Groucho & Javert

How is it possible that Judge Robert Bork's $1 million pratfall at the Yale Club was not captured on video and immediately posted to YouTube?

To paraphrase Groucho Marx: An audience will laugh when an actor pretending to be a fatuous, hypocritical judge pretends to fall off of a stage, but to a pro it's only funny if it's really a fatuous hypocrite and he really falls off the stage.

To be clear, Bork is not just suing the Yale Club to get them to pay his medical bills -- his $1 million lawsuit seeks punitive damages.

Should you fall off of a stage, Robert Bork thinks you should not be allowed to sue for $1 million. He thinks you should only be allowed to sue for up to $250,000. His wounded leg and wounded dignity are, he thinks, worth four times what your leg and your dignity would be worth. This is what he means by "tort reform." And this is what he thinks of you.

* * * * * * * * * *

Montana Attorney General Mike McGrath has a crippling case of Javert Syndrome. Maurice Possley of The Chicago Tribune tells the story in "Exonerated by DNA, guilty in official's eyes":

In the fall of 2002, DNA tests exonerated Jimmy Ray Bromgard in the 1987 rape of an 8-year-old girl in Billings, Mont. His case was dismissed and he was freed from prison.

"Mr. Bromgard has spent 15 years in prison for a crime that the state is now convinced beyond a reasonable doubt he did not commit," Yellowstone County Atty. Dennis Paxinos declared. ... "He simply could not have committed this crime."

Nearly five years later, Montana Atty. Gen. Mike McGrath -- a recently announced candidate for chief justice of the state's Supreme Court -- has stated under oath that he still believes Bromgard is guilty. ...

That a prosecutor would believe a defendant guilty despite DNA evidence is not unusual. What makes McGrath's position unusual is his bid to become chief justice of the Montana Supreme Court, where he would sit in judgment over many criminal cases.

As Possley says, that "a prosecutor would believe a defendant guilty despite ... evidence" is not unusual, yet it never ceases to bewilder me. Putting the wrong person in jail means the real criminal is allowed to go free and unpursued. The ability of prosecutors like McGrath to accept this, and to imagine that letting these criminals go free makes them "tough on crime," is simply insane.

And I don't think crazy people belong on the Montana Supreme Court.

Comments

[85% Duane]

.. OR the U.S. Supreme Court.

[forestwalker]

Prosecutors much too often think that public confidence in the system is more important than its actual efficacy in administering justice. That's their story at least. Personally, I think it's just ego and perhaps a bit of sadism. It's also why America's Mayor Prosecutor must be resisted at all costs in his bid for the presidency.

[Joshua]

Or any of the numerous lower courts, for that matter.

[Jeff]

As soon as one person was exonerated on DNA evidence, we should have abolished the death penalty. We don't know (and probably never will know) whether we've executed an innocent person, but the odds are for it. Keeping the death penalty when we know that innocents have been convicted is in the same line of thinking as "24"-style torture.

[pharoute]

Bork suing the Yale Club? I'm sure they'll be able to come up with a couple of fancy pants lawyers to defend themselves. Also I'd imagine the hospital drew some blood; I wonder what the blood alcohol results were.
*******
I've always viewed the "we got the right guy so NYAH!!!" attitude as the end result of

[pharoute]

http://slacktivist.typepad.com/slacktivist/2007/03/gaming_the_stat.html
argh! lousy html....

[Mabus]

DNA evidence, like any other evidence, can be faked, planted, or even deliberately misread. I don't contend that it has been--yet--but it inevitably will be sooner or later.

Any system without the death penalty is unjust. Death is the only punishment suitable for certain crimes such as murder or rape.

[Josh]

Lord, I wish I remembered where I had seen this --but there've been studies suggesting widespread psychological resistance to a belief in exonerating evidence on the part of law-enforcement officials and victims' families in our society. Maybe an old post at "Respectful of Otters." It's very hard to change people's minds.

Also, I think Mabus' comment could open up an interesting discussion about the relationship between justice and punishment.

[MichaelR]

Wait, what? You just did a wordier version of saying "it's entirely possible to grab the wrong guy, but what the hell, fry the convicted anyway."

The entire point of this particular objection to the death penalty is that if you grab the wrong person, it's kind of hard to fix it if you don't find that out until later.

[NonyNony]

Death is the only punishment suitable for certain crimes such as murder or rape.

I disagree. The death penalty lets murderers and rapists off too easy - they're dead and they never have to think about their crime again. Lifetime imprisonment with no parole would be more just.

[Brian J.]

Frankly, why not put him on the Montana Supreme Court? Or even better, Wyoming or Utah? This is the technique of quarantine- put all your right-wing loonies in as confined a space, damaging as few people, as possible. Meanwhile, sane people in the sane states can deal with them as little as possible.

[straight]

"Tough on crime" is not about justice, it's about being "tough." If somebody hits me, somebody gonna get hurt. If somebody blows up a bomb in NYC, then some country is gonna get bombed. Hitting the right somebody is a distant third to making sure somebody gets hit.

Because, really, killing the murderer isn't going to bring my lost loved one back any more than killing an innocent person. But just killing somebody might make me feel better and look tougher.

[mcc]

I disagree. The death penalty lets murderers and rapists off too easy - they're dead and they never have to think about their crime again.

I'm not really sure what I'd expect such a study to find, but I'm suddenly curious. Has anyone ever done a study or poll to see if there is any measurable correlation between opinions on the death penalty and opinions on the existence and nature of an afterlife?

[Lurker]

mcc: If you believe in Christian afterlife, you are giving the felon very good chances of getting into heaven. After all, the condemned has plenty of time to seek redemption from God, with professional spirtual help. With such preparation, any one, regardless of previous crimes, may safely step into an execution chamber in the sure belief that Christ has redeemed even the worst sinner and that Father will welcome his prodigal son back.

In Sweden, this became a problem in the 17th century. The only religiously acceptable way of committing suicide was to commit a capital crime and be condemned. This way, you would get a lot of time to seek forgiveness of God. (Confessing having sex with animals was one of the preferred ways to get the death penalty.)

[Ian]

McGrath is actually worse than Javert. At least Valjean really did steal a loaf of bread.

[Jesurgislac]

Mabus: Death is the only punishment suitable for certain crimes such as murder or rape.

1 in 12 men commit rape at some time in their life: do you really want to have the male population of the US duodecimated?

Though it wouldn't happen, anyway. What would happen is that some rapists would be discovered to be worse than other rapists - in the US I think this would split fairly clearly along color lines - and some rapists would be killed while others wouldn't. Also, the death penalty for rape would ensure it was even more difficult than it is now to convict clean upstanding wealthy white men of rape, especially if they picked their victims carefully. ("He raped a black stripper, and for that you want to kill him? Nah. Don't care how clear the evidence is, find him not guilty.")

The death penalty is emblematic of a penal system that doesn't care about reform but only about punishment. Me, if I'm paying (and penal systems are expensive!) I want the penal system to do something useful - to work on reform, not punishment.

And if someone's done something really atrocious, then let life imprisonment mean life - lock them up forever, no parole.

[Fraser]

Mabus, we know DNA evidence has been falsified: There was that lab in Houston that provided incriminating and completely false evidence to the cops for several years, to name one example.

This is not an argument for the death penalty as you seem to think.

Jesu, your argument on death-for-rape is one I've been using for years: It's hard enough to get a conviction now, it'll be ten times as hard (at a conservative estimate) if the jury knew they were sending the guy to death row. Though I'll admit I'm biased: Vile as rape is, I don't think the death penalty is acceptable for anything but murder (and I'm ambivalent about that).

[nieciedo]

And I don't think crazy people belong on the Montana Supreme Court.

Have you been to Montana?

[nieciedo]

in 12 men commit rape at some time in their life

Yow. That figure seems very frighteningly high. Do you have a link to statistics on that? Also, what type of rape are we dealing with here? I assume it can't be limited to the kind of rape where a man ambushes a woman on the street or breaks into her house and overpowers her and forces himself on her or when a man will deliberately drug a woman so as to have his way with her. Does this figure include instances where men have sex with women when the woman is either incapable of giving consert or has her consent impaired due to drugs or alcohol or psychological pressure?

I'm paranoid and distrustful of other people enough as it is. I'm not to thrilled now if I have to assume that one of every 11 other men around me is or will be a rapist!

[Jesurgislac]

Fraser, I have a whole bunch of reasons why the death penalty is unacceptable to me. Errors in the justice system: no system is perfect, and the only way to avoid killing people who are not guilty, no one ought to be killed. Making the justice system about punishment and not about reform. Encouraging brutality towards prisoners. But also: the death penalty is never uniformly applied. The claim that it's natural to pay for a life taken with a life taken somehow never applies to some murders or some murderers. (Notably, the death penalty only very rarely applies in the US when a white person kills a black person, but is very likely to be applied if a black person kills a white person.)

But at root: the death penalty is a way of saying that some people's lives are worthless. I believe (though I cannot cite any data) that the high murder rate in death penalty states isn't just coincidence: people learn in all sorts of ways that it's okay to kill, and the death penalty is one of those ways. I don't believe that it's ever right to decide that some people's lives are worthless: so I'm pro-choice, and anti-death penalty.

I think the element of punishment is clear in the way the death penalty is applied, too. It would be easy enough to set up a method of execution that would be reliable and completely painless: but no such method is in use in the US.

[Jesurgislac]

niecedo: Yow. That figure seems very frighteningly high. Do you have a link to statistics on that?

Good catch. The figures from Mary Koss's study, which I was half-remembering, were 4.5% of men (out of 1000s of college students questioned) had already committed rape - 1 in 25.

My guess is that if a wider age range were questioned that proportion could well increase to 1 in 12: but I don't have a cite for that.

I assume it can't be limited to the kind of rape where a man ambushes a woman on the street or breaks into her house and overpowers her and forces himself on her or when a man will deliberately drug a woman so as to have his way with her.

Why would it be limited to just the kind of rape that juries will convict on? The most common kind of rape, all studies agree, is when a man is already in a relationship with a woman, and she says no, and he has sex with her anyway. That makes him a rapist. (He probably doesn't think of this as rape, though: many men don't.)

[Rosina]

But at root: the death penalty is a way of saying that some people's lives are worthless.

This, in a way, is the basis for my position in the Prison Service, that a programme of rehabilitation was always worthwhile, even if it couldn't be proved to work on an individual basis. If you don't try to rehabilitate someone, you are saying that that person has been written off - even when they're released, you don't want to help them 'make something' of their lives. And I am against the death penalty (for all the reasons given, from the risk of error to the risk of bias to the fact of its being about punishment not reform), but I am also against imprisonment without hope of parole or amelioration of conditions. The desire for such punishment seems to be a public baying for blood, usually orchestrated by the 'medja', and politicians accept the public view not because it is just but because it is popular.

[Jesurgislac]

Niecedo, back when I was on livejournal, someone posted a defense of rape by pester power - a man wearing a woman down by nagging until she finally gives in. There was a discussion of this kind of rape on my journal.

[Drak Pope]

Is that rape or sexual harassment? It seems more like the latter since the man does gain consent but through harassment rather than by the woman's full choice.

[J]

HYPOTHESIS: Bork deliberately fell off the stage at Yale as a way (a rather conniving, nasty way, but a way) of trying to advance the cause of tort reform. "Ha!" he thought to himself, smoking his pipe in his study, with a shelf of leather-bound backfiles of First Things and National Review behind him, "THIS will get those namby-pampy judicial activists to come 'round to my way of thinking on punitive damage awards!"

In the same vein, if Bork were a woman (a dog-ugly, bearded woman, but a woman), he might decide to go out and get him/herself raped, then defiantly carry the resultant baby to term as a way of protesting against abortion.

[J]

"...rape by pester power - a man wearing a woman down by nagging until she finally gives in."

Isn't there a better term for that? Maybe "pity sex"? The kind of lay a woman might offer a guy who reveals himself to be such a thoroughly pathetic human being that she feels 51% sorry for him and 49% wants to get rid of him as efficiently as possible.

[J]

Maybe "pity sex"? The kind of lay a woman might offer a guy who reveals himself to be such a thoroughly pathetic human being that she feels 51% sorry for him and 49% wants to get rid of him as efficiently as possible.

Hee, hee, I just thought of this: "The sort of sex Hattie SHOULD have offered Buck--just once--then been done with him forever whether he said yes or no."

[Kate]

I would really like to see the defence in the Bork case do their best to use his own rulings/written arguments against him whenever possible. Toss it in as the second or third cite on every point if you can...

That's irony for ya, and hey, I'd go to town if I could!

[Jesurgislac]

J: Isn't there a better term for that? Maybe "pity sex"?

Women who have experienced this kind of bullying say that they don't let him do it because they feel pity for him: they feel anger, weariness, self-disgust, and weariness. Often - the women who've talked about it have been talking about men who were now their exes - they didn't themselves identify what he did to them as rape until well after she'd left him. But in each instance, he knew she didn't want to have sex with him, but he wanted to have sex with her: her wishes were irrelevant. That makes what he did to her rape.

The kind of lay a woman might offer a guy who reveals himself to be such a thoroughly pathetic human being that she feels 51% sorry for him and 49% wants to get rid of him as efficiently as possible.

I'd guess you're male, J - am I right?

[85% Duane]

Probably straight too.

[Bugmaster]

Straight and male ? Next thing I know, you'll tell me that he's white, as well. Man, they allow practically anyone on the Internets nowadays, don't they ?

[J]

I'd guess you're male, J - am I right?

That engine-revving noise you all hear is Jesurgislac firing up her Political Correctness Motorcycle. Beware: I believe she intends to burn rubber.

[85% Duane]

Straight and male ? Next thing I know, you'll tell me that he's white, as well.

Prolly never leaves his living room either..

[Jesurgislac]

J: That engine-revving noise you all hear is Jesurgislac firing up her Political Correctness Motorcycle. Beware: I believe she intends to burn rubber.

I'm sorry, I've run this reply through BabelFish several times, and I can't figure out if it's yes or no.

Who's got the notebook? Put J down as a "Maybe".

85% Duane: Probably straight too.

Not necessarily - a friend tells me that some gay men try the bullying/nagging technique on their partners, too. And it wouldn't surprise me if they too describe nagging their partner to have sex with them against their will as a "pity fuck", because they don't want to think about how unlikely it is that a victim will pity the rapist.

[Raka]

he knew she didn't want to have sex with him, but he wanted to have sex with her: her wishes were irrelevant. That makes what he did to her rape.

That's the second most insultingly reductionist definition of rape I've ever seen, and the first was intended as humor. Well done!

So if a child in a store pesters his mother until she buys him candy, that's robbery. And if my wife pesters me until I haul those old cabinets out of the garage and to the dump, that's slavery. If a friend says they'll meet me at 8:00 and doesn't show up until a quarter after, that's unlawful detention. Good to know.

No, I'm not defending the practice. "Pester sex" is already abhorrent on its own. It may even entail illegal behavior, such as harassment. But stretching the definition of rape to include unreasonable persistence doesn't make the behavior more significant-- it just insults victims of actual rape.

[Jesurgislac]

Drak: Is that rape or sexual harassment? It seems more like the latter since the man does gain consent but through harassment rather than by the woman's full choice.

I think we're just working on different definitions of "consent" here. Do you really feel that if you were stuck in the same room as a man, and he wouldn't let you sleep - kept waking you up, kept handling your body, kept talking to you - until you finally rolled over and let him screw you, that you'd feel his unwelcome presence in your body wasn't really rape, just "sexual harassment", because, after all, he hadn't actually hit you: he'd just harassed you into giving him what he wanted and you didn't? Is that your idea of consent?

[Jesurgislac]

And "giving" is probably the wrong word, too: "letting him take" is more accurate.

[Toby]

From here:

"One in 12 college men responding to the same survey admitted committing acts that met the legal definition of rape or attempted rape, but only 1 percent of those men saw their behavior as criminal."

Looks like Jesurgislac was right the first time.

[Toby]

Oh, wait, that's the same study. OK, someone's got the numbers wrong.

Also, Jesurgislac, not letting someone sleep is a much clearer case of coercion than "nagging", which is how you put it originally.

[Rosina]

"One in 12 college men responding to the same survey admitted committing acts that met the legal definition of rape or attempted rape, but only 1 percent of those men saw their behavior as criminal."

The same article quoted by Toby also says According to a 1989 article featured in Good Housekeeping , "Freshmen girls, eager to appear sophisticated, are particularly vulnerable targets for date rape.

If freshman girls are particularly vulnerable, that would imply that freshman boys are more likely to have the opportunity to commit rape/attempted rape, and the 1 in 12 figure may not be typical of the general population. On one hand, they have more opportunity, on the other one would hope that they were more intelligent and ... but that wouldn't actually reduce the likelihood of rape.

So do we have any similar statistics for the male population at large (of the US, or of anywhere else)?

[Bugmaster]

I would like to see the general statistics, also. When I tried searching for it, I got a lot of inconsistent results, ranging from 0.5% to 30%, IIRC.

[bulbul]

Who's got the notebook? Put J down as a "Maybe".
Maybe what?

[85% Duane]

Not necessarily - a friend tells me that some gay men try the bullying/nagging technique on their partners, too. And it wouldn't surprise me if they too describe nagging their partner to have sex with them against their will as a "pity fuck", because they don't want to think about how unlikely it is that a victim will pity the rapist.

Well Hell, if yer gonna throw in "Pester Power", my wife is a rapist.

[Bugmaster]

Silly Duane, only men can be rapists. Duh. Unless you're married to a man ?

[85% Duane]

Silly Duane, only men can be rapists. Duh. Unless you're married to a man ?

No, Bugmaster, that's not correct. But, I will allow that the subtext to most of Jesurgislac's positions is men=bad, women=good.

[85% Duane]

most = many

[85% Duane]

Nevermind, I can't even back that up. But on this issue, I can come to no other conclusion. Why else would you exaggerate the problem to the level of a spoof and then when you admit incorrect statistics, speculate that the problem is worse ANYWAY? You certainly aren't HELPING win over minds and influence allies.

The only consistent has been the demonization of men, many who would consider themselves allies in the cause for enlightment in regards to The Battle Of The Sexes.

[85% Duane]

But you know, that's women for ya. Statistics continually indicate they don't have the reasoning power of men.

[Bugmaster]

It's true. Their brains overheat, the poor things...

[85% Duane]

Well, even if it isn't true, it's probably WORSE.