Kavanaugh, Due Process and The Yearning for Justice

The 11th hour accusations against possible Supreme court justice Brett Kavenaugh and the latest round of political outrage remind me of the pessimism I have these days about the body politic, and concerns of justice. Reading about the Innocence Project, for example leads me to question the problems with public defenders, police forcing confessions, etc. The innocence project should influence us to concern in the #metoo movement era; there is the danger of injustice by authorities not taking seriously accusations of sexual assault (a term that is far broader in law enforcement and legal discussions than it’s interpretation among the culture at large). But a part of a concern for justice is the concern for due process rights; the innocence project has demonstrated a large number of men were falsely convicted of rape often with a toxic trio of factors: coached, poisoned and/or inaccurate victim testimony, poor or inadequate legal counsel, and scientific, expert testimony.

The Kavenaugh case is interesting, both from the standpoint of legal epistemology (the study of knowledge and belief), due process rights and something of our own longings. Epistemologically, our system purposefully places the burden of proof (with the exception of “affirmative defenses”) on the prosecution and thus on the accuser. This is intentional, and proper, and comes from the Old Testament, where the text tells us one was not to be deprived of life or liberty except at the testimony of two or three witnesses (Deut 17:6; Deut 19:15); Paul raises this to a general principle for religious epistemology (2 Cor 13:1).

Legal Epistemology

In the Kavenaugh case, we are met by the vagaries of testimony and law. Kavanaugh, according to his accuser, assaulted her with a friend at a party 35 years ago. She cannot remember the time or the place where it happened, though apparently it was a party where a lot of drinking happened. Two people at the alleged party (Mark Judge and another person, currently unidentified) have stated they do not remember any such incident, of course, this assumes that everyone is remembering the same party. According to Ms. Ford, he was drunk at the time, and therefore CNN has noted that this means he might be guilty and might not remember the incident. This is an interesting point, and many seem to think that when one is inebriated, they are excused from their crimes. But, presumably one knows that drinking can lead to drunkenness; one has, by drinking to excess chosen to put oneself in a situation in which one’s self control has been damaged. But, a second problem, not quite as well addressed, is that Ms. Ford faces the same issues. While we do not know if she was drinking, it is likely given the type of party described that she was, and her memory of how much she imbibed should be considered suspect—those under the influence all to often understate at the time and afterwards how influenced by alcohol they were.  If she was drinking that night, then her memories of the occurrence are equally suspect as are Kavanaugh’s; she may misremember what happened, she also may misremember who was responsible, the trauma of sexual assault seems to, according to the innocence project, damage memory of the victimizer under a number of circumstances, the innocence project has used DNA time and again to prove that real victims of rape positively, insistently, and vehemently, identified the wrong person. It is reasonable to assume alcohol makes this problem worse.

This of course is only one of a number of epistemological issues, the victim claims not to remember the time or place, this makes any real investigation involving real witnesses—meaning not those who might have been told about the matter in 2012, whose value is tertiary—but those who might have seen or heard something when the incident happened. There is also not a pattern of behavior here, as is true of many accused in recent days. I do not say this because this kind of behavior would only be unacceptable if it happens more than once, but when you have a pattern of behavior, then you have the evidence from a number of cases rather than just one.


Due Process

If I am unclear on anything above, one thing is clear, the burden of proof within our system of justice and in our society in general is that when a charge like this is made,  the burden of proof is on the prosecution, not the defense. This does not mean I think Ford should be silenced or the matter should be ignored, it is only a statement of epistemic responsibility. We tend to forget that a “not guilty” verdict does not necessarily mean “innocent” it may simply mean that the charge is “not proved.” In this case, because of the problems noted above, it seems impossible to prove, or even adequately investigate, the case Ms. Ford is making.

Due process concerns are important. We rightfully decry it when someone is accused of a crime if he or she does not receive a fair trial; but this often does not occur in the court of public opinion. CNN and Fox published comments left on Kavanaugh’s wife’s voicemail, and many seem to have already convicted Kavanaugh, and I am reminded of the wisdom in waiting until one hears a matter to opine (Proverbs 18:13). Similarly, though, beyond the question of the court of public opinion, and what it reveals about the American Psyche, is the issue of timing, the current push is to put off the confirmation vote until after the FBI investigates, but this 11th hour push seems problematic. While this has been brought to the attention of Kavanaugh and the world at large very recently, Senator Feinstein and others appear to have been sitting on this information since at least July, and perhaps the Senate ethics committee should be investigating Senator Feinstein’s actions in this regard. This does not speak to the question of the truth or falsity of the accusations, but it similarly points to the way matters of justice are treated in the halls of power. Interestingly, early reports indicated Feinstein acknowledged the epistemological problems and difficulty in corroborating Ford’s testimony note above. Thus falls the nation when matters of justice become merely ways of furthering an agenda.


But there is also the time when this happened, Kavanaugh was a minor involved in an alleged crime 35 years ago. It is rather interesting to have some Republicans who are caricatured as arguing that all violent criminals at age 17 should be tried as adults questioning the admissibility of something happening when Kavanaugh was a minor. Similarly, leftist commentators who claim we should never try anyone who is under 18 as an adult seem to find ways to pass over that discussion, for various tortured reasons. Personally, I’ve always been a moderate on this issue, there is a difference between a 17 year old who has no criminal record, and is caught shoplifting and the 17 year old charged with a gang related murder, who has a long record of assaults and distribution charges. I list extremes in part, because those who believe we should try juveniles as adults tend to focus on extreme cases, and they have a point as the justices system needs to function to protect society, but it should also be acknowledged that there is a wide disparity among youthful offenders. Some seem to think prosecutors should make the decision about charging a minor as an adult, but I am inclined to think this decision should be made by family court judges, with the defendant adequately represented by council. In otherwords, whether something is handled as an infraction by a minor in the family court system itself seems to be a matter of due process. Of course, in Kavenaugh’s case, such due process to move the question from a juvenile proceeding to adult courts has never been exercised, but it does seem to be an important one for our conceptions as a whole, and in discussions of justice, there are very real questions about youthful offenders and the sealing of juvenile records. Judge Greg Mathis, of the television show, was at one time a member of Detroit’s Errol Flynns (a violent street gang involved in heroin trafficking), but his path to becoming a valuable citizen was hindered by his criminal record.

We have here, then an injustice. To convict Kavanaugh, to treat him as guilty in this case is unjust, because it cannot be proven. But this leaves us with one of two ramifications, either Kavanaugh’s reputation has been seriously besmirched while he is innocent, as this will follow him for the rest of his life, or he is guilty and cannot be punished under any just system of law. Either is outcome is ultimately unjust.

The Real Problem

I have no conclusions, or even at this time an opinion, on the facts of the accusation. As noted, I’ve become pessimistic as such matters seem to be interpreted solely in the self-interest of political partisans. My point is deeper, and part of what it means to be human.

The Kavanaugh question, #metoo and a number of other issues point towards a deep human longing for justice, social and otherwise. Yet, the points I bring up above are serious problems in actually accomplishing such justice in a real (rather than ideal) human society; we have a system that makes it easier for guilty persons to be acquitted, and this is unjust, but we consider it less unjust than to punish the innocent. Yet, correspondingly, we have evidence from the innocence project that unfortunately a jury of peers often convicts people who are innocent of the crimes with which they are charged, this is unjust. Justice is limited by our knowledge of the actual guilt or innocence of the accused, and in cases such as this, knowing the guilt or innocence is impossible. Justice seems an elusive dream, a utopian fantasy, and the longing for justice in this life is a thirst that cannot be slaked.


If that longing cannot be met in society, it is something with which we are consistently strive to meet, and peculiarly, to be able to adequately define the concept (no easy task). Justice provides no survival value in and of itself; the Darwinian value that justice might present for preserving a society is limited to degrees where “close enough” is sufficient, but we do not seem to be able to say “close enough” when we meet with real cases and accusations. We get worked up about injustices from centuries ago, in some cases, millennia, as is apparent in material written about slavery during Roman times. In other cases, to avoid the questions of the origins of justice, there is a tendency to create a dichotomy between facts and values, something that cannot hold up in the long run. Attempts at justice pushed by critical theorists are logically absurd but deeply and fiercely held; Critical theory draws on the basis of Marxist and Nietschian genealogical approaches (starting with readings in Foucault), but Nietsche’s logic means the concepts of justice and morality must be dispensed with completely. Justice and morality are, to Nietsche, means for the weak to control the powerful, the small to control the great. History shows the idealism of a youthful nation in striving to build a just society fall into injustice quickly, and what is new is usually something that has been tried and found wanting in the past. In short, the crusade for justice cannot be met by human beings, and yet we still cry out for the absence of justice.

But Christianity has both an answer for where that longing comes from, and a time when that thirst will be slaked. Human justice is an inadequate mirror of a divine rule and judgment, which punishes sin with impartiality, from One that reads the thoughts and intents of our sinful hearts, Who is not limited by our epistemic limitations, and the passage of time does not affect His ability to know a matter rightly. We yearn for justice because God has planted it into our hearts, it reflects his divine economy. Yet, our yearning for justice always seems to fit what happens to others, in a jail, so many exhibit that human tendency to talk about how they are really innocent (or at the least, their punishment does not fit their crimes), and the guilt of their compatriots. But with God’s economy, we cannot complain about the justice of the Judge, it is our own personal justice that is at issue. We may be innocent of a specific crime, but we are not innocent. A thief may not be a murderer, but he is no victim of the system. There is, therefore, a second element of the Christian faith, equally as important as justice, founded in the just dying for the unjust, as our sins are carried on the back of the Perfect One.