would seem he deserves some punishment from the crime, but to what ends?  What would be enough?  Does blocking him from the Court satisfy the wrong or is there more that would need to be levied?  Would charges be brought and criminal penalty?

These are the kinds of questions now before the Committee and the public.  And it's further confirmation of why these confirmation proceedings are so important.  Why they should not be rushed.  Why all evidence from the person's record of communications to the letters received by the committee members regarding the nominee should be made available and reviewable by the committee in a timely fashion.  Why the hearing that is now before the committee will be the most important hearing of the entire process.

Evidence matters.

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