Author: hollycville

Well, this particular battle is done. It started with the likelihood that Brett Kavanaugh would narrowly be confirmed to the Supreme Court, with all Republicans and a few conservative democrats voting for his confirmation and the vast majority voting against him on the basis of his judicial philosophy. It ended with pretty much that result. The struggle for what was effectively the votes of Senators Flake, Collins, Manchin, and Murkowski left us all emotionally exhausted, angry, and indignant. I have a lot of opinions about what happened as a person and as a woman that will stay between me and the ballot box for now. I do want to share some thoughts as an attorney, though.

I watched sadly over the past few weeks as really important legal concepts and protections were fallaciously weaponized in this conflict. I know this “as an attorney” appeal to authority only holds so much weight, as many other attorneys will disagree, but this is coming from my experience as (mostly) a criminal trial attorney. I have prosecuted sexual offenders and obtained convictions and failed to,  I have vetted complaints of sexual violence and decided not to bring charges, I have represented people charged with crimes of sexual violence who were guilty, I have represented people charged with or under investigation for crimes of sexual violence who were innocent, and I have represented some where I honestly still don’t know what happened. I have represented victims of sexual violence in protective order and custody proceedings, men, women, and children; I have represented those charged with sexual violence in the same. It’s a complicated and heart-breaking world out there and those who try to simplify the issues are committing a grave disservice.

Due Process

Due Process as a legal principle is complicated in its application but as a concept is easy to comprehend. It means that if the government is going to take something that you have an interest in—life, liberty, property—then the process needs to be fundamentally fair. What is fundamentally fair depends on the interest protected.

If you are charged with a criminal offense that carries the possibility of a death sentence, due process looks a lot different than if you are given a parking ticket, because the interest at stake is so qualitatively different. Right to counsel, right to discovery, right to a jury trial, right to appeal, right against self-incrimination attach—and within those rights are secondary rights that vary according to the level of crime or liberty or property interest.

A job can be a property interest if a person can establish a legitimate claim of entitlement to it. If the entitlement is established, then due process attaches and one is entitled to notice, an opportunity to be meaningfully heard, and a decision supported by substantive evidence. Legally speaking, we are almost always dealing with termination or suspension or demotion here, because people don’t have a legitimate claim of entitlement to jobs they have not yet been given.

When people talked about “due process” in reference to Brett Kavanaugh, what they really should have said is they thought that anything the Senate does as a government body should be fundamentally fair. Using concepts of legal due process to express this was misleading, because Judge Kavanaugh did not have a legal entitlement to the job. The Senate process should be fair to all participants, including Judge Kavanagh, but I would not use the term “due process” to describe that fairness, because that carries legal significant that is inapplicable to this proceeding.

FBI Investigation

Judge Kavanagh had every right not to volunteer to subject himself to an FBI investigation and I thought it unfair that his refusal to ask for one was held against him. The FBI doesn’t hand out gold stickers—they investigate crimes and criminal allegations. The best result of an FBI investigation for Judge Kavanagh was the status quo. I will never hold against a person the decision not to volunteer to be the subject of a criminal investigation.

Presumption of Innocence

One aspect of due process is the presumption of innocence. As a legal principle, this applies only to situations where someone is charged with a crime. That does not mean alleged to have done something criminal in another proceeding—it means only charged with a crime by a sovereign and facing the possibility of a criminal conviction. Legally, there was no presumption of innocence applicable to Judge Kavanagh’s case. There is something to be said for giving all people the benefit of the doubt—that is one of the charitable virtues and part of fundamental fairness—but we should not call it the presumption of innocence.

There are varying presumptions and burdens of proof in the law. Oftentimes the burden, whatever it is, lies with the government or the party bringing the allegations. Other times it does not. My clients often face “presumptions against bond” or a search pursuant to a warrant is “presumptively valid” and the burden is on my client to prove it was not.

Also, I find it sad that it took allegations against a conservative judge to get a lot of conservatives touting the glories of presumptions of innocence, due process, and quantum of evidence. For years they have been busy being tough on crime, legislating mandatory minimums, expanding felonies, three-strikes-and-you’re out legislation, etc, all of which have made a laughing stock of these treasured rights. That is a subject for another day.

To the extent that we give everyone the benefit of the doubt in a fundamentally fair hearing, that goes to Dr. Ford as well as Judge Kavanaugh. For many he was presumed innocent of these allegations and Dr. Ford presumed guilty of perjury; for others, the opposite.

Corroborating Evidence

We heard so much about corroborating evidence and the lack thereof over the past few weeks. First of all, this wasn’t a criminal hearing and it is not clear what the legal standard for evidence should be. It is certainly not the criminal standard of beyond a reasonable doubt, but it is also not clear that it is preponderance of the evidence standard cited by Senator Collins. Whatever it is or should be, there is no rule of due process, even in a criminal case, that there must be corroborating evidence. It helps, but it is not required. For example:

A woman lives with her husband and his brother and one day while her husband is gone, the brother sexually assaults her. The brother denies it and there is no rape so no physical injury or DNA evidence—just her word against the brother’s. The legal, and sometimes biblical, standards for corroboration that have been touted by many over the past few weeks mean that this case can never be prosecuted, the woman could never obtain a protective order or money damages, could not get him evicted, and no one could refuse to hire him for any job on the basis of her uncorroborated allegations. This can’t be so.

Furthermore, the definition of corroborating evidence was too narrow. It seems people wanted a confession from Judge Kavanagh or another witness who said they saw it happen in order to believe there was corroborating evidence. That is not what corroborating evidence means. Corroborating evidence could be Kavanagh’s calendar that proved he hung out with some of the people that Dr. Ford recalled being present. It could be previous disclosures to her husband or therapist of sexual assault by a prominent judge who might one day be on the Supreme Court. It is any evidence that tends to show a witness’s opportunity for knowledge, confirmation of details of the witness’ testimony, however minor, and evidence that contradicts allegations of a witness’ motivation to lie. Corroborating evidence doesn’t have to be particularly compelling to exist and everyone from the president to the social media commentators need to stop touting this falsehood.

Believe Women

I’ll admit that while I think sexual assaults have gone under-prosecuted and victims of sexual assault under-believed and unnecessarily vilified, there are places in our society where we have over-corrected and denied due process to those accused of sexual assault. Mere allegations absent intense investigation and credibility determinations should not be sufficient to take away the liberty or property of the accused. And while some who say “believe women” may mean that every allegation of sexual assault is to be taken as true at face value and the man accused never seen in public again, I do not believe that is only understanding of this mantra or even the mainstream.

What “believe women” should mean is that every allegation of sexual assault should be taken seriously and vetted for its accuracy and the prominence, power, or reputation of the accused should not be imputed to the accused as a defense. For too long, women have been seen to be victims of hysteria and irrational impulses, so their claims of sexual assault have been as weightless on the scales of justice as a pile of balloons, whereas the insistence of a powerful man that the claims were false fell on the scales like a chunk of lead. “Believe women” is an important effort to restore the balance. It does not and should not, tip the scales in the opposite direction, making protests of innocence irrelevant and every allegation fatal.

Sometimes you read a book and every page or so you are impressed by the profundity of a particular thought or turn of phrase. Not so this book. Kindle kept underlining passages that were “most underlined by readers” and I passed each one without a particular urge to stop and dwell on the selection.  It was a thoroughly engaging, read, though, made so more by the creative progressions, transitions of voices, and gripping exploration of life themes than by profound soundbites.

Sing, Unburied, Sing, starts from the perspective of Jojo, a 13 year old boy in southern Mississippi. He lives with his Pap River, Mam Philomene, mother Leonie, and three year old sister, Kayla. He is biracial, as Leonie is black and his father Michael, who is in prison when the story opens, is white. He adores his Pap, who is caring, protective, and occasionally tells him stories about his own stay in prison when he was young. Pap was arrested as a juvenile for being in the same location as his brother, who had just gotten into a bar fight. “Harboring a Fugitive” was a generous felony in southern Mississippi in Pap’s youth. Mam is dying of cancer and appears throughout the book as a nurturing spiritualist, who uses plants to heal, who senses spirits, and who sees visions. Jojo is not connected to his mother, who is a drug addict with occasional fits of “wanting to be a family.” Her drug addictions (meth and cocaine) are secondary to her violent and passionate Michael Addiction. They fight hard and love hard. She forgets about her children from time to time and then return and tries to be Mom. The end result is that Jojo connects to his Pap and Mam as parents much more so than to Michael and Leonie, and Kayla connects to Jojo, who cares for her with touching tenderness and responsibility.

Leonie is the second of the three voices that we hear in Sing, Unburied, Sing. She is the most unsympathetic, but occasionally we see what she wants to be and just doesn’t have the strength to attain. She loves her parents, she loves Michael, and she occasionally wishes she could be a mother to her children. She is jealous of Kayla’s attachment to Jojo. When she gets high, she sees the ghost of her brother Given, who was killed as a young man in an hunting “accident.” He agreed to a competition in which he, armed with a bow and arrow, bested other young men armed with bullets and rifles. He was shot in anger, but his death was deemed an accident upon the characterization of the white man who shot him. Michael was related to the man who murdered Given, which adds an interesting dimension to the love story between him and Leonie. Given appears when Leonie is high, a character full of life, joy, resiliency, and potential. He was the child of his parent’s old age, thus his name, and his death is the end of their joy, with the exception of Jojo and Kayla. 

When Michael finishes his prison sentence, Leonie decides that they all will be a family again and determines to bring Jojo and Kayla with her to pick him up. Together with her work associate/friend, and fellow addict, Misty, they drive several hours north to pick up Michael. This road trip is the bulk of the book and is utterly miserable. Kayla gets sick immediately, and there is a heartbreaking scene where Leonie decides to channel her mother and feed Kayla a mixture of herbs to help her nausea. Jojo doesn’t trust his mother’s ability to medicate, and gags Kayla after her mother feeds her the herbal mixture, to make her throw up the poison. Kayla clings to Jojo even more when sick, causing Leonie to be jealous.

Despite Leonie’s resolution to make a fresh start and be a family with Michael, they stop by Michael’s attorney’s  house, who also happens to be a meth dealer. She and Misty use and pick up meth from him, hiding it in a compartment beneath the car.

The final voice we hear is Richie. He was child who was imprisoned with Pap years ago. Pap tells Jojo stories about protecting Richie from sexual predators and other forms of physical abuse when he was in prison. He repeats the beginning and middle of Richie’s tale frequently, but never tells the end, leaving Jojo curious. Richie gets in the car with Jojo at prison when they pick up Michael as if he is finally able to leave some haunted past existence. Jojo is the only one who sees him. Like Leonie sees Given, Jojo sees Richie. Richie, unlike Given, is not happy, resilient, and carefree. He is sorrowful and haunted. He doesn’t understand what has happened to him and tells Jojo he needs to hear the end of the story from River. He pleads with Jojo to elicit that from River when they get home.

Michael drives home, he and Leonie euphoric in their reunification and determination to be a family. The only problem is they virtually forget about their two children in the backseat. Michael sees flashing lights behind his car and freaks out because he doesn’t have a license. He and Leonie make a moving driver’s seat switch and Leonie swallows the bag of meth they got from Michael’s attorney. The cop puts them all in handcuffs and points a gun at Jojo, who is trying to keep Kayla calm. Finally Kayla pukes on the officer, who lets them all go with a warning and disgust. Michael has to feed Leonie charcoal and milk and make her throw up to save her from the amount of meth she swallowed.

When they get home, Mam and Pap are not there, so Michael insists they go to his parents, who have always been hostile to Leonie and the kids because she is black. Michael thinks things will work out this time, but they do not, and they end up fleeing after Michael beats up his father for saying horrible things. His mother is much more sympathetic and comforts Michael, covered in his father’s blood, as he leaves.

They go back and find Mam and Pap home and welcoming. Mam knows she will die soon and asks Leonie to gather stones from a graveyard and pray to spirits on her behalf so she can walk through the door and not be in limbo on earth, like those whose deaths were tragic and violent. Richie, visible to Jojo, and Given, visible to Leonie, remain at Mam and Pap’s farm. Jojo gets Richie to promise he will leave if he finds out the end of the story. Pap tells Jojo the end of the story and it almost breaks him. Richie came upon an inmate who had just raped a white woman and was covered in her blood. This inmate was mentally ill and was known to be violent, so when he demanded Richie run with him, he did. River “ran the dogs” at that time and was shortly thereafter in pursuit of the rapist and Richie. They cornered the rapist, and the authorities murdered him in the most gruesome, agonizing way. When River found Richie, trembling innocently on the ground, he knew it was only a matter of time before the authorities finished him off like the rapist. Speaking words of comfort to Richie, he stabbed him in the neck and killed him quickly. Pap remained tormented by that memory.

Richie hears the song of the dead that are in a place of sunset, bliss, and peace. He tries to sing it, but his song comes out haunting and tragic. He wants to get to the place of bliss but he can’t.

Leonie and Michael don’t change much—still determined to do better but not enough to overcome their addictions. Mam passes away with her family present, as well as the ghosts of Richie and Given. She is tormented by the ghost of Richie, wanting it to be Given who leads her to the next life. Jojo orders Richie to leave, and in the end it is Given who walks Mam through the door.

The book ends with Jojo encountering Richie again, surprised that he has not left. Richie shows Jojo a tree full of ghosts who have not been able to go to the place of song and sunset—young and old who have been lynched, raped, beaten, murdered, and abused by people in power. Kayla sees them too, and runs to the tree and sings a song of innocence to them.

This is a book of love and suffering among Outcasts. Even Michael, who is white and the product of racist parents, is poor, drug addicted, imprisoned, and judged by his family for his choice of love. They all have ghosts that they see and that influence them. They are all products of their decisions and their environments. Jojo, Kayla, Mam, and Pap tug at your heart strings and make you grieve for the society and people who have made their lives unnecessarily difficult. Leonie and Michael are occasionally sympathetic but mostly infuriate you with their selfish responses to suffering.

This wasn’t a book of profound quotes. But maybe seeing people as unique individuals formed by their environment, choices, and the ghosts of their past is itself profound. Maybe entering into the lives of the poor and outcast should be a prerequisite to judgment and policy. Maybe we should just spend a little time with the ghosts….

Robert E. Lee: military genius, Christian, slave-owner, college president, and leader of an army that fought its own government in order to preserve its right to legally enslave people. Many prooftext and anecdote their way into believing that he was a purely evil traitor who deserves nothing of significance other than a negative reference in history books or a southern hero who deserves massive monuments in public places of him in full military regalia.

Abraham Lincoln: beloved president, emancipator of the slaves, preserver of the union, orator, and undeniable racist. If Lincoln lived today, his views on the moral and political equality of the races would be more on par with Richard Spencer or David Duke than those on the front lines of the fight for racial equality.

Bill Clinton: popular governor, president, philanthropist, and first First Man by popular vote. He’s also a famous adulterer who while president carried on a notorious affair in the oval office with a young intern and then lied to cover it up. The uneven power dynamic in that relationship should concern even those who generally believe sex between consenting adults is not a matter of public concern.

Floyd Mayweather, Jr.: successful boxer and promoter who was one of the top twenty highest-paid athletes in 2016, and whose matches with Manny Pacquiao and Conor McGregor dominated the headlines. Mayweather is also a serial domestic abuser, pleading guilty to domestic battery on at least two occasions and accused of multiple other incidents of violence against women.

This list could go on and on: so many people giving with one hand and taking with the other—locked in history, blinded by vice, incapable of consistently finding the better angels of their natures.

“Nobody’s perfect,” we always say. “Please give me another chance.” “I’m sorry, I made a mistake.” Day in and day out, we give lip service to our common imperfections, hoping that others are more generous with our mistakes than we are prone to be with the mistakes of those who tailgate us or make us wait for forty-five minutes before calling us in to our appointment. But “mistake” is just a shallow word, right? It doesn’t contemplate evil or utter irredeemability of character or personhood. Where is the tipping point that renders someone’s “mistakes” so grotesque as to obliterate any good they may possess or contribute? Is there a tipping point? We seem to have an infinite capacity to tolerate “mistakes” in the form of greed and lying in our political leaders, domestic violence from our athletes, and virtually anything from our entertainers, as long as they are funny or talented (see Woody Allen or Roman Polanski).

At the same time, indignation feels good and sometimes feels right, so we apply it to those whose positive contributions don’t eclipse their vices in our minds. It gives us warm fuzzies to feel morally superior to other people, and we justify it by identifying real evils, such as racism, misogyny, sexual abuse, and violence. Indignation never feels so good as when we can paint with broad strokes: “I want nothing to do with him.” “If you don’t agree, I will defriend you on Facebook.” “God, I thank thee that I am not as other men.”

In moments of complete self-candor, however, the indignation makes us uncomfortable. Why? Aleksandr Solzhenitsyn famously wrote, “The line dividing good and evil cuts through the heart of every human being” and we sense that internal battlefront every day. Sometimes we feel so morally progressive and wise compared to history, and on other days we wonder what future generations will be saying about our writings, our stories, and our cultural honors, whatever they may be. We have all discriminated, hated, cheated, lied; we have all blindly pursued self-interest above all else. We may not own enslaved people, but we profit from slave labor across the world, keeping us in possession of the best phones, clothes, and gadgetry. We may not rape, but we consume entertainment and spout daily rhetoric that contributes to the ongoing sexual objectification of fellow human beings. We feel this darkness and dissatisfaction in our deepest souls and are not at all confident that history will remember us well.

None of this is meant to equivocate all vices or to in any way lessen the toxic, destructive violence of various forms of political and social oppression. Please, keep talking about why we have monuments to Confederates standing outside courthouses that are supposed to symbolize equal protection under the law. Please, keep talking about how women continue to be patronized, marginalized, and under-compensated in the workplace. Please, keep advocating for our criminal justice system to consistently work actual justice instead of mass criminalization of the poor, minorities, and mentally ill. But when you do so, do not think of yourself as “other than” those who have gone before you or those who are dialoging with you. We are in this together. If we destroy everything that is tainted by racism in this country, we will have to destroy ourselves in the process and will pass on rubble to the next generation. (That fact is as much an indictment of our shameful national history as it is a caution against a wholesale destruction approach to reform.)

So who should we honor? Why should we honor them? How should that honor be shown? I have nowhere near sufficient wisdom or perspective even to pretend to know the answers to these questions. But as we work through this together, let’s do it as generous and courageous people who acknowledge ourselves to be both part of the solution and the problem, not arrogant and untrained surgeons amputating everything that looks diseased.

Once upon a time, in a land not at all far away, there were two women engaged in public service. The first woman was an elected constitutional officer, charged with executing state laws, who found herself in a conflict of conscience when she was asked to execute a law that she believed to be constitutionally invalid. She further thought that executing the law would cause her to violate her religious beliefs. She had three choices: resign, violate her conscience, or refuse to execute the law. She chose the last option and suffered negative consequences at the hand of a judge, causing great division in the realm of public opinion.

Her case attracted the attention of a Senator in Washington, D.C., who decided to vocalize his support of her repeatedly and ardently. He said the judge who punished her was “fundamentally wrong,” and that forcing her to chose between resignation and violating her conscience was “inconsistent with the first Amendment.” He said she was being persecuted for her religious beliefs, and that she should not be forced to “choose between honoring…her faith or complying with a lawless court opinion.” In response to those who argued she should merely resign if executing a law caused her to violate her religious beliefs, this Senator said that was unacceptable, because it would mean all people who shared her conviction could not hold public office. “That is not America,” he said.

In the same land, there was a second woman, who was an appointed constitutional officer, charged with executing federal laws. She found herself in a conflict of conscience when she was asked to execute and defend a law she believed to be constitutionally invalid. She further thought executing the law would violate her convictions regarding religious liberty for all. She had three choices: resign, violate her conscience, or refuse to execute and defend the law. She chose the last option and suffered negative consequences at the hand of her supervisor, causing great division in the realm of public opinion.

Her case attracted the attention of that same Senator in Washington, D.C., who decided to vocalize his opposition to her repeatedly and ardently. He said she was “ignominious” and “put brazen partisan interests above fidelity to the law.” He said that refusing to “carry out her constitutional duty to enforce and defend the law” justified her punishment. He called her partisanship “lawless” and affirmed his support of her supervisor’s actions.

You may have guessed that the first woman is Kim Davis, Rowan County, Kentucky Clerk of Court, and the second Sally Yates, Acting Attorney General of the United States. The Senator was Ted Cruz from Texas. Now their situations were not identical: Davis was elected, Yates appointed. Davis was jailed; Yates fired. Davis claimed personal religious convictions, and Yates claimed an ethical duty to uphold the law and not violate religious liberties for others. Davis was reacting to the Supreme Court’s interpretation of the 14^th Amendment and Yates to an executive order. For the purposes of this essay, however, these are distinctions without a difference.

In a way I am being unfair to Davis, Yates, and especially Cruz. Examples of such political inconsistencies are rampant and bipartisan. It is, however, an interesting and readily available case study of how context can inform and affect principles.

Those who generally oppose Senator Cruz are quick to label this as hypocrisy. Before we retreat there, though, consider all those who had opposite inclinations—who praised Sally Yates for being a woman of principle but condemned Kim Davis for her bigotry. Are these examples simply not equivalent or do they have something valuable to teach us about pluralism in American society?

We all give lip service to the preeminence of the Rule of Law, but examples such as this illustrate how our most fundamental moral convictions color our views of a particular law and the strength with which it should be enforced. There is no simple solution to political inconsistency, but framing the issue correctly and adopting a few intellectual habits can help sooth the toxic political climate considerably.

First, engage in intensive self-examination. What were your reactions to Kim Davis and Sally Yates? What were your reactions to Ted Cruz’s reactions? Think of the last time you read a Supreme Court opinion and agreed that it upheld the rule of law but disagreed with the policy embedded in the law. This should not be a rare occurrence if we are doing it right. How often is our reaction to the presentation of an argument with which we disagree an accusation of hypocrisy rather than a substantive critique? If after a period of honest self-examination, you are not feeling a little sheepish about the regularity with which you call others political hypocrites, you are either to be applauded for your intellectual integrity or censured for your dishonesty.

Second, be generous in your identification of political hypocrisy. Maybe you have misidentified the fundamental moral allegiance of the alleged hypocrite and it is not hypocrisy you see but inconsistency or disagreement at the level of moral principle. Be at least as generous with others as you want them to be with you. Golden Rule your political rhetoric.

Finally, embrace civic pluralism. Whether you want to admit it, you have already done so in many arenas of your life. Failure to tithe is not illegal, pride is not illegal, men wearing pastel rompers is not illegal—as much as you may feel the moral underpinnings of such things with every fiber of your being, you have probably accepted the fact that pluralism necessitates the legality of things you consider to be immoral. Advocating for old-fashioned norms is not illegal, having a framed picture of Robert E. Lee on your wall is not illegal, truck nutz are not illegal. As much as you may feel the moral underpinnings of such things with every fiber of your being, your lip service and activism on behalf of civic pluralism necessitates you recognize and embrace the legality of things you consider to be immoral.

And, friends, this is a good thing. We are regrettably near-sighted people historically, geographically, and morally. Sometimes we have to be jarred out of our complacent dogmatism and introduced to other ways of thinking about things. You may encounter these new ideas in diverse friendships or you may discover them in ancient texts. They may not persuade you, but they will change you for the better.

We are currently testing the limits of pluralism in our society and collectively wondering whether our American institutions and commitments to both freedom and moral conviction can withstand the pressures of diversity. Flourishing life together, not homogenous thought, lifestyle, or conviction, is the goal, though. The desired conclusion to this story is not a Cruz, Yates, and Davis that finally all agreed with each other about everything, but rather a world in which they all lived together…happily ever after.