Saturday, December 17, 2011


A recent, interesting one-page piece  in ‘The New Republic’* comes out in favor of The Innocence Project, in the matter of DNA exonerating convicts (often only after a decade or more in prison) who had been convicted by eyewitness testimony.

Of the first 250 convicts freed by subsequent DNA testing, 190 had been convicted by eyewitness testimony or identification. In 43pct of the first 250 cases, an innocent person had been convicted and was serving time when the real perpetrator was finally identified.

The SO community (we should recall that we are really the Sex Offense, Sexual Assault, and Sexual Violence community since the Maniacs are busily trying to re-badge themselves as they desperately fiddle with ‘definitions’ and ‘frames’ in order to keep their ball and train in business; SO/SA/SV) is already familiar with the unhappy history of ‘recovered memory’ and also with the profound problems raised by human memory.

In a nutshell: human memory is a dynamic, subjective, selective process at the best of times – and is in no way a ‘mental snapshot’ of ‘exactly what happened’.

The Editorial acknowledges that while eyewitness testimony (based perhaps also on an eyewitness identification) is “a necessary and inescapable part of the justice system”, yet “the problems it creates run deep".

A major problem is that it’s difficult for defense counsel to uncover the errors in such memory on the witness stand since eyewitnesses so often so intensely believe what they are sure they saw (and who they saw).

As you may well imagine, this hellish problem cannot but be exacerbated by victimist insistence that a) the allegant’s ‘story’ must be believed or else h/she will be ‘re-victimized’ by an insensitive legal process and that b) the traumatization-victimization experience (however defined) actually does take a mental snapshot that resides in the memory like a file resides in a computer hard-drive, to be recalled pristine and fresh at whatever time in the near or distant future the allegant suddenly ‘remembers’ it.

And such eyewitness confidence tends to impress jurors far more than it should, since most jurors themselves are not familiar with the complexities (and evidentiary-level unreliability) of human memory.

As always, in the genuine therapeutic forum, a ‘memory’ and the patient’s ‘presenting story’ are always grist for the competent therapeutic mill, but are never to be presumed to be entirely accurate (and that is presuming that the patient is not simply ‘confabulating’ (mixing imagination and recall) or making the thing up for ulterior purposes).

The Editorial mentions  a book out now, “Convicting the Innocent”, by Professor Brandon Garrett of U/Virginia Law School that discusses this at length.**

Garret reports that in 78pct of those cases for which he could obtain trial documents “the police had contaminated eyewitness identification with suggestive procedures – such as conducting a lineup where the real suspect obviously stood out from the others or by somehow indicating, intentionally or otherwise, which person should be selected”.

And he is not discussing SO cases here specifically, so you can imagine what it is like in a possibly high-profile SO/SA/SV case where the police are under pressure to make an arrest quickly. And where the police have perhaps been ‘trained’ in ‘the complexities of sex offense investigation’ that operates on the Correct Theory that the victim cannot (and should not be made to appear to be) wrong, and that any arrest will ‘send a message’.

Garrett makes a number of sensible suggestions that are simple enough to implement (except, I would add, for objections from the feminist-victimist advocates).

Currently half a dozen states are considering ‘eyewitness reform’ statutes and policies.

Garret is associated with The Innocence Project and you can look at some of their relevant material in this matter here and here .

Threatened with the testimony of an absolutely-sure ‘eyewitness’, it is hardly inconceivable that an accused – even though innocent – might figure or be advised by defense counsel to take a plea-bargain; thus, in effect, the accused is cowed into making a false confession.***

Testimony dubiously obtained through sub-rosa State arrangements with ‘snitches’ or testimony backed up by improperly conducted forensic testing simply adds more hellish complexity to the mess. (Although in Correct feminist-victimist Theory ‘complexities’ that afflict the accused are merely part of the punishment for a guilt already presumed.)

Says the Editorial: “Conservatives and liberals should have an equal interest in freeing the innocent and identifying the guilty”.

Bravely spoken.

But there’s wayyyyy more to it than just a great, good, and valid principle.

For radical-feminism, all sex is rape in the first place. For the more intense forms of victimism, it’s the victim’s pain (and avenging it or bringing 'closure'), not the intensely probing focus on ascertaining guilt (let alone innocence) that must take precedence. For both, taking a bite out of the culture-wide ‘oppression’ trumps the innocence or guilt of any particular accused; a rather insidious and toxic assertion that is only further contaminated by the presumption that in matters of sex all men are guilty anyway and this particular accusation is merely the pretext for taking another one off the street (reminding me of what Justice Scalia said only half-jokingly two decades ago: “he probably did something else wrong anyway”).

And for the law-and-order Right one is apparently innocent until accused, which dovetails nicely enough with the feminist-victimist presumption that all men are guilty in the first place: at the choke-point of the trial itself, both Left and Right can agree on what needs to happen to the accused.

Thus the Editors are woefully unaware (or choose to be) as to just how profoundly subverted the core great and good principles of the Framing Vision have been undermined in this country for the past 40 years, and especially in the past 20 years of the Mania Regime(s).

Under the relentless and unprincipled manipulations and agitations of feminist and victimist advocacies, and – far far worse – with the eager collusion of all three Branches of the national government and so many of the Branches of the state governments as well, and of the media for its own purposes – there are now many people in the country who not only unthinkingly or deliberately subscribe to the innocence-isn’t-the-point theory, but also can’t even begin to appreciate how the core principles of the Framing Vision, the Constitution, and of the Republic itself have been ‘emergency-reformed’ away.

Thus when the Editors conclude with an exhortation that “At this deeply divided moment in American politics, it’s hard to think of a more urgent and bipartisan cause where the problem is so well-understood and the solutions are so easily within reach” … I don’t think their conceptions really encompass the awful extent of the problem as it now stands.

Because to start implementation of these solutions is going to run right up against feminist-victimist insistence that the allegant’s (or ‘victim’s’) story cannot be doubted or tested. Can you imagine what they would say if an ‘eyewitness victim’ or a ‘victim’ reinforced by other ‘eyewitnesses’ were subjected to even the simplest testing procedures to try to clearly establish the identity of the actually guilty (let alone the validity of the victim’s ‘story’)?

I believe that there are now elements of the victimist advocacies who would agree with the objectives of The Innocence Project. But I cannot imagine that they are in the majority among their peers in the advocacy organizations who now rely on the gravy-train for jobs, status, and pay.

Nor, as I have been saying in recent Posts, do I think that the politicians are really prepared to antagonize a vital if radical ‘base’ in a difficult election year. Deal-makers, like used-car salesmen, aren’t known for their principles and courageous support of the truth, whatever betide. While they may piously agree with the scriptural exhortation to ‘let justice be done even if the heavens fall’ they aren’t really going to go along with the principle if it winds up that doing that justice is going to result in the Party’s or their own electoral fall.

And, lastly, in the overall Marxist-Leninist vision – in which far too much of the advocacy movement is soused whether they realize it or not – the only relevant ‘justice’ is not that meted out to any accused in any particular case but rather the only relevant ‘justice’ is that which serves the Cause.

Which isn’t really so far from the quiet presumption that the only important ‘justice’, in the long run, is that which serves the Party. And the regime. The Nanny State and the Security State are not only “sisters under the skin”, but are sibling-offspring of the Leninist-Maoist concept of the ‘revolution’ and the ‘revolutionary state’ and ‘revolutionary politics’ and ‘revolutionary justice’. Oy.
Contrary to what so many of the assorted advocates believe about their own Cause, it is the SO community that really is on the ‘cutting edge’ of American history, as the struggle to re-establish (or forever and meanly lose) the Framing Vision continues to intensify.


*Under the title ‘Out of Sight’, in the print edition for December 15, 2011. It is the issue’s Editorial, appearing on the first page.  The electronic link leads to a subscriber-only paywall.

**You can see a review here or you can enter ‘Convicting the Innocent Brandon Garrett’ in your search engine for reviews or where the book is available.

**Nor am I here implying that any accused who makes a false confession or takes a plea-bargain for something he did not commit ‘deserves whatever he gets’. Once you realize you are standing on ground-zero and the State is preparing to drop the Big One on you – courtesy of that eyewitness testimony – then you are faced with having to make some awful calculations (and defense counsel in a time of Mania are not out of line helping him to decide in favor of a plea-bargain rather than face an inflamed and under-informed jury on top of everything else mentioned above).

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