A Cool Examination Of The Facts . . . If There Are Any
By Kevin Rex Heine, Section News
I'm not sure if the Founding Fathers had "trial by media" in mind when they drafted Amendment 5 and Amendment 6 to the United States Constitution, but perhaps they should have. I say that because, as we have seen this past month, the media-driven "court of public opinion" apparently doesn't operate under the same legal protections rightly enjoyed by defendants in courts of law throughout this nation.
The Big Lie is a propaganda technique coined by none other than Adolf Hitler and perfected by none other than Joseph Goebbels. The essence of the principle is that, while everyone tells small lies (and thus will believe, upon a credible presentation of the facts, that a small lie is a lie), most people would be ashamed to resort to large-scale falsehoods. Thus most people would not believe that anyone could be so audacious as to fabricate a colossal untruth, even if the evidence could be presented to show this to be so. Therefore, lie big, stick to it, and keep repeating it until the masses believe it.
In an American court of law, there are rules regarding evidence and testimony, and the accused is entitled to a presumption of innocence unless and until guilt can be proven beyond reasonable doubt. However, thanks to modern society's complete perversion of the intent of freedom of the press, a "trial in the court of public opinion" operates by no such standards, if it operates by any standards whatsoever. Evidence and witnesses need not be independently corroborated (nor even necessarily credible), testimony is not necessarily subject to cross-examination, and the burden of proof is often upon the accused to establish his/her innocence beyond shadow of a doubt. This "perception is reality" bizzaro-land provides a very fertile environment for those who use the Big Lie as one of their standard strategies.
Consider the following case in point:
Back on Halloween weekend, Politico broke a story that stated that, during his three-year tenure as head of the National Restaurant Association, Herman Cain had been accused by at least two female employees of sexual harassment. Beginning with Halloween morning and continuing for the next four days, there were no fewer than 50 "news" stories run on just NBC, CBS, and ABC, never mind the rest of the mainstream media. Stories ran (in the New York Times on November 1st and Politico on November 3rd) detailing how much two of the women had been paid as a settlement, and an article on November 3rd (which is where we got the notion that Perry's campaign team was somehow involved) mentioned that a third woman had "come forward" to claim inappropriate behavior.
Mind you, this was on an issue that is about 12 to 15 years old (or thereabouts), was considered a settled matter back then, and had not so much as one actual accuser who was actually, by name, on the public record. However, the mainstream pundits (such as Ann Curry, Jim Acosta, and Chris Matthews) seemed to be under no obligation to let the facts, or absence thereof, interfere with a perfectly good coordinated smear campaign. Yet even though the National Restaurant Association offered to waive the confidentiality agreements and let the accusers tell their story, the offer to do so was rejected, and the accusers opted to retain their anonymity. And without names and details, over the weekend the story looked like it was going to die.
The following Monday, November 7th, an accuser (a fourth one) finally came forward to put a name and a face on the accusations. With her lawyer in tow, Sharon Bialek read from a prepared statement, and went into considerable detail about an alleged 1997 incident that supposedly occurred when she sought his help in a job hunt (after having been fired from the National Restaurant Association earlier that year). Two days later, Karen Krausharr confirmed that she was one of the earlier anonymous accusers, but even then didn't say much on the record.
Now that there were actual named accusers, questions started to get asked and the credibility of both Krausharr and Bialek was called into question. Even though Bialek's ex-boyfriend appeared to corroborate her story on Monday, November 14th, there was still the matter of why all of these allegations were stemming only from the three-year period when Cain led the NRA, and why they all seemed to originate from the Chicago office (a city in which there is no record that Cain either lived or worked). That the plausibility of the matter began requiring way too many assumptions, plus the intervention of the annual holiday weekend of feasting and football, once again seemed to encourage the death of a non-story.
But again, once the festival of patriotic gluttony ran its course, the story grew new legs and took on a new twist. On Monday, November 28th, the evening broadcast on FOX-5 Atlanta featured a Georgia woman who alleged a 13-year affair that had ended just before Herman Cain officially declared his candidacy for POTUS. The "evidence" supporting the accusations amounted to cell phone records, two autographed books, and Ginger White's say-so on various junkets (which should be easy to verify if true).
Rather than look into the rapidly mounting evidence that even this latest accuser wasn't particularly credible, the mainstream media instead engaged in a coordinated pile-on that seemed to draw the presumptive conclusion that Cain would walk away from the presidential primary, even though there was no outward evidence that he would do so. And indeed, last Saturday afternoon, at what was originally planned as the grand opening of Cain's national campaign headquarters, Herman Cain officially suspended campaign activities. (This isn't the same thing as an actual withdrawal, though the media would love to have you believe that, but whether it's a distinction without a difference is currently an open question.)
All that having been said, I've noticed that the news media, having completed their lynching, has moved on to other "news items" of interest (including, apparently, presumptive speculation with regard to whom their recent victim might endorse). I'm in no such hurry. Personally, I'd much rather take a few minutes and coolly review the events of the past four or five weeks, this time doing what ought to have been done in the first place. In other words, let's examine the facts as we know them, without spin or political preference, drawing no conclusions that are not supported by the facts verifiably on the record, and actually operate on the presumption that the accused is innocent until and unless proven guilty.
The original three accusers
Let's review what we really know about these three women. One, who still remains unnamed, was paid about $35,000 in a settlement on her accusation. Another, accuser number three, also remains unnamed; but, her report is allegedly corroborated by Chris Wilson, a former NRA pollster who now works for Rick Perry's campaign. However, in the case of these two women, the principle of "there can be no crime without an accuser" must apply. In this case, as would be expected in a court trial, the accuser must be on the record by name; until and unless we find out who they are and what the substance of their accusations is, we are compelled to treat their accusations as though they don't exist.
I found it somewhat interesting that the Politico reporter, when called out as to whether he had any actual evidence beyond what was already on record, pointed to the original story's popularity as proof that the story was valid. (And I'm sure that this misdirection involves at least a half-dozen logical fallacies.)
Now that she's been outed, we do know who Karen Krausharr is. She's the accuser who was paid $45,000 as a settlement on her complaint. In fact, according to her attorney, she was quite eager to tell her side of the story, and called on the NRA to lift the confidentiality agreement so that she could speak. However, as I mentioned before, when the NRA complied with her request, she suddenly decided against reliving the painful and heart-wrenching ordeal. (Note to Ms. Krausharr: if you're going to bluff, be prepared to be called.)
When she finally did speak on the record, Ms. Krausharr said . . . actually not really anything of substance. However, some digging by the Atlanta Journal-Constitution uncovered that Ms. Krausharr is something of a serial complainer. Crying wolf, appealing to ignorance (asserting that a claim is true because it has not been, or cannot be, proven false), and attempting to shift the burden of proof to the accused would not fly in an actual courtroom, and it's not going to fly here.
As a relevant sidebar, in his November 1st broadcast and November 2nd broadcast, Mark Levin provided a plausible explanation for why Herman Cain wasn't providing details (or was providing them piecemeal when he did). He also pointed out that, absent any actual evidence, both the lawyer's accusations and the media's sensationalistic reporting of them amounts to nothing more than a coordinated smear campaign devoid of all journalistic integrity. That the media was also demanding that Cain fill in the blanks of the accusatory narrative (which is onus probandi upon the accusers and/or their attorneys) he identified as "push journalism" - attempting to create a story where one doesn't otherwise exist.
There's also the question of how, exactly, a pair of supposedly confidential legal agreements were leaked to the press in the first place. Let's table that question for now; I'll get back to it.
Gloria Allred introducing Sharon Bialek
Nothing says "let's make a mountain out of a latrine" like having a press conference at the New York Friars' Club (complete, apparently, with a member of Howard Stern's staff in the press phalanx) and being introduced by a known celebrity media whore. Yet this is how we were introduced to Sharon Bialek, "victim number four" according to the media, and the first one to go on record and in the open. Ms. Bialek read from a prepared statement (keeping a straight face the entire time), and Ms. Allred provided "corroborating details" from sworn affidavits that she would not share with the press.
And here's why becoming the public face of this type of accusation is dangerous. If there is no corroborating physical evidence (conspicuous by its absence) or corroborating same-day witnesses (also conspicuous by their absence), then the credibility of the accuser is absolutely in play. Said credibility had better be airtight and bulletproof, because if it collapses, so does the case.
So let's take a look at Sharon Bialek's credibility, shall we?
Maggie's Notebook provides us with an interesting rundown of background information (with links to sources) that not only calls Ms. Bialek's credibility into question, but actually provides us with enough information to throw that credibility out the window. Here's some of the lowlights:
Almost a dead giveaway that this story is pure fabrication is the fact that it seems to be about as adaptive as the Borg. By this I mean that, every weekend that everyone who wasn't drinking the kool-aid was moving on, the following Monday the story morphed specifically to counter the reasons it was being written off. Anonymous accusers essentially a non-story? Enter Sharon Bialek. Uncorroborated allegations not worth a second look? Enter Victor Zuckerman. Story starting to require way too many assumptions to be credible? Well . . .
The alleged mistress, Ginger White
Yes, Ms. White is from Atlanta, not Chicago. Yes, Ms. White is alleging to a 13-year affair, not sexual harassment or the like. (That said, I wouldn't be the least bit surprised if no more than six degrees of separation existed between her and either Axelrod or O'Grady; and yes, Scales, that is clear permission to unleash your inner bloodhound.) However, other than Ms. White's say-so, do we have any evidence or witnesses on the record to corroborate her story?
No, we don't. In fact, had the mainstream journalists actually demonstrated any professionalism whatsoever, we would have known no later than two days following that the available witnesses and evidence, as well as Ms. White's own testimony, do a better job of reinforcing Mr. Cain's position than undermining it.
Mychal Massie, in his post on December 1st and his post on December 2nd, does a great job of picking apart inconsistencies in Ginger White's account that George Stephanopoulos didn't seem to take an interest in:
Turning this over to the jury
Homo praesumitur bonus donec probetur malus (one is innocent until proven guilty). This is a core legal principle of every civilized society back to antiquity. Even if there are three credible eyewitnesses observing the accused in the act of commission, civilized jurisprudence still requires that the fact of guilt be established plainly, on the record, in a fair and public trial.
That's what should have happened with Herman Cain. Even before the first salacious news story was broken six weekends ago, someone should have independently verified whether there was any substance whatsoever to anonymous claims leaked from supposedly confidential records. Yes, some will say that the mere presence of sealed records means that something happened, ignoring the clear fallacy that the crime in question isn't necessarily that something. There are any number of reasons that a settlement, especially one amounting to no more than a year's salary, would have been paid out on a harassment suit; most of them don't prove that the alleged harassment actually happened.
Nevertheless, the bell has been rung. And the media circus since that ringing has demanded that Herman Cain explain himself and fill in the blanks in their narrative. Shifting the burden of proof and appealing to ignorance works in a media trial, but is expressly forbidden in a court trial. The burden is, and of right ought to be, squarely and exclusively upon the accusers to prove beyond reasonable doubt the truth of their accusations. They have no legal or logical basis for insisting that their story must be true because Mr. Cain cannot prove it false . . . proving truth or falsity is not the responsibility of the accused!
So far as we have on the record, there is no evidence to support any of these allegations. The media claims that evidence exists, but where is it? Have we actually seen the settlement records? Do we know what they say about the merits of either original accusation? Ms. Bialek claims that Mr. Cain "upgraded" her hotel suite. There should be a paper trail of that laying around somewhere; where is it? Ms. White claims that Mr. Cain gave her several gifts during the course of their alleged affair. Other than two books (and there's no proof that they were gifts), where are the rest of these gifts? What about these text messages? Their content hasn't been made public, so we don't actually know what they say.
So, just to make this clear, the "prosecution" has not provided one shred of evidence that supports their case.
What about witnesses? Other than the alleged victims, and I'll get to them in a minute, the only witness we have is Dr. Victor Zuckerman, the ex-boyfriend of Sharon Bialek. According to what he's said on the record, he certainly wasn't an eyewitness. He wasn't even in the same city when the alleged event happened. All he corroborated on the record is that Ms. Bialek said what she said. That's not much of a witness statement.
So, finally, we review the alleged victims.
The confrontation clause of the U. S. Constitution provides that the accused has the right to cross-examine any witnesses that testify against him. As we have already discussed, the two anonymous accusers who chose to not step forward must remain out of your deliberations; where there is no accuser, there is no crime. By the same reasoning, Karen Krausharr, who refused to offer any testimony (beyond what remains out of public view in a confidential record) cannot be considered either; under the confrontation clause, an accuser who cannot be cross-examined is the same as no accuser.
Sharon Bialek has credibility problems. First, she was fired from a job at the NRA for filing a false sexual harassment charge; that's a material point in a sexual harassment allegation. Second, a key element of her story (the alleged suite upgrade) should have corroborating evidence available, yet no such evidence is on the record. Third, by her own admission, she's connected to a man with a known reputation for being a smear merchant. With neither corroborating physical evidence nor corroborating material witnesses, Ms. Bialek's credibility, in this case the lack of it, is absolutely in play. That absence of credibility must be taken into account in your deliberations.
Falsus in uno, falsus in omnibus (false in one, false in all). The basis of this legal principle is that a witness who willfully falsifies in one matter is not credible in any matter. If Sharon Bialek's credibility is considered damaged, then Ginger White's credibility probably should be considered destroyed. At least twice she's been caught in a direct lie (though the media, characteristically, failed to follow up on either). Additionally, losing a libel suit is typically considered an indicator that you weren't telling the truth in the matter before the court. And nothing, absolutely nothing, that she suggested as evidence to support her allegation is actually available, on the record, for independent scrutiny.
The way that the media has presented this entire case, they would have you believe that Herman Cain has to tell his side of the story and fill in their blanks, otherwise he must be hiding something (and therefore by extension must be guilty). But the only reason that the media would do that is because they don't otherwise have a case; if they did, then this would actually be tried in an actual court.
The self-incrimination clause of the U. S. Constitution is intended to protect a citizen's right to silence. That is, the charges leveled at the defendant must be assumed to be false until and unless they can be proven to be true. In other words, the media is compelled by both constitutional and legal principle to prove their case, beyond reasonable doubt, in the face of Herman Cain's total silence in his own defense.
They haven't done it, and they cannot do it. And that's why they resorted to a coordinated smear campaign, because they know that their case has "reasonable doubt" spray-painted all over it.
A Cool Examination Of The Facts . . . If There Are Any | 26 comments (26 topical, 0 hidden)
A Cool Examination Of The Facts . . . If There Are Any | 26 comments (26 topical, 0 hidden)
Related Links+ Amendment 5
+ Amendment 6
+ Big Lie
+ presumptio n of innocence
+ reasonable doubt
+ broke a story
+ no fewer than 50 "news" stories
+ New York Times on November 1st
+ Politico on November 3rd
+ article on November 3rd
+ Ann Curry
+ Jim Acosta
+ Chris Matthews
+ the offer to do so was rejected
+ Sharon Bialek read from a prepared statement
+ confirmed that she was one of the earlier anonymous accusers
+ ex-boyfrie nd appeared to corroborate her story
+ the evening broadcast on FOX-5 Atlanta
+ cell phone records
+ two autographed books
+ officially suspended campaign activities
+ presumptiv e speculation
+ who still remains unnamed
+ her report is allegedly corroborated by Chris Wilson
+ pointed to the original story's popularity as proof that the story was valid
+ logical fallacies
+ according to her attorney
+ is something of a serial complainer
+ November 1st broadcast
+ November 2nd broadcast
+ New York Friars' Club
+ interestin g rundown of background information
+ fired from her position with the National Restaurant Association
+ long history of major-league financial problems
+ apparent reputation for being a gold-digger living way above her means
+ Tom Cohen of CNN
+ Megyn Kelly of FOX
+ or used to anyway
+ 505 North Lake Shore Drive
+ question that I left on the table earlier
+ the current president of the Illinois Restaurant Association
+ spelled out by Ann Coulter
+ clear smoking gun
+ post on December 1st
+ post on December 2nd
+ ABC World News
+ one in 1996
+ one in 1997
+ she never heard Cain's name come up even once
+ never made public record
+ confrontat ion clause
+ self-incri mination clause
+ right to silence
+ Also by Kevin Rex Heine