Monday, October 15, 2018

“Brett Kavanaugh would not have been treated fairly had he been a defendant in federal criminal court”

That’s the title of my latest op-ed in The Hill.  Please check it out.  Here’s the introduction:
Throughout the confirmation process of Justice Brett Kavanaugh, the President and the GOP have trumpeted how important it is for our society to value the presumption of innocence. Many criminal defense lawyers smiled as they heard conservatives champion this principle.

The sad truth, however, is that if Kavanaugh had been criminally charged in federal court, he would not have been treated so fairly.

Our criminal justice system is set up crush defendants, even innocent ones.
Here are two of the points:
Brett Kavanaugh would not be entitled to witness statements or to take depositions. The discovery process in federal criminal court is a joke. Remember those witnesses called before the grand jury? The defense is not entitled to see their statements until the witness testifies at trial. And if one of the grand jury witnesses does not testify at trial, then the defense is not entitled to review that statement. So too with other statements taken by law enforcement. They aren’t discoverable until after the direct examination of the witness at trial.

Forget about taking those witnesses’ depositions. Depositions do not exist in federal criminal trials, which may make you wonder how Kavanaugh would know what the witnesses were going to say. He wouldn’t, and he would find out at the same time the jury heard it.


On appeal, the court of appeals would be required to accept as true the accuser’s claims. If Kavanaugh proceeded to trial and challenged the sufficiency of the evidence, the court of appeals would be obliged to accept the accuser’s claims in the light most favorable to her.

As for the other issues — like disclosure of favorable information or admission of prior bad acts — the appellate court would only reverse if Kavanaugh could show prejudice: that the trial would have ended in a different result absent the mistake.

These standards make it almost impossible to win an appeal after a guilty verdict.


Anonymous said...

What does it matter, we won. And, you're not the President.

Anonymous said...

As a white male in federal court, BK would have been treated more fairly than most.

Anonymous said...

1:12 -
"WE"? Oh, you must be a member of the government of Russia, China or North Korea.
Those are the only victors as we watch the Orange Benedict Donald slowly destroy America.

Anonymous said...

2:18 - yes, we won. Go cry to Schumer and Pelosi. We're playing chess and they're playing checkers. Look at the federal bench stocked with young conservative warriors. Look at the dismantling of the regulatory state. Look at the gutting of the ACA. Trade is fair. Millitary stronger than ever. Finally, we're respected over the world. Yes, you can say we fucking won.

Anonymous said...

@1:12pm, you're not an American. You're a republican. Have you noticed? Do you understand the difference?

Lots of democrats have the same problem. But I'm talking to you.

Nobody won the Kavanaugh mess. Its a black eye on OUR democracy.

Anonymous said...

5:02 - Not American? I bleed red, white and blue where you probably only bleed commie red. But I do agree with you the BK affair was a black eye. Democrats practicing the the politics of personal destruction. Where was the due process, the presumption of innocence? Sad, very sad.The Democrat mob trying destroy a brilliant man's life based on uncorroborated allegations. But we won. We got Bid Brain Brett on the Court for the next 40 years (bye bye Roe). And we got our base energized. It's a beautiful thing.

Anonymous said...

Like Trump, you are a clown. Have whomever is in charge of you take your crayon away! So Sad.

Anonymous said...

This comments thread is very discouraging.

Anonymous said...

What's discouraging is that people like 5:17/1:12, and both the current President and Vice President*, as well as lots of Dems see our Democracy as a team sport and their team is a political party. That mentality is more dangerous to our democracy than any terrorist group or foreign army.

*The Vice President campaigned on the slogan that he is "a christian, a conservative, and a republican - in that order." Painfully absent from his big 3 was an American.

Anonymous said...

9:45 - I disagree. I think my party has better ideas that will lead to greater prosperity for all Americans. Why wouldn't I want to win?

Anonymous said...

Because the quest to win leads people to cheat. If you think your ideas are better, put them out there and let the market place of ideas sort it out.

The Kavanaugh fiasco is just one good example. Kavanaugh, it turns out, pretty clearly lacks the judicial temperament to be on the Supreme Court (if you watched his testimony and don't see that, it is very likely that your desire to win is clouding your judgment). The desire of many partisans to win lead to his confirmation as a Justice. I have no doubt that there are other people who hold similar judicial philosophies to that held by Kavanaugh who could have been nominated in his place. But winning took priority over good governance.

You could make the same argument for the Bill Clinton impeachment. Set aside how we got there to begin with (which was nasty in its own way). But the man lied under oath. He perjured himself. And not even for the arguably good cause of protecting national security, but just to cover his own ass at home. I like Bill Clinton. If Bill Clinton could and did run again, I'd be tempted to vote for him. He should have been convicted by the Senate. But he wasn't because Democrats wanted to win. They wanted to win so bad that they created the precedent that lying under oath is something that a president is allowed to do. Shame.

Anonymous said...

I'm betting 3:52 and 5:17 are former DEA Agent/SAUSA Lenny Athas who now thinks he can be a criminal defense attorney.