THE NEW POPULISM: "OFF WITH THEIR HEADS"

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Case I.

In March, 1770, eight British redcoats fired on a group of angry Bostonians. Five colonists were killed in the historic Boston Massacre. Local authorities indicted the redcoats for murder. Lawyer John Adams, later to become the second President of the United States, was an anti-British Patriot,  but agreed to defend the "lobsterbacks." He overcame his political views in order to protect and project the dignity and fairness of colonists' American legal system. 

Despite the howls of the anti-British mob, a fair trial ensued in which it became clear the redcoats had been attacked by the colonists and had fired in self-defense. All but two were acquitted.

In May, 2019, Harvard Law School Professor Ronald Sullivan agreed to consult with the legal team defending Harvey Weinstein. Students who had the privilege of attending that elite institution rioted, vandalized college buildings, and demanded Sullivan be fired from his Deanship. The President of Harvard, a lawyer who had apparently never heard of John Adams, complied.

The faculty and alumni protested the firing, but they didn't spray paint on campus buildings, and their protests were ignored.

I overcame my shyness, and set out my views in a letter to the New York Times. No surprise, that PC publication did not print it. But my real purpose was to send a copy to the President of Harvard, and I did. This is what I said:

"The virus that has successfully attacked and eliminated shame from the genome of Republican members of Congress has now infected the Administration of Harvard College. Students complained, and then misbehaved by vandalizing campus buildings, because of the "trauma inducing" presence of law school Professor Ronald Sullivan ever since he joined the criminal defense team of Harvey Weinstein. So the college sacked him and his wife (also a teacher at Harvard Law School) from their long-held posts as Deans of a 400-student dormitory, citing a need to "change the climate." Easier to bow to pressure of student mob action than to teach the vandals about the First and Sixth Amendments. I guess Alan Dershowitz is next? There are many who think his "client" is far more "trauma inducing" than a score of Harvey Weinsteins."

Harvard President Bacow response made me queasy. He wrote that firing Sullivan was justified because his representation of Weinstein had created a "challenging climate."

Forget John Adams: Bring on the guillotine.

Case II.

In 1989, five black teenagers were convicted by two separate juries of rioting, assault on four people in Central Park, and assisting in the rape of a jogger by an unidentified sixth attacker. The convictions were affirmed on appeal. When the sixth attacker later came forward and said he alone raped the jogger, all charges against the Five were vacated.

Thirty years later, a noted film director produced a powerful film that accused the prosecution team of misconduct in the investigation and prosecution of the case. Numerous tracts and legal opinions showed otherwise, and those associated with the film admitted that the significant film dialogue that evidenced the alleged prosecutorial misconduct was a fabrication.

Nevertheless, the PC mob reacted. Without even considering the facts and arguments indicating the inaccuracy and unfairness of the allegations against the prosecutors, Fairstein's book publisher announced cancellation of her contract, donors to child welfare charities she supported vowed to suspend contributions, and to avoid hurting colleges and charities with which she was associated, she withdrew from them. Most ludicrous, Vogue Magazine, that self-proclaimed stalwart of women's rights, revoked a 1993 award naming Fairstein as its Woman of the Year.

All of this happened before any of those groups even sought Fairstein's response to the false charges about her in the film.

And yesterday, the press reported that a group of students at Columbia Law School, doubtless encouraged by the i) success of their compatriots at Harvard, and ii) the mob's success in defaming Fairstein, protested to the Columbia Law School administration that Elizabeth Lederer, the prosecution's trial counsel in the Central Park Five cases, was teaching at the school and she hadn't apologized for her transgressions.  Lederer, doubtless believing she had nothing to apologize for, avoided the collision and gracefully resigned from the Law School.

Forget John Adams. Just bring out another guillotine.

Case III.

The power of "new mob" grows alarmingly. This is not just students and weak-kneed educators. All sorts of businesses, and, of course, politicians, are guilty. Trump is not the only one who seems to think the rule of law should be, and can be, bent to assuage the passions of the day.

One of the problems of being a retired lawyer is my psychic need to actually read details of news stories involving legal matters.

Jacob Whisenhunt was a West Point cadet. On a Field Training Exercise his squad was assigned a patch of ground upon which to bed down in their sleeping bags. Each sleeping bag was but "a few feet" from the next one. Female Cadet LM's was next to Whisenhunt. Her's was wrapped in a "crackly" space blanket.

After the exercise was over, cadet LM alleged that while she had been asleep, entirely ensconced head to toe in her sleeping bag, she awakened to find Whisenhunt in the bag with her, digitally penetrating her. Once she was awake, penile penetration ensued. She made no sound throughout and none of the close-by cadets heard a thing.

In accordance with the Military Code of Justice, the Commandant of West Point convened a general court- martial, and appointed six officers to be the jury. Whisenhunt said the liaison was consensual, but was convicted of rape and sentenced to 21 years in prison. In accordance with military justice procedure, the  officer who convened the court and appointed the jury then reviewed the trial record and confirmed the verdict and the sentence.

Three years later, a military appeal court reversed, and dismissed all charges.

The Court (two women, one man, if you find that fact material) noted that its responsibility was to review all the evidence, and reach their own conclusions. They were authorized to affirm only those convictions "that we are ourselves convinced have been proven beyond a reasonable doubt."

The judges set out a laundry list of undisputed facts pointing to reasonable doubt at the very least: the parties' consensual flirting and touching prior to the exercise, LM's complete silence during the intercourse, no steps by Whisenhunt to stifle or threaten her, indeed they held their breath when they thought there was movement from an adjacent cadet, the lack of discovery by people just a few feet away, Whisenhunt made no threats, no effort to hide his semen in her bag, etc., etc, etc.

Bottom line, the unanimous court concluded there was reasonable doubt about guilt. I suggest no reasonable person reading their opinion could disagree with their conclusion.

Ok, one case, an appellate court decided an appeal by applying facts to the appropriate legal standard. The result?

The PC mob was outraged: Senator Gillibrand, who presumably was not at the trial, and presumably read none of the trial or appellate briefs, decried the ''terrible message to survivors."

Gillibrand was hardly alone. The NYTimes reported, "The decision drew criticism from advocacy groups. They said the ruling was upsetting in light of the "Me Too" movement."

 A spokesperson for a group called Safe Horizons is quoted saying, "This is really sad because we have come so far with the "Me Too" movement... ." 

And a group devoted to protecting women in the military called for the figurative beheading of the three judges on the appellate court. He called for a complete "revamping the military appellate system."

All this on a case that was not even close? Whisenhunt's lawyer said he thought the prosecution's case was so weak it would never have gone to trial in a civilian court.

What are we to take from this? From now on, decisions are to be made Soviet style: first the verdict in accordance with the desired political result, then the trial?

Screw the old Rule of Law. Order up more guillotines.

A bientot.

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