Justice for the Justice: or, Law vs. Mobs
On Monday, October 8, 2018, Justice Brett M. Kavanaugh was formally sworn in as an Associate Justice of the Supreme Court. The event marked the official “end” of a rancorous three months that was undoubtedly the most contentious judicial nomination process in American history.
But another victory, more sweeping and fundamental in its consequences, was also achieved: the sacred presumption of innocence was defended against an ideological lynch mob who sought to destroy it.
We will never know with certainty what allegedly happened on a summer evening in 1982. There are only two people who claim “100%” certainty: Dr. Christine Ford, and now Justice Brett Kavanaugh. Dr. Ford claims certainty about what occurred to her, and Justice Kavanaugh claims certainty about what he did not do.
That makes the case a classic “he said, she said.”
In America, we know in our bones that, whether in a court or not, this means one thing: both sides get to make their case, present evidence, and an arbiter decides as to their validity. We know in our DNA that until an accusation is proven, the presumption of innocence remains with the accused. Such are the dictates of plain reason and common sense—let alone the fact that such a presumption had been defended and articulated for millennia, and a touchstone of western civilization.
Those who argue this is a strictly legal standard overlook its basis in plain reason—even kindergartners on a playground, if they get into an argument, would understand that if they were accused, but didn’t do anything wrong, they’d have the chance to explain themselves to their teacher. The presumption of innocence may have its technical legal context, but it is also a dictate of morality and ethics.
In this case, the arbiter between the accuser and the accused was the United States Senate, and the American people.
The Mitchell Report
By now, most know the basic sequence of events, and it need not be repeated here. However, we should briefly take note of the findings of Rachel Mitchell, a lawyer hired by the Senate Judiciary Committee to question Dr. Ford who has spent her career prosecuting sex crimes. She issued a devastating five-page report on the validity of Dr. Ford’s claims in light of her own testimony and evidence. Her summary was as follows:
In the legal context, here is my bottom line: A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.
Her memo went on to identify nine reasons Dr. Ford’s testimony did not add up. She expanded on each point in detail, with numerous references to both Dr. Ford’s testimony, and all the available evidence. From her report:
(1) Dr. Ford has not offered a consistent account of when the alleged assault happened.
(2) Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.
(3) When speaking with her husband, Dr. Ford changed her description of the indecent to become less specific.
(4) Dr. Ford has no memory of key details of the night in question—details that could help corroborate her account.
(5) Dr. Ford’s account of the alleged assault has not been corroborated by anyone she identified as having attended—including her lifelong friend.
(6) Dr. Ford has not offered a consistent account of the alleged assault.
(7) Dr. Ford has struggled to recall important recent events relating to her allegations, and her testimony regarding recent events raises further questions about her memory.
(8) Dr. Ford’s description of the psychological impact of the event raises questions.
(9) The activities of congressional Democrats and Dr. Fords attorneys likely affected Dr. Ford’s account.
Legal Minutiae, or Fundamental Rights?
So why does all this minutiae matter?
Because it isn’t mere minutiae—it represents the very substance of why accusations alone must never be allowed upend lives and careers, why they must never be allowed to trump the presumption of innocence, especially when the mob yells “crucify him!”
Dr. Ford’s claims didn’t add up, and Rachel Mitchell proved it. One need not even dig into all the political chicanery that took place behind the scenes. Whatever you believe about what the Democrats did, or the Republicans did, the fact remains that the accuser’s accusations did not add up. Their substance had changed multiple times; they were internally inconsistent; they referred to events supposedly nearly 40 years prior (with all the problems associated with human memory exacerbated accordingly); and not even one of the witnesses cited by Dr. Ford could corroborate her account. Some even refuted it.
On the other side, the accused, Justice Kavanaugh, produced documentary evidence of his whereabouts in the summer of 1982 (his now famous calendars); he cited the statements of the very witnesses Dr. Ford had called to corroborate her claims, as well as numerous witnesses who could speak to his character; and, given his decades in public service, including at the George W. Bush White House, where he had access to the nuclear codes, he himself had already been intensely investigated by the FBI six previous times, which included the questioning of approximately 150 friends and acquaintances, where questions about excessive drinking, etc. are standard.
To any fair-minded person, it was clear that Justice Kavanaugh was, if not innocent, at least in a far better position to substantiate his claim of innocence against Dr. Ford’s claim of guilt. That does not de-legitimize Dr. Ford’s pain, nor do I question her sincerity. But it does mean that her claims, on their face, were not anywhere strong enough to override Kavanaugh’s presumption of innocence. Recalling the Golden Rule, that we should do to others as we would have done to us, should have solved the case instantly for the American people—no one in their right mind would want the standard being applied by some to Kavanaugh to be applied to themselves.
Rachel Mitchell did an invaluable service to the country, and history, with her report. She fulfilled the role a lawyer should have in a free society, one aptly described by Frenchman Alexis de Tocqueville in his 1830’s classic, Democracy in America, where he described American lawyers as “naturally opposed to the revolutionary turn of mind and the ill-considered passions of democracy…they arbitrate between citizens and the habit of guiding the blind passions of litigants toward an outcome gives them a certain scorn for the judgment of the crowd.”
“When the American people become intoxicated by their enthusiasms or carried away by their ideas,” Tocqueville observed, “lawyers apply an almost invisible brake to slow down and halt them.”
Because they are bad people? No. Because of the presumption of innocence. Too often taken for granted, unnoticed and unseen amid the processes and tribulations of the law, is this sacred principle that underlies all of it. Accusations are not evidence, but themselves require evidence. To forget this is to subvert the rule of law, and with it civilization.
John Adams, the “Boston Massacre,” and Hated British Soldiers
Mobs are not courts. Indeed, they stand on completely opposite principles—mobs on the passions of the crowd; courts on the sober reasoning of the law.
Over the years, I have had to write several columns on the importance of the presumption of innocence. Those columns were in the context of police shootings of minorities, and were directed either at Leftists who always presumed the cops were guilty, or Conservatives who always presumed those who were killed were guilty.
In each of those columns, I used a famous story from American history to illustrate the vital importance of the presumption of innocence: the story of the Boston Massacre, and the legal defense of the despised British soldiers by none other than the anti-British Founding Father, and future President, John Adams.
In short, Adams had every reason not to take the case. He had been involved in anti-British efforts for years, and such a course would no doubt lower his reputation in Boston. Nonetheless, he knew that in a free country, accused persons were entitled to the presumption of innocence—a presumption that could only be overcome by facts and evidence. Instructively, he showed how this fundamental right was rooted in the broader English and western tradition of law. He ultimately won the case—not even one of the soldiers was convicted of murder. The evidence in fact appeared to go the other way—they had been physically threatened, and they had reacted in rational self-defense. Indeed, the whole framing of the incident as the “Boston Massacre” was one of the earliest examples of ideological propaganda in American history.
In the speech he delivered in defense of the British soldiers, John Adams coined a now famous phrase:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.
Throughout his case, Adams stressed the importance of the presumption of innocence, pointing out that it was an established principle in both English and civil law that it was better to acquit a guilty man than to convict an innocent one. Quoting John Fortescue, “a very ancient writer on the English law” who had authored In Praise of the Laws of England in the 15th century, Adams declared:
Indeed one would rather, much rather, that twenty guilty persons escape the punishment of death, than one innocent person be condemned, and suffer capitally.
He then cited another great English jurist, Lord Chief Justice Matthew Hale, this time from the 17th century:
Lord Chief Justice Hale, says, it is better five guilty persons escape, than one innocent person suffer.
William Blackstone, who was widely read by the Founders, and considered the premier 18th century commentator on English law, observed the same principle in his magisterial Commentaries on the Laws of England:
[A]ll presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer.
But, Adams emphasized, this principle was not unique to English law:
Indeed this rule is not peculiar to the English law, there never was a system of laws in the world, in which this rule did not prevail; it prevailed in the ancient Roman law, and which is more remarkable, it prevails in the modern Roman law, even the judges in the Courts of Inquisition, who with racks, burnings and scourges, examine criminals, even there, they preserve it as a maxim, that it is better the guilty should escape punishment, than the innocent suffer. Satius esse nocentem absolvi quam insentem damnari [roughly “It is preferable that the guilty be acquitted than that the innocent be condemned”], this is the temper we ought to set out with; and these the rules we are to be governed by.
One of the legal maxims of the Justinian Code of the 6th century (the “Roman law” referred to by Adams) was Affirmanti, non neganti, incumbit probatio, meaning “The proof is incumbent on the one who affirms, not on the one who denies.” Indeed, the presumption of innocence continues to be a fundamental right in all civilized nations. Article 11 of the Universal Declaration of Human Rights has enshrined it in international law.
Adams’ conclusion was masterful and passionate, citing yet another 17th century English patriot, Algernon Sidney, to make the point that the law was blind—both to the accused, and the accuser:
The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men. To use the words of a great and worthy man, a patriot, and a hero, and enlightened friend of mankind, and a martyr to liberty; I mean Algernon Sidney, who from his earliest infancy sought a tranquil retirement under the shadow of the tree of liberty, with his tongue, his pen, and his sword, “The law, (says he) no passion can disturb. Tis void of desire and fear, lust and anger. ‘Tis menc sine affectu; written reason; retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons, commands that which is good, and punishes evil in all, whether rich, or poor, high or low—Tis deaf, inexorable, inflexible.” On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder [Ps. 58:4] to the clamors of the populace.
Adams remembered a truth most of his countrymen had forgotten in the heat of the moment: to deny the presumption of innocence to anyone, even the despised British soldiers, especially when the facts and evidence pointed the other way, would be an act of arbitrary power—very much like those of King and Parliament the colonists themselves were protesting. What was at stake was not some abstract legal principle found in dusty legal documents. It was a vital principle of fairness, of liberty, the Golden Rule itself, to render unto others what we would have done to us.
While his reputation may have suffered in the short term, just a few short years later, the citizens of Massachusetts knew who they wanted to send to the Continental Congress that would go on to secure the rights of all Americans: John Adams.
The Presumption of Innocence Protects Everyone—Especially the Most Vulnerable
As I wrote in a past column on the presumption of innocence:
The lesson is that in all matters of justice, and particularly in times when so many have made ideological narratives and political gamesmanship the standard of their actions rather than truth and justice, it is essential that we judge by facts and evidence. This is especially true when we are dealing with the fates of men who retain the presumption of innocence.
To this day, it remains false to say that what happened in Boston on March 5, 1770 was a “massacre.” The name itself is a vestige of a false narrative—a narrative perpetrated by men who, while deserving of our respect and honor for their services to our country, were temporarily overcome by their own passions; men who, if not restrained by the integrity of others, would easily have ended up throwing their own integrity away…
We owe it to those men [who had been shot], but also to ourselves, to our society, and especially to those who have been denied justice because of assumptions, narratives and prejudices leveled at their own skin color, to ensure that the presumption of innocence remains intact and inviolate.
In other words, to abandon the presumption of innocence not only tends toward the ideological perversion of civil society and discourse, but toward injustice—particularly for the most vulnerable. In a social media age, where virtual and ephemeral mobs can be formed on almost any topic with ominous haste, the facts and evidence be damned, the presumption of innocence is more important than ever. This principle is one of the great bridles on human passions—passions which more often than not distort rather than enlighten our judgments. As Senator Susan Collins reminded the nation in a riveting speech explaining her support of Kavanaugh, “We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.”
Another Tocquevillian reminder would seem to be in order:
I am aware of the inherent defects in the attitude of lawyers. Nevertheless, without this combination of the legal with the democratic mind, I doubt whether democracy could govern society for long, and I hardly believe that nowadays a republic could hope to survive if the influence of lawyers in its affairs did not grow in proportion to the power of the people.
That is why the Kavanaugh moment was a seminal event in American history. It was a test of whether a politically powerful, tech-savvy, media-backed ideological lynch mob could succeed in undermining the nomination of a man against whom there was no evidence, and whose very office requires, indeed assumes, the very presumption of innocence they themselves insisted must be annulled.
Justice was done for the Justice—and thus for all of us.
 Alexis de Tocqueville, Gerald E. Bevan, trans., Democracy in America, and Two Essays on America (New York: Penguin Books, 2003), 308.
 Id. 313.
 Bryan A. Garner, ed., Black’s Law Dictionary, 10th ed. (St. Paul: Thomson Reuters, 2014), 1900.
 Tocqueville, 311.