A recent article in The Marshall Project scratches the surface of a dialogue whose time has come.
“While potential jurors take an oath to answer questions honestly during voir dire, and there are undoubtedly some with hard biases, I suspect many socially conscious citizens overstate their positions,” writes Todd Oppenheim of the Baltimore Public Defender’s Office.
“Those individuals should think carefully about whether their closely-held beliefs actually result in bias before answering questions. They should take that question more seriously because judges will almost always err on the side of caution and eliminate those on the fence—or simply posturing—from jury pools, even if they might make for good jurors. Defendants lose out as a result.”
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A great article, but it does not go nearly far enough. #blacklivesmatter and the like are not the only movements that can become problematic in the jury box when a juror feels compelled to answer with depth and honesty. People who may call themselves various forms of “progressive” increasingly share a healthy skepticism of the government, of the police. In particular, they see profound injustice in the overall treatment of men of color by our justice system from the time of arrest all the way through the the ultimate test of justice; a jury trial. What the article fails to address is what happens when this movement runs directly into another movement, such as the #metoo movement.
Increasingly, we are a nation in which progressive advocacy groups see vindication only in guilty verdicts, and decry any other outcome as a “slap in the face to all women,” or other such hyperbole. In order to be considered “enlightened,” one is now socially compelled to say “I believe her” from the moment allegations are spoken by an accuser. However, many so-called “progressive” individuals who promote this sentiment likely also find favor with movements raising awareness about the disparate treatment of African Americans and other minorities at the hands of police and the larger machine of the justice system as well. Yet, in cases of sexual assault allegations, the government’s position is essentially “you should believe her.” So what happens when a man of color is accused of sexual assault?
We have countless stories in which men of color have been exonerated of crimes by DNA or other evidence, and most of those cases are criminal sexual conduct cases. Many of these men have sat years or decades in prison for a crime they did not commit. In every one of those cases, the jury said “I believe her.” We know also that when the accused is black, and the alleged victim is not, there is an even greater risk of wrongful conviction. The fact remains our justice system is still making the exact same errors today that put these men in prison decades ago. In most criminal sexual conduct cases, there is no biological evidence at all, and we are left with the same rules of evidence, and a question of credibility, that decide a man’s fate. Just as racism and sexism are not problems that went away in the 1990s, wrongful convictions are still commonplace today. Indeed, the only pertinent changes that have been made to the rules of evidence are “rape shield” laws and various exceptions to hearsay rules, specific to sexual assault cases, which have essentially been drafted, promoted, and ultimately forced to pass by advocacy groups. These rules and laws, and the subsequent jurisprudence arising out of their application to case after case, make it even more difficult for a defendant to fully confront an accuser in court, or even bring up prior false accusations against others by an accuser. Compounding the problem is that the array of conduct which constitutes felony sex crimes has greatly expanded, such that biological evidence is sometimes not even applicable. It may indeed be right and just that acts which were not prosecuted decades ago are now being handled for the heinous crimes they indeed are, but invariably, that has increased the number of prosecutions for criminal sexual conduct.
Such social movements absolutely saturate our cable, our radio, our papers, and our social media feeds. Our justice system is where these movements are directly colliding, right now, in courtrooms all over the nation where the consequence is 20-life. An honest conversation is missing in our national dialogue on sexual assault and criminal justice. Facebook and Twitter are not and should not be the arbiters of justice. They are not paid by our tax dollars and tasked with deciding the lifelong fate of one of our own who is accused of violating laws passed in our name. The hard truth is that “I believe her”, in the manner in which it is currently being promoted, stands in direct conflict with “innocent until proven guilty beyond a reasonable doubt”, a standard of justice to which every juror must ultimately swear adherence to, and a mantra rooted deeply in fundamental reason and logic. Justice demands that this remain the standard, and we would all serve justice well by promoting it outside the courtroom as well.