I came upon this article when someone sent me the tweet below (I don’t know who Cathy Young is). The caption is pretty snarky, but the article in The Atlantic by Megan Garber, which you can access by clicking on the link or the bottom part of the tweet, justifies the snark. It’s really a pretty dire article that criticizes due process because in some cases (read: accusations of sexual misconduct), “due process” involves making the witnesses uncomfortable or upset, and causing harm. And it can’t guarantee justice.
Look at that, an article openly bashing the idea of due process and the presumption of innocence. Terrible people, those right-wing Trump fa-
oh no wait it's a progressive feminist columnist for a major publication https://t.co/iIwtDnC90W
— Cathy Young (@CathyYoung63) February 8, 2020
The article is about how the defense lawyers for Harvey Weinstein have been going pretty strongly after the witnesses, sometimes portraying them as forgetful, imperfect or possibly making stuff up. Further, some of the stuff that has come out, whether it be Weinstein’s misshapen genitals or the tampon of one of his alleged victims, is ugly. I’m not quite sure what the “lies” of due process are (the words “lie” or “lies” occur only in the headline), but it seems to be that, as the headline says, due process seems reasonable and straightforward, but can be very ugly, and not produce the result that we consider “just”. But those aren’t really “lies”.
Garber’s point, as far as she has a point, seems to be that due process is overrated because of the difficulties it creates for witnesses in cases like the Weinstein trial. She doesn’t go so far as to argue that the rules of evidence should be suspended or weakened, but that’s what I glean from her article. Here are some excerpts. (The emphasis is mine.)
Donald Trump, defending a staffer who had been accused of domestic violence, joined the chorus: “Is there no such thing any longer as Due Process?”
Of course there is. And it has been on display in Weinstein’s long-awaited criminal trial. That trial has been, even as blunt-force legal proceedings go, particularly ugly. The women who have accused him of rape and other forms of assault have told graphic and harrowing stories, often tearfully, on the stand. (Weinstein has denied all charges of nonconsensual sexual encounters.) They have spoken of pleas ignored; of pants ripped off; of a tampon forcibly removed; of pain; of degradation; of threats; of fear. Weinstein, too, has endured his own humiliations as the women have testified: Jessica Mann, a former aspiring actor who alleges that Weinstein raped her, said last week that Weinstein has genital deformities. As evidence of her claim, a picture of Weinstein—naked—was displayed to the jury.
No person shall be deprived “of life, liberty, or property, without due process of law.” Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.
Garber then reaches her conclusion, referring to an interview of one of Weinstein’s attorneys, Donna Rotunno, by New York Times reporter Megan Twohey (my emphasis):
The structure of the criminal trial, when it deals with the intimacies of sex, means that testifying—the ostensibly straightforward act of telling one’s story—can require extreme bravery. “There is absolutely no risk for a woman to come forward now and make a claim. Zero,” Rotunno told Twohey. Here, however, is one of the many possible counterarguments: “He held me down on the bed and he forced himself on me orally,” Haleyi told the jury. “I was on my period. I had a tampon in there. I was mortified.” Here is another: Mann sobbed as she told the court that Weinstein had raped her. She hyperventilated. When she was given a break, she was heard screaming from a back room. She had spent several hours testifying. “Defense lawyers again portrayed her as an opportunistic manipulator who had a long romantic relationship with the producer,” is how a Times subheading summed up part of the time she’d spent on the stand.
This is due process at work. Whether the process will result in justice is a notably different matter. The prosecution rested its case on Thursday, after two weeks of testimony, with weeks’ worth of rebuttal from the defense likely to follow. As Weinstein was leaving court last Friday afternoon, after Mann’s testimony about his body, a reporter asked for his reaction to the proceedings. This was Weinstein’s reply: “Wait to see what the lawyers say about her.”
In my opinion, Weinstein is guilty, as there is too much concordant evidence pointing to his guilt. But he deserves a fair trial. And a fair trial means, if it means anything, that the prosecution must prove its case beyond a reasonable doubt. And that, in turn, requires a vigorous defense, in which defense attorneys use every legal opening they can to cast doubt on the prosecution’s story, and on their witnesses. And there are rules that must be followed; when they’re not, the judge says “Objection sustained.” Yes, it’s grueling, and no witness escapes unscathed.
Yes, it can be brutal, and victims may get retraumatized. But what is the alternative? If due process doesn’t “result in justice”—which seems to be one of the other lies that Garber refers to—what is her alternative? I don’t see any, not so long as guilt, with its sentence in this case a lifetime behind bars, must be proved beyond reasonable doubt. Does Garber want to use the Title IX standards of “preponderance of evidence” instead? I don’t think any of us would support such a system.
When I was an expert witness for the defense in DNA cases, which often involved rape and murder, I was at first horrified at how the prosecution attorneys would go after me, questioning my credentials (“Really, Dr. Coyne—you work on flies. How can you have any expertise in human genetics?”), and probing for any weakness they could, even stuff that I thought was unfair (“You can’t simply add the probability of lab error to the probability of a random match. That’s apples and oranges!”). But later I came to realize that this kind of probing and jousting, particularly on the side of the defense (I worked for overburdened and underpaid public defenders who were amazingly dedicated), is necessary to air every possible weakness in a case.
Again, if Garber has an alternative to due process that causes less “harm,” I’d like to hear what it is. No process can guarantee justice, but due process is, at present, the best we’ve got.