Thursday, September 20, 2018
PMT: Corroborating evidence
One of the best pieces I have seen on the evolving Kavanaugh appointment story came out yesterday on NBC's website. It was written by five former federal prosecutors, including former E.D. Michigan U.S. Attorney Barbara McQuade. (And yes, it is kind of weird how people I knew at different parts of my life keep popping up in all of this. I keep waiting for IPLawGuy to be involved somehow). The McQuade group's analysis fits with some of my own thoughts, in that it recognizes that when witness stories conflict, corroborating evidence that supports one story or the other becomes very important.
I would note one thing, though: It is often easier to come up with corroborating evidence that an event did happen than to corroborate that an event did not happen, because individual data points can validate individual parts of a narrative. In other words, it is relatively easy to prove part of a story true, while it is hard to prove a negative (that is, that a story is not true) unless a simple proof--for example, an alibi- is available.
I recommend reading the whole piece, but here is part of McQuade and the others had to say:
I would note one thing, though: It is often easier to come up with corroborating evidence that an event did happen than to corroborate that an event did not happen, because individual data points can validate individual parts of a narrative. In other words, it is relatively easy to prove part of a story true, while it is hard to prove a negative (that is, that a story is not true) unless a simple proof--for example, an alibi- is available.
I recommend reading the whole piece, but here is part of McQuade and the others had to say:
"While some argue that the truth about this incident will come down to a “he said, she said” situation, that’s not how it looks to us. Prosecutors and investigators are confronted with these scenarios frequently and don’t just throw up their hands and say, “We can’t decide.” Instead, prosecutors look for corroborating evidence — and there are strong indications already that Ford is telling the truth about her attack. Here are some of those indicators:
First, there is corroboration. Ford’s therapist’s notes in 2012, provided to The Washington Post, generally record her account of the attack. To believe that this is a made-up tale to prevent Kavanaugh’s confirmation, Ford would have had to plant the seeds of this story in 2012. That makes no sense.
Second, while not determinative, the fact that Ford passed a polygraph administered by a former FBI agent lends credence to her claims. Polygraph exams are inadmissible in court because they are not always reliable, but the FBI and other law enforcement agencies frequently use polygraph tests to assess the credibility of witnesses and defendants."
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I suspect the corroboration dynamic might be slightly different since you are dealing with all boy and all girl high schools. There was a great (very long) piece in the Washington Post yesterday. It took place in Arlington, Texas and gets into the posturing that takes place to make the victim to be the one at fault. IPLawGuy - can you link the article? I have surpassed my 'free' views for the month.
It is also difficult for me to believe that he didn't know this was out there and could show its ugly head. And he darn well told Chuck Grassley. That is why they painted him as a family man and man active in his community.
And how do you have a list, readily available with 60 plus signatures of women supporting you and your character from 30 years ago? Especially when you went to an all boys school. I mean, you lived down the street from me in high school and I am pretty sure you were a good guy, but we didn't hang out except for some shared school activities like FCA and varsity club.
It is also difficult for me to believe that he didn't know this was out there and could show its ugly head. And he darn well told Chuck Grassley. That is why they painted him as a family man and man active in his community.
And how do you have a list, readily available with 60 plus signatures of women supporting you and your character from 30 years ago? Especially when you went to an all boys school. I mean, you lived down the street from me in high school and I am pretty sure you were a good guy, but we didn't hang out except for some shared school activities like FCA and varsity club.
I don't know what happened thirty years ago. We probably never will know. Even so, Bret Kavanaugh is spending a lot of time at the White House getting prepared for his potential testimony. I do believe that he already knows that he will be safe when he says under oath that he doesn't remember, like his other friends have already testified. We have had a recent epidemic of convenient
" not remembering" and a lack of "lets get to the truth" moments. Jeff Sessions set new records for conveniently lost memories. Who knows what is in someone else's head?
I don't think we will ever know what is in Judge Kavanaugh's mind. I think he is too smart. We do know that on the court and in his speeches he has consistently shown his support for the powerful over those less powerful, while limiting the actions of the individual to protect themselves. Holding someone down and putting a hand over their mouth could be an accurate portrayal of how this confirmation hearing is being handled, which the Judge seems most comfortable with.
It has been suggested that if Bret Kavanaugh is rejected he will be replaced with someone who has openly shown their positions on issues. Even though we may disagree their honesty would be refreshing.
" not remembering" and a lack of "lets get to the truth" moments. Jeff Sessions set new records for conveniently lost memories. Who knows what is in someone else's head?
I don't think we will ever know what is in Judge Kavanaugh's mind. I think he is too smart. We do know that on the court and in his speeches he has consistently shown his support for the powerful over those less powerful, while limiting the actions of the individual to protect themselves. Holding someone down and putting a hand over their mouth could be an accurate portrayal of how this confirmation hearing is being handled, which the Judge seems most comfortable with.
It has been suggested that if Bret Kavanaugh is rejected he will be replaced with someone who has openly shown their positions on issues. Even though we may disagree their honesty would be refreshing.
@Christine--AP put out this story today on how the 65-signature letter of support came together. It was, AP reports, organized by some of the women who signed the letter: "Women who organized and signed it say it was a rapid response by a social network that endures decades after they graduated. They say it was easy to mobilize: a chain of friends calling, texting and emailing friends from a Washington-area world where many still live and see each other." Article here.
@Prof--The McQuade et al. piece raises some interesting questions, but it illustrates the point that people see what they want to see here. To conclude from the therapist's notes (which at minimum depict a slightly different version of the alleged assault) and the polygraph (which is problematic for all sorts of reasons) that this case is now more than a "'he said, she said' situation," as the authors put it, is a reach. Take their point about Ford's naming of a defense witness, Mark Judge. The authors cite this as strong evidence that Ford is telling the truth. After all, why offer up an exculpatory witness? But Judge has written extensively about his high school drunkenness, potentially implicating Kavanaugh in one story about a character with the fictitious name "Bart O'Kavanaugh." This has been widely cited as support for Ford's claims. We're right back into he said, she said territory.
Though not cited by the authors, the recent hubbub around one of Ford's schoolmates, Christina King Miranda, offers the same result. King first said (via Facebook), “This incident did happen. Many of us heard about it in school and Christine’s recollection should be more than enough for us to truly, deeply know that the accusation is true.” Today, King said "That it happened or not, I have no idea…I can’t say that it did or didn’t.” He said, she said.
Still, The allegations are serious, and if true (by a higher standard of evidence than has been met so far) are disqualifying. I think the allegations should be further vetted before a final vote on Kavanaugh--on that point, I agree with McQuaid et al. However, given the choice between an FBI probe and a judiciary committee hearing, I prefer the latter. Whatever the result, an FBI investigation in today's political climate will resolve nothing. I particularly like Sen. Susan Collins' proposal, which would at least offer some public window into the facts and the credibility of the witnesses.
@Prof--The McQuade et al. piece raises some interesting questions, but it illustrates the point that people see what they want to see here. To conclude from the therapist's notes (which at minimum depict a slightly different version of the alleged assault) and the polygraph (which is problematic for all sorts of reasons) that this case is now more than a "'he said, she said' situation," as the authors put it, is a reach. Take their point about Ford's naming of a defense witness, Mark Judge. The authors cite this as strong evidence that Ford is telling the truth. After all, why offer up an exculpatory witness? But Judge has written extensively about his high school drunkenness, potentially implicating Kavanaugh in one story about a character with the fictitious name "Bart O'Kavanaugh." This has been widely cited as support for Ford's claims. We're right back into he said, she said territory.
Though not cited by the authors, the recent hubbub around one of Ford's schoolmates, Christina King Miranda, offers the same result. King first said (via Facebook), “This incident did happen. Many of us heard about it in school and Christine’s recollection should be more than enough for us to truly, deeply know that the accusation is true.” Today, King said "That it happened or not, I have no idea…I can’t say that it did or didn’t.” He said, she said.
Still, The allegations are serious, and if true (by a higher standard of evidence than has been met so far) are disqualifying. I think the allegations should be further vetted before a final vote on Kavanaugh--on that point, I agree with McQuaid et al. However, given the choice between an FBI probe and a judiciary committee hearing, I prefer the latter. Whatever the result, an FBI investigation in today's political climate will resolve nothing. I particularly like Sen. Susan Collins' proposal, which would at least offer some public window into the facts and the credibility of the witnesses.
We don't have to choose between an FBI investigation and a judiciary committee hearing-- the preferred route is to have both, from the perspective of wanting the most facts to come out.
A couple of days ago SillyAmerican made a comment about Kavanaugh’s line of questioning in Ken Starr’s investigation, something that stuck with me too. How all the lurid details Kavanaugh framed in “If Monica Lewinsky says ..… would she be lying?” format surely humiliated Bill Clinton but ended up hurting Monica Lewinsky more. Perhaps he would have reframed those questions a decade later upon becoming the father of two daughters, but the mind bending thing remains: he is up for a LIFELONG job and his decisions will have lifelong effects. How does someone frame this fact into all this talk of investigations and how long the delay would be for this and that, for guy who will be in the job way after many of the people now rushing to give it to him will be long dead.
@CTL - thanks had not heard this explanation. Let's be honest I'm not sure I have 60 people from high school that could vouch for my character or actions. And there are only a few I would comfortably sign a letter for today.
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