Why We Shouldn’t Convict Roy Moore In The Court Of Public Opinion Just Yet

Why We Shouldn’t Convict Roy Moore In The Court Of Public Opinion Just Yet

A bare claim should be insufficient to convict a person outright, even in the court of public opinion. There should still be a presumption of innocence and a demand for veracity and proof.
Jenna Ellis
By

If true. These are the two most important words that aren’t appearing anywhere amid the allegations of sexual misconduct against Roy Moore, the Republican former judge running in the December special election for the Senate seat vacated by Attorney General Jeff Sessions.

Last Thursday, an allegation—a statement unsupported by additional evidence or proof—surfaced in a Washington Post article claiming that Moore, as a 32-year-old adult, had a relationship with a 14-year-old girl almost 40 years ago in 1979. Since then, a new allegation has also been leveled, accusing Moore of attempted rape. Seven women now accuse Moore of sexual misconduct decades ago, three for dating relationships in their late teens.

If true, no one on either side should defend such conduct as morally or legally permissible. But those important words aren’t appearing anywhere in any context over the past week, and I have been saying long before the Moore story broke that due process matters amidst any allegation, even in the court of public opinion.

Yet the mainstream media has since gone nuts, with pundits and politicians on both sides of the political spectrum calling for Moore step down from his Senate race, apparently believing the allegations immediately. Senate Majority Leader Mitch McConnell (R-KY) has led the call to rescind endorsements, saying, “I believe the women,” and Sen. Corey Gardner (R-CO), chair of the National Republican Senate Committee, said in a statement that the allegations “prove” Moore is unfit for office.

A few have responded with defenses of Moore, including Alabama state auditor Jim Ziegler, who invoked what can only be described as a crazy defense: prominent adult male biblical figures had relationships with teenage girls too. This “defense” appears just as much politically motivated and is another quick assessment without verification.

What Standard to Use for Accusations Against You?

What all of this noise fails to consider is the actual heart of the issue—the truth. No one is asking, Is it true? If it is true, of course Moore should step down. But what if it’s false? What makes McConnell able to adequately assess the credibility of the allegations? How can anyone assess the credibility of these allegations that quickly?

It seems the trial by media is only concerned with whether we previously liked Moore politically. If we do, we react with immediate defense; if we don’t, we react with immediate damnation. Both forget to ask what is actually true. My question for McConnell, Gardner, and anyone else quick to determine guilt: What if this was you?

But the court of public opinion isn’t concerned about the truth, due process, or any kind of process. Over the past weeks since Hollywood exploded with the Harvey Weinstein stories, it seems everyone who is disliked politically or socially can be an easy target for allegations of sexual misconduct.

There may be truth to some or many of the allegations and if a claim is proven, it should be dealt with accordingly. Fact-finding, evidence gathering, testimony, the ability to cross-examine witnesses, fair and reasonable assessment of credibility are all part and parcel of due process. But a bare claim itself (even multiple claims) should be insufficient to convict a person outright, even in the court of public opinion. There should still be a presumption of innocence and a demand for veracity and proof.

The Truth Is What’s Most Important Here

This also isn’t a new tactic. Particularly for the conservative right, moral and righteous indignation almost immediately kicks in after any accusation against a conservative, and Republicans are quick to distance themselves from anyone considered tainted. Such is Moore today. With quick retreat, we are not only encouraging future weaponizing of the unsubstantiated rumor mill, but we are also failing to be genuine conservatives and conserve the principle of fundamental fairness and truth-seeking.

Take, for instance, the yearbook inscription media has offered as corroboration. According to his accuser, Moore signed the woman’s high school yearbook: “To a sweeter more beautiful girl I could not say Merry Christmas. Christmas 1977. Love, Roy Moore, D.A. 12-22-77 Olde Hickory House.”

Truth-seeking requires a fair assessment of this “evidence.” A defense attorney would have a handwriting analyst compare the yearbook with Moore’s handwriting and ask questions of the accuser. Why would a student already have a yearbook in December? Why would Moore, an assistant district attorney at the time, sign “D.A.”? Every prosecutor knows the difference between a deputy or assistant D.A. and the elected or appointed district attorney. It would be similar to Mike Pence signing his name “President Pence.” Possible? Yes. Likely? No.

These questions matter. The answers matter. The truth matters.

With time comes additional facts and the ability to determine truth from falsity. Less than a week after one woman’s allegation, Moore’s attorney said the woman had actually been a party in Moore’s courtroom for a divorce action after the supposed attempted rape. According to the attorney, she didn’t ask for recusal or bring out the allegations against Moore then. Why? These are questions that need answers, and frankly simply need to be asked.

False Accusations Hurt People. That’s Why We Verify

The pushback to the due process argument is of course that the political process isn’t a criminal or even civil courtroom, and the allegations don’t have to be proven beyond a reasonable doubt or even a preponderance of evidence. But why not? Shouldn’t we be concerned with taking a reasonable second to consider the fact that some allegations may not be true? It’s time for the court of public opinion to act with minimal standards of proof and even a modicum of truth-seeking.

I don’t say this just for Moore’s sake. I say it even for Hollywood, for 2016 candidates Donald Trump, Ted Cruz, and Ben Carson, for Sean Hannity, for the Duke lacrosse team, the University of Virginia fraternity, and everyone else facing an allegation. We’ve seen lives and careers and campaigns destroyed by false accusations. We have an obligation to be vigilant to seek truth, regardless of the political identity of the accused or accuser.

The hallmark of the American justice system is that everyone deserves a fair shake and to defend themselves against false accusations. Our Bill of Rights enumerated this right in the context of government court action, but Americans have increasingly failed to extend this protection to the political process. It’s particularly difficult in this context because there is no bright-line criteria voters are obligated to scrutinize political candidates by, nor (absent agreements or law to the contrary) employers to determine at-will associations.

But even if our Constitution doesn’t require due process in the political courtroom, we should demand it of ourselves. Should we assess guilt based on a Washington Post article and a press conference? Our Founders were particularly concerned with baseless assertions and false accusations, and it’s obviously not just government that can impose terribly unjust consequences on individuals, absent due process and a demand to show proof. We should be just as concerned that the court of public opinion operates with zero requirement for verification and veracity by even the lowest standard of proof.

Asking for Proof Isn’t an Insult to the Accusers

Ben Shapiro recently wrote, “If you say you don’t have enough evidence to make a judgment, you are judging Moore’s accusers to be not credible,” and asserts that every person must make the call now as a yes-or-no question. I disagree this is a “binary option.” It is incredible that in a day of such politically divisive rhetoric and easy access to media (especially less than 72 days before a prominent Senate special election, when the GOP spent $30 million to fight Moore in the primaries), we aren’t placing the burden of proof on the claim or even attempting to fact-find.

We simply do not know the truth yet.

What if a claim is false? It may very well be that the claims are true. But we simply do not know the truth yet. I’ve been on both sides of the criminal courtroom as a prosecutor and defense attorney. False claims are asserted and true claims also are asserted. How do we tell the difference?

Our justice system is designed to elicit truth. The problem with our political process is that it’s designed only to elicit winners. This is precisely why due process matters and should reasonably be applied to the political process—truth doesn’t change, regardless of political partisanship.

We should all be very wary of the precedent set by the court of public opinion and tread carefully and in an abundance of wisdom, rationality, and fairness. We should care about seeking the truth for anyone facing allegations. We should care about our process for determining truth, even if we aren’t required to. It’s time to raise the bar on our political process. What if you’re accused next, McConnell?

Jenna Ellis is a constitutional law and criminal defense attorney, a law professor at Colorado Christian University, where she directs the legal-studies program, a fellow at the Centennial Institute, and the author of "The Legal Basis for a Moral Constitution."

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