Holy Joe Lieberman Shills for God

On its face, Lieberman's interpretation of the First Amendment prohibition of state support for religion is ludicrous. The First Amendment is scarcely obscure: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As Barry Grey correctly observed in an interesting essay on the World Socialist website, "Lieberman, in defending his views on religion and political affairs, has repeatedly stressed the role of religion in establishing a unifying ethical principle among the American people. He may sincerely believe in this conception. That, however, does not detract from the fact that his notion of the role of religion is reactionary, and reflects ignorance of the history of American common law and the evolution of the democratic principles that were laid down in the Constitution and subsequently expanded."

Such principles allowed Americans to think as they pleased so long as they didn't harm other people or break the law. Whether they believed in God, Gaia or the sacred anima of the brussels sprout was their business. What Lieberman is proposing is a retrogressive throwback to the notion of religious-based "ethical unity" that was prevalent prior to the American Revolution. The progressive significance of the abandonment of ethical unity is explained by William E. Nelson in his study of the evolution of American jurisprudence, The Americanization of the Common Law:

"Taken together, the various libertarian changes in law [in the late 18th and early 19th centuries] did far more than merely restructure institutions, safeguard the procedural rights of criminal defendants, and grant equal rights to certain previously underprivileged classes. Those changes contributed in important ways to the breakdown of the ideal inherited from the pre-revolutionary period that communities should stand united in the pursuit of shared ethical ends. The breakdown of ethical unity began in the 1780s with the virtual cessation of criminal prosecutions for various sorts of immorality... What was beginning to occur after the Revolution was not significantly more immorality but an abandonment of the pre-revolutionary notion that there was any one set of ethical standards that all men ought to obey."

The response to Lieberman's astounding assertions was feeble. If such words had come out of the mouth of Pat Buchanan or Pat Robertson, groups such as People for the American Way would have rushed to sound the alarm. But since Lieberman is a Democrat and furthermore a Democrat running as Al Gore's man, a decorous silence has mostly prevailed. It's an odd day when one has to cite the Anti-Defamation League for doing the (obviously) right thing, since it almost never does. But on Aug. 28 the ADL published an open letter denouncing Lieberman's use of the elections to promote religion. The signatories, ADL National Chairman Howard Berkowitz and National Director Abraham Foxman, wrote, "The First Amendment requires that government neither support one religion over another nor the religious over the nonreligious... The United States is made up of many different types of people from different backgrounds and different faiths, including individuals who do not believe in any god, and none of our citizens, including atheistic Americans, should be made to feel outside of the electoral or political process." B'nai B'rith, the parent group of the ADL, dissociated itself from Berkowitz and Foxman.

As usual, the American people have been telling pollsters they think God is a good thing, in the same way they tell pollsters they have had a personal meeting with Jesus and believe the stars exercise a minute-by-minute influence on our lives. More than half of those polled (51 percent) by Princeton Survey Research Associates, cited by Newsweek, said they agreed with Lieberman that religion should play a bigger role in public life. The survey also has Gore up by 10 points. Sixty-one percent of those polled said it is appropriate for a candidate to discuss his religion and beliefs and 40 percent said the amount of time Democratic vice-presidential contender Joe Lieberman has spent discussing his own beliefs is "about right."

You Be the Jury And talking of democratic rights, and their erosion, here's the concluding part of my serial, addressing the myth that a criminal defendant should be convicted or acquitted based on whether he or she had committed the crime, not on whether he or she had committed prior misdeeds. This principle was once a basic part of California jurisprudence, but is plainly on the way out. The story so far: We have learned that in the spring of 1997 April C., 29 years old at the time, was living with her husband Michael in an apartment in a town north of Los Angeles, an abode where they were joined, at Michael's invitation, by Robert F. All three were members of the Association of Retarded Citizens (ARC). The episode that placed Robert F. on trial was forcible oral copulation, a charge leveled by April, who also conceded in court that the three had slept in the same bed, had watched porno movies and the Playboy channel and that all three had engaged in various sexual activities. The jury was allowed to hear that Robert had a record of predatory sexual behavior, involving his rape of Kathleen W. two years earlier.

So, should the court have allowed the jury to hear details of Robert's sexual misconduct with Kathleen, which probably tipped the balance in persuading the jury that Robert was a violent predator instead of a nut cavorting with a couple of other nuts? Thirty years ago April's complaint wouldn't have stood a chance. Any complaining witness in a sex-crime case faced inevitable rituals of degradation and abuse in court. Juries would be instructed that such charges as forcible rape are easily fabricated and deserving of especially rigorous scrutiny, as though complaining witnesses in sex cases were somehow inherently less credible than others. Juries would be instructed that a previously "unchaste" woman was more likely to have consented to a charged sex act than a previously "chaste" one. Defense lawyers could elicit, often with lengthy and prurient cross-examination, details of previously "unchaste" behavior by the complainant.

The women's movement changed all that, vastly for the better. By the mid-70s the California Supreme Court struck down the ancient instruction to juries that victims of sexual offenses were inherently less credible than alleged victims of other crimes. And it was not too long before the California legislature barred jury instructions to the effect that an "unchaste" woman was more apt to have consented to a sex act than a "chaste" one. It also barred courts from making complaining witnesses undergo psychiatric examinations. Most importantly, a complaining witness' sexual past is now inadmissible, with one exception: If a defendant raises a claim of consent, and if he or she has previously committed consensual sex acts with the complaining witness, those acts are relevant to show that the complaining witness consented to the charged act and/or that the defendant reasonably believed that she did.

Until 1995 a basic part of California jurisprudence was that you couldn't use prior misdeeds to show a defendant's predisposition to commit such acts. But in 1995 the California legislature enacted a law creating an exception. Under Evidence Code section 1108 a defendant's prior sex crimes may be used to show a predisposition to commit such crimes. The promoter of this change was then state Attorney General Dan Lungren, campaigning at the time to succeed Pete Wilson as governor of California, and eager to consolidate a reputation as the foe of rapists and child molesters.

California courts have subsequently turned down complaints that 1108 violates basic principles of due process. The only limitation on admissibility of prior sexual history of a defendant is now a proviso (section 352 in the Evidence Code) that trial judges may exclude evidence if they feel its probative value is substantially outweighed by factors such as undue risk of prejudicing a jury. But appeals courts very, very rarely concluded that a judge abused such discretion.

The net consequence is that trial judges have almost total carte blanche to admit evidence of prior sex crimes, or to admit evidence of prior domestic violence in a case involving domestic violence. Prosecutors love this new latitude since, as one defense attorney remarked to me, "it inflames the hell out of a jury?thus showing exactly why such evidence used to be barred."

The case involving April, Michael and Robert shows just how badly this new latitude in admitting prior history can be abused. There were only three witnesses. The complaining witness, April, was mentally retarded and her testimony was a mess, full of contradictions and factual inconsistencies. Another witness, a deputy sheriff, gave testimony that largely impeached the complaining witness, showing that what she told him (that she and Robert had been having sex for three months) was a long way from her trial testimony. Nonetheless the jury convicted, and Robert was sentenced to 55 years to life, on the basis of April's semicoherent testimony and the fact that he had previously raped someone. Unless his conviction were overturned, Robert would face at least 47 years in prison (85 percent of 55 years) before he could seek parole.

Robert's appeal was handled by Jim Fahey, who's based in Arcata, Northern California. The appeals court found no problem in the introduction of Robert's prior sexual history nor in the other factors noted above. Right now, Robert would be doing hard time, most likely for the rest of his life, were it not for Fahey's resourcefulness in discovering an error in the judge's instructions to the jury. You will recall that the only exception to a prohibition against introduction of the past sexual history of a complaining witness was if the defendant raised a claim of consent, and if the witness had previously committed consensual sex acts with the defendant. In this case the acts are relevant to illustrate either consent by the complainant in a subsequent encounter, or the belief of the defendant that there was consent.

Now, under California law, the term "sexual intercourse" applies to penile penetration of a woman's vagina, but not to sodomy and thus presumably not to oral copulation. The judge therefore gave an instruction that told the jurors that proof of prior sexual acts may be considered "to show the disposition or intent of the defendant towards the other person" and not for any other purpose.

Fahey pounced on the discrepancy between this very limited instruction and a subsequent version introduced in the California courts, which stated that evidence of prior sexual consent could be considered by jurors if it showed that the complaining witness consented to the act(s) of intercourse charged and that the defendant had a good-faith reasonable belief that the complaining witness consented to the act of sexual intercourse. Fahey found a case where the Fourth Appellate District in California had pondered the crucial distinction between vaginal penetration and oral copulation and had ruled that "We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation."

Fahey won the day for his client on this point, and Robert's conviction was overturned. If the prosecution decides to go at him again in a new trial, he'll face the same penalty. But Fahey reckons that it was only because of its uneasiness at the egregious nature of the facts in this case?the three principal actors being retarded, and so forth?that the Court of Appeals overturned the conviction. If the evidence against Robert had been even slightly stronger, the Court of Appeals would have deemed the error in judicial instruction to be "harmless."

These days the doctrine of "harmless error" is invoked almost reflexively by appellate courts, with literally 10 or 20 errors in a single case held to be "harmless," both individually and cumulatively. For admirable reasons, the women's movement prompted reform in the rules of conduct governing cases of sexual abuse. An opportunistic attorney general aiming at higher office widened the potential breach in due process decreeing that you stand trial for what you did in the specific instance for which you stand accused. This breach in due process will no doubt be widened as we enter a new era. You will stand trial for the entire conduct of your life, for being a bad person, for having a bad character and, if Joe Lieberman's view prevails, for being insufficiently attached to God and his laws.