Frankly, I Don't Care How Due Process Makes You Feel

By Ken Law

I stopped blogging about Nakoula Basseley Nakoula, the maker of the "Innocence of Muslims" video. I stopped because (1) I am interested in discussions about what the law is, to the extent that discussion is based on law, (2) I am interested in discussions of what the law should be, (3) I am interested in discussions of how courts work, to the extent those discussions are premised on actual experience and facts, but (4) I am completely uninterested in what people feel the law is, and (5) I am completely uninterested in what people feel happens in courts, frequently based on TV.

Discussions of what the law is based on feelings annoy me. They're about mob rule, not the rule of law.

Regrettably, feelings prevail in discussions of the criminal justice system. And — stereotypes aside — they prevail across the political spectrum. As I have argued before, being "liberal" or "progressive" is not a reliable indicator of being supportive of the constitutional and statutory rights of those accused of crimes. On the one hand, since the Warren Court, "conservatives" have used emotive terms like "soft on crime" and "coddling" and "pro-criminal" to attack decisions that protect the rights of the accused. More recently conservatives have suggested that law firms willing to offer pro bono defense to indefinitely confined and as-of-yet uncharged detainees at Gitmo are shocking, unpatriotic, and probably in the secret pay of terrorists. And on the other hand . . . you have the progressives.

This week some progressives are very upset about a rape case. Specifically, they are very upset about a Supreme Court of Connecticut decision overturning a rape conviction. The case is Fourtin v. Connecticut. Fourtin was convicted of sexually assaulting a profoundly mentally and physically handicapped woman, a woman who clearly had no capacity to consent. If you read and relied upon "progressive" sources — like the Huffington Post or Think Progress or BoingBoing — you'd conclude that the Supreme Court of Connecticut held that Fourtin wasn't guilty of rape because the evidence suggested that the victim could have resisted but didn't.

The problem is that Think Progress, Huffington Post, and BoingBoing are full of shit.

Blogger "Gideon" writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can't afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length here and here, prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is "physically helpless." What the Supreme Court of Connecticut found was not that "if a severely handicapped person could resist but doesn't, its not rape." What the Court found was that this victim — who, though severely handicapped, could move and resist — was not "physically helpless" within the meaning of the statute, which is narrowly confined to people who are "unconscious or for some other reason physically unable to communicate lack of consent." The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn't "physically helpless" under the statute. The Court also repeatedly criticized the prosecutor's decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was "unable to consent to such sexual intercourse"), and failure to offer evidence of state's latecoming theories under this statute.

I'm outraged that the prosecution made a lousy and seemingly inexplicable call. I'm outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I'm not outraged that the state has to prove that you're guilty of the specific crime you're charged with to put you in prison. That's fundamental to due process. "Well, hell, he didn't do what he's charged with, but he did something else awful" is tyrannical. I'm more afraid of the state's ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right "to be informed of the nature and cause of the accusation" against you. "You're a criminal, we'll figure out what statute you violated after we see how the evidence turns out at trial" is not due process.

But some people feel more strongly about rape than they feel about rights. That's why you have reactions like the one I witnesses tonight at BoingBoing. BoingBoing framed this either dishonestly or ignorantly, saying the Court overturned the rape on the grounds that the victim could have resisted but didn't. Over the course of an hour, I saw moderators delete comments pointing out that this frame was wrong. All but one of the comments linking to Gideon's posts were deleted. Before deleting it, moderator Antinous reacted angrily to dissent and offered us the perfect articulation of why I say that progressives are not reliably supportive of due process:



And then the mods sent almost all of the posts off to the memory hole and closed comments. Adam has screencaps of some of them if you are interested.

Here's the thing: Antinous with the "why don't you shut the fuck up instead of being a rape apologist" is just the progressive version of Cully Stimpson and his "lawyers defending detainees are probably in the pay of the terrorists." Antinous thinks that not being guilty of the particular crime you were charged with is a "technicality." Antinous doesn't grasp double jeopardy or doesn't care if the defendant in question is accused of a crime that makes Antinous angry. If Gideon and I are objectively rape apologists, Atinous is objectively pro-ignorance and anti-due-process — objectively, the government's stooge. Antinous cares more about how Antinous feels about rights in tough cases than about the rights themselves. These are serious times, and rape and due process are serious topics, but Antinous and his or her ilk are not serious people. If we don't want society to collapse, we need people to act based on the rule of law, not based on how they feel. Go sit with the mob, Antinous, and let the grown-ups work. Or, as I would be reduced to saying at BoingBoing, g fck yrslf, ntns.

If we're going to defend rights — if we're not going to let them be chipped away, bit by bit, in cases involving rape or terrorism or anything else that engenders strong feelings — then we're going to have to be ready to be called terrorist-sympathizers and un-American and even rape apologists by the likes of Antinous. But I can't think of any earthly reason why we can't inform these people that they're full of shit.