SCOTUS Nomination II: I Like Beer

[Synobun]

Not related but re-hearing Eddy Murphy's Cosby impression in light of events, I couldn't help but notice the Knights who say Ni sound like Murphy imitating Cosby.

But in a way, kind of related amirite?

[insert Graham making references to Bill Cosby here]

 

[Timsup2nothin]

Actually, at this point there absolutely is enough evidence to convict.

Maybe. She gave very credible testimony...to the Senate. Could she repeat that quality in a courtroom? Would a jury of twelve uniformly weigh her testimony, as the only evidence, to be sufficient?

On the flip side, Kavanaugh's performance, in my opinion, was totally disqualifying in a confirmation hearing, but nowhere in his sworn testimony is something I can grab as an admission of guilt. Using his sworn testimony at trial wouldn't accomplish much, and a defense attorney who would put that nut on the stand in his own defense would be disbarred for an idiot. I'm no @metalhead so my opinion carries little weight of experience, but I'd say chances of getting a conviction are small.

If I were a prosecutor I'd be ducking the case any way that I could.

 

[BenitoChavez]

Actually, at this point there absolutely is enough evidence to convict. I'm not advocating he face trial for these allegations but if he were, he could be convicted. As others have pointed out, when the evidence is sworn testimony, juries are instructed that they may completely disregard the entire testimony of a person who has been shown to have lied at any point in their testimony.

Kavanaugh lied throughout the entire day and therefore the jury would only have the testimony of Ford and others to go on. While the testimony of some people do not directly implicate Kavanaugh, they also do not discredit Ford's accusations. They simply say they don't recall or know about the accusations, not that they didn't happen. Moreover, some people did testify that Ford made these accusations in private well before Kavanaugh was nominated.

If you throw out all Kavanaugh's testimony you are only left with Ford's and the people who know her as evidence. Their testimony is based entirely off of Ford's memory about an event that happened 30 years ago. The human memory is notoriously bad. All a defense attorney would have to do is call up an expert on human memory to cite some studies about how terrible memory is and you have reasonable doubt right there.

 

[hobbsyoyo]

On the flip side, Kavanaugh's performance, in my opinion, was totally disqualifying in a confirmation hearing, but nowhere in his sworn testimony is something I can grab as an admission of guilt or at the very least do not disprove Ford's testimony.

The point is that he doesn't have to admit guilt. He simply discredited all of his testimony by lying repeatedly under oath and it would be thrown out. This leaves only Ford's and other's testimony and it all points to him being guilty or at the very least doesn't point to Ford lying.

I'm not saying the case would be a slam dunk by any means but I do believe it could be won. You do have a point that I don't know if either Ford or Kavanaugh would repeat their performances in a real trial. If Kavanaugh simply stopped lying then I do believe he could create enough doubt to hang a jury or obtain a not-guilty verdict. I was only talking about the testimony they actually gave last week. Based on that testimony alone, he's screwed.

The funny thing is that Blumenthal reminded Kavanaugh about the legal concept of discrediting the entire testimony of someone on the stand if they are found to lie about any of their testimony. He specifically asked Kavanaugh if he knew about his concept as a warning not to lie about anything. That Kavanaugh went on to lie his ass off shows how brazen the Trumpists are to get their way.

If you throw out all Kavanaugh's testimony you are only left with Ford's and they people who know her as evidence. Their testimony is based entirely off of Ford's memory about an event that happened 30 years ago. The human memory is notoriously bad. All a defense attorney would have to do is call up an expert on human memory to cite some studies about how terrible memory is and you have reasonable doubt right there.

True, but Ford shared these allegations in private with people long before Kavanaugh was nominated. Why would she make that up? What is her motive to do so?

Again, I'm not saying this is a slam dunk but based on the evidence presented and the testimony given, Kavanaugh would be in legal jeopardy if this were an actual trial.


Also, as @metalhead or others pointed out, people are convicted on the testimony of people who are remembering events from decades past all the time. Yes, memory is fallible but that doesn't mean that a collective body of evidence and testimony don't prove a crime happened simply because the memories are old.

 

[Sommerswerd]

But in a way, kind of related amirite?

Yes

All a defense attorney would have to do is call up an expert on human memory to cite some studies about how terrible memory is and you have reasonable doubt right there.

There are no "defense attorneys" in job interviews. There is also no "calling up experts on human memory" in job interviews.

And "reasonable doubt" is not established simply by conflicting experts. There are always conflicting experts. Reasonable doubt is subjectively determined by individual jurors. There are no jurors in job interviews.

 

[Timsup2nothin]

The point is that he doesn't have to admit guilt. He simply discredited all of his testimony by lying repeatedly under oath and it would be thrown out. This leaves only Ford's and other's testimony and it all points to him being guilty.

Points to. But convince twelve jurors?

There won't be any Kavanaugh testimony. Neither side is going to want to enter his testimony to the Senate committee as evidence, and his defense isn't going to let him testify.

@BenitoChavez suggests an expert witness on the weaknesses of memory, which I wouldn't do. The jury is more than well aware that thirty year old memories can be unreliable, and an expert is liable to get maneuvered into admitting that Ford's testimony follows a pattern of credibility in the dramatic points that are clear to her in detail and the ordinary surrounding events that are unclear. Whether the expert acknowledges it or not the jurors will know from experience that that is how memory seems to work, and if the expert tries to deny it they will think poorly of the entire defense effort.

I'd rely on a single witness, no matter how credible, being insufficient to overcome reasonable doubt, and feel pretty safe doing it.

 

[Timsup2nothin]

There are no "defense attorneys" in job interviews. There is also no "calling up experts on human memory" in job interviews.

And "reasonable doubt" is not established simply by conflicting experts. There are always conflicting experts. Reasonable doubt is subjectively determined by individual jurors. There are no jurors in job interviews.

Again... as has already been pointed out... you guys really need to relax on the cracker-jack legal analysis before somebody gets hurt.

This part of the conversation has sort of moved on to the idea of taking Kavanaugh to trial, so the actual legal analyses are appropriate.

 

[hobbsyoyo]

Points to. But convince twelve jurors?

There won't be any Kavanaugh testimony. Neither side is going to want to enter his testimony to the Senate committee as evidence, and his defense isn't going to let him testify.

@BenitoChavez suggests an expert witness on the weaknesses of memory, which I wouldn't do. The jury is more than well aware that thirty year old memories can be unreliable, and an expert is liable to get maneuvered into admitting that Ford's testimony follows a pattern of credibility in the dramatic points that are clear to her in detail and the ordinary surrounding events that are unclear. Whether the expert acknowledges it or not the jurors will know from experience that that is how memory seems to work, and if the expert tries to deny it they will think poorly of the entire defense effort.

I'd rely on a single witness, no matter how credible, being insufficient to overcome reasonable doubt, and feel pretty safe doing it.

I conceded that in a real trial (separate from last week's testimony) that I think Kavanaugh could get off.

I was simply pointing out that based on the actual testimony we have, he could be in legal jeopardy if that were a hypothetical trial. And even then I've caveated that it wouldn't be a slam dunk.

 

[Synobun]

I conceded that in a real trial (separate from last week's testimony) that I think Kavanaugh could get off.

But he testified that he couldn't get off during high school, and many years beyond.

 

[Sommerswerd]

This part of the conversation has sort of moved on to the idea of taking Kavanaugh to trial, so the actual legal analyses are appropriate.

I just noticed that. My bad. I also deleted my snark about people giving their hot-takes as it was unnecessarily... snarky.

 

[hobbsyoyo]

This part of the conversation has sort of moved on to the idea of taking Kavanaugh to trial, so the actual legal analyses are appropriate.

Yeah it's kind of tricky because while some of us are actually discussing a hypothetical trial there are others who use the prospect of legal proceedings to concern troll everyone about how Ford is a dirty liar and this is a witch hunt because clearly evidence I like is real evidence and whatever.

 

[Timsup2nothin]

But he testified that he couldn't get off during high school, and many years beyond.

Ummmmm....he actually testified that he was a virgin, which is not the same as couldn't get off. Please tell me I don't have to explain this to you in any detail.

 

[Lexicus]

Yeah it's kind of tricky because while some of us are actually discussing a hypothetical trial there are dozens of others who use the prospect of legal proceedings to concern troll everyone about how Ford is a dirty liar and this is a witch hunt.

Well, it makes the rhetorical task of defending Kavanaugh simpler if you can switch into a "trial" frame of reference without letting anyone know you've done it. That way you can apply a totally different standard of evidence to the discussion from everyone else and then claim that they are engaged in a partisan witch hunt and don't care about the rights of people accused of crimes.

 

[hobbsyoyo]

Well, it makes the rhetorical task of defending Kavanaugh simpler if you can switch into a "trial" frame of reference without letting anyone know you've done it. That way you can apply a totally different standard of evidence to the discussion from everyone else and then claim that they are engaged in a partisan witch hunt and don't care about the rights of people accused of crimes.

Meanwhile they continually ask for evidence and then refuse to acknowledge it when presented beyond replying with something to the effect of Fake News.

It's funny how the Republican's actual strategy at the national level is repeated even at this purely interpersonal level by 'concerned moderates/independents'.

 

[sophie]

Ummmmm....he actually testified that he was a virgin, which is not the same as couldn't get off. Please tell me I don't have to explain this to you in any detail.

Depends on how you define "virgin"

 

[metalhead]

Kavanaugh pleads that he is a good Catholic boy so . . .

Like I said in this post, the real issue here is what Conservatives and Republicans and the folks generally on Kavanaugh's side mean when they say "evidence" and "proof" is "you must demonstrate to my individual personal subjective satisfaction that her account of how the events happened is true", which of course, is impossible, because their minds are already made up.

Yeah. I mean, you could show these people a videotape of it and they'd go, "So what does that prove?"

As insulting as I was toward J, I'll give him that at least he is giving the honest Republican answer, which is that they don't particularly care about Dr. Ford or her allegations, and therefore whatever Kav has to do to defend himself against them is perfectly acceptable.

They can't come out and say that, of course. That's why the moment with Flake and the assault victim in the elevator was so powerful, because that is exactly what she called him out on, and to his face as he tried to look away in shame. That no matter how they try to dress it up, the fact that Dr. Ford was of unimpeachable credibility in testifying about her assault means that confirming Kav to the Supreme Court is saying that you do not care about victims of sexual assault.

 

[hobbsyoyo]

Yeah. I mean, you could show these people a videotape of it and they'd go, "So what does that prove?"

This is exactly what happened with the Access Hollywood tape and the allegations of sexual assaults and misconduct by Donald Trump.

 

[GoodSarmatian]

This and similar statistics were something I knew as an intellectual curiosity since forever. It was not until the #MeToo movement that I really knew these statistics.

Part of me used to discount those statistics and think they were somewhat inflated. I no longer think like that.

I am very glad that our society is dealing with all of this out in the open, finally. It's ugly and messy and painful but we need to deal with it.

That's really f-ing depressing, isn't it ?

I mean, we all know that this stuff happens sometimes to some women, but if you told me five years ago that one in three women had to experience this crap I wouldn't have believed it or asked (probably inappropriate) questions about your (hopefully too vague) definition of sexual assault.
Then #Aufschrei became A Thing in Germany.
I dismissed much of it at first because I've made dumb, suggestive comments myself and thought many women are too sensitive to "guys being guys", but since then most of my female friends have shared stories about really harrowing encounters with guys who weren't just sleazy but physically aggressve.

 

[hobbsyoyo]

Yeah we should add the 'sexual harrassment talk' to the 'sex talk' and the 'race talk' when we raise our kids. It's not enough to assume your kid won't grow up to be a racist or a harrasser just because you raise them right. You have to be proactive and teach them and talk about these issues.

I was told that rape is bad by my parents when I asked what the word rape meant (saw it on a soap opera) but I never received a talking-to about sexual harassment or consent. My parents did cover racism very well - they bought us kids books about Martin Luther King Jr and Harriet Tubman and had multiple conversations about why racism was bad but neglected harassment and consent. I have to do better by my kids when I have them.

 

[Berzerker]

Actually, the evidence is stronger than that. Even though this was an informal gathering there is one date (July 1) on Kavanaugh's calendar when he was at a party with the people Ford says where there. Kavanaugh repeatedly lied about the calendar to make the case that:

The party had to have been on a weekend (even though he doesn't remember the party)
And his calendar shows no weekend parties
-->Therefore it didn't happen.

July 1st was conveniently a weekday

Ouch! And Kavanaugh supplied the nail for his coffin Now I have to wonder why he supplied calendars that show he attended a party with people identified by Ford. I would have been burning them.