(Previous posts on this topic here and here).
The Oregonian reports that Judge Peter Ackerman is feeling a bit defensive:
But Judge Peter Ackerman took the opportunity to defend his conviction of the woman and criticize media attention surrounding the case.
“I’m a little disgusted by the coverage of this case,” Ackerman said during the hearing. “The facts were what the facts were.”
When Ackerman convicted the woman Dec. 2, he said he relied in part on the testimony of a Beaverton police detective and friends of the girl, who said she did not appear to be traumatized in the days after the incident.
Advocates for rape victims criticized that reasoning. But Ackerman said Monday that the woman’s lawyer should have offered expert testimony to counter prosecution witnesses.
In retrospect, yes, it would have been good if they offered expert testimony (and I bet they will at the new trial). Nonetheless, the lack of expert testimony doesn’t rescue Ackerman’s ruling from being bad logic. The idea that there is a “correct” way that real rape victims must act, and that failure to act that way is proof of a malicioius false accusation, does not pass the smell test.
Commenting on the expert witness argument, Pinko Feminist Hellcat writes:
It’s good that Ackerman is feeling the heat. Hopefully, he won’t be so quick to rely on stereotypes and false assumptions the next time he rules in a rape-related case – and, even more importantly, let’s hope other judges have heard of the controversy and made a mental note to check unfair assumptions about rape vicitms at the door. If rulings like his were ever to become a norm, it would be stupid for any rape victim to ever come forward to the police.
Be sure to read this post at Preemptive Karma – the blogger actually attended the sentencing hearing. (No sentence will be carried out until after the appeal, however). And this post at Pandagon. And this post at The Balancing Act. Quote of the day, from Balancing Act:
Moderation Note: This thread is not intended for discussion of anti-feminist theories that false rape accusations are really very common (use this thread for that), or male rape victims, or the trauma of men who are falsely accused, and similar topics. Let’s try not derailing this one.
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Well for heaven’s sake. Has she been sentenced or not? I’ve been following this and now I’m totally confused.
I believe she was sentenced to community service and a fine. That’ll teach her to not conform to an asshole judge’s sexist stereotypes.
I suspect that one of the things behind this, although by no means the only thing, is the attitude that criminal cases are primarily contests between the two lawyers, and that the judge’s job is to choose who made the better case, and reward them with a verdict accordingly.
The problem is that it leads to absolute travesties like this, where, because the prosecution made a better case, the defendant is convicted. Never fucking mind that the case was actually crazy. No, no, no, it’s all about the argumentation and not at all about the justice. Actual guilt or innocence takes a backseat to debate-club awards.
You see the same thing in certain Death Penalty cases where you’ll have the defendant convicted despite his lawyer falling asleep during the trial . . . after all, what sort of argument could he have presented while asleep? Of course his client lost.
—Myca
Well, I’m hoping this moron judge gets the picture.
I think Myca nails it – and it’s one of my chief complaints about the American criminal justice system. What started out as a good thing – everybody is entitled to a lawyer – has become too much a system in which issues of morality, common-sense and fairness are lost in a contest between lawyers and hair-splitting and procedural crap, any of which can go for or against a defendant without really having anything to do with the substance of the case.
What’s missing from Judge Ackerman’s commentary about the media coverage are some specifics. What aspects of the coverage disgusted you, your honor,?
I’m waiting to see more actual details on the case.
I have yet to see any constructive opinions on how the case might have been properly
handled.
I have to consider the (as yet unknown) reconciliation of defendants inconsistancies
I have to consider the (as yet unknown) reconciliation of complaintant inconsistancies
I consider the hearsay evedence I’ve seen in papers (no transcript yet)
I consider the source of armchair opinions.
I consider the standard reputation derived from a mere “accused, but found not guilty for lack of evidence” unless a false accusation finding was made.
I consider a judges reputation on “false accusation, but no action” finding.
This is, of course, all based on court of public opinion. I was not present at the event, for questiioning, or in the court. Does this judge have a history of being overturned or disciplined? Does the proscecutor have a history of flamboyant “bullshit” cases? Do the police involved have a history of dismissing rape allegations?
So much has been said with so little being known. I see many folk charging “this is wrong”without jumping up to legally challange this judge or his finding. Is there room for doubt in chastising this judge?
I, like every other person on the planet, will have to wait and see what happens at appeal.
I find it a bit gratuitious mentioning delay of sentance until after appeal, I thought this was almost automatic when appeal was filed automaticly. If this is NOT the case, then why the delay in sentance?
I know, questions questions questions!
I can’t help but wonder – is it possible that the prosecution screwed up the case, and so the state is going after the complaintant as a way to cover its own butt? That is, is it possible that the prosecutor, the police, or someone else messed up in some way that would prevent the original ape case from being prosecuted, and now they are trying to make the complaintant out to be a liar in order to excuse their inability to prosecute the case?
An ignorant cop, a catty friend, and her dopehead, child-molester dating mother aren’t experts on rape trauma
In fact, there is no requirement that an expert be an actual, certified “expert” in the academic sense of the term.
“What is your name?”
“Officer Obie.”
“What is your job, Officer Obie?”
“I’m a cop.”
“In your job as a cop, have you responded to rape calls?”
“Yes.”
“How many?”
“I don’t know. ”
“More than 100?”
” Over 100.”
“More than 1,000?”
“Probably not.”
“In the between 100 and 1,000 rape calls that you have responded to as a cop, have you formed a conclusion to a reasonable degree of certainty as to how rape victims normally act?”
“Yes, I have.”
“I hereby offer Officer Obie as an expert on the issue of how rape victims usually act.”
In general, that’s enough. It’s a common misconception that an expert witness has to be a “good” expert. All it has to be is someone with more experience than an average juror or average judge.
Um, Amp, why has the color scheme gone all strange? Is anyone else seeing the entire left side of the screen red (like block quotes usually are) or is it just me? It’s making things really hard to read.
Just an FYI.
And if I were on that jury, Richard, I would have laughed that ‘expert’ out of the court room. Certainly, I wouldn’t use his testimony about her supposed lack of trauma as a basis to convict someone of filing a false police report.
It’s like when I see a news story about a murder case–the accused is under suspicion because he’s not ‘acting’ the way a bereaved spouse/son/father/whatever is acting. So? Grief affects people in different ways. So does trauma. Everyone’s an ‘expert’ in this because they’re really sure there’s a certain way for someone to act.
Kevin Hayden, who attended the trial, said the cop in question cited the woman’s lack of overshowering as indicative of her guilt–after all, it’s commonly known that rape survivors shower for hours after they’re attacked. Except that’s not true for everyone (and we’re told to not shower after, the better to gather evidence for a rape kit). I know several women who’ve been raped–only one showered after. I know of women who were too numb and in shock to do anything besides crawl into bed after. Some women will act like nothing happened, will “seem” okay, only to have PTSD a couple of years later.
At the end of the day, the case was weak. Amp mentioned in an earlier post that Mark Kleinman brought up another problem this case could create–DA’s being under undue pressure to bring weak cases to trial in order to protect the accusers from prosecution (the charges were brought by the city attorneys, not by the DA’s office). A DA may believe the woman, but may not be able to bring a case to trial if the evidence is weak. That’s as it should be–you want to make sure you have a strong case. And frankly, it has implications for other crimes–I’ll bet you’d hear a lot of yelping if these charges were brought against someone who claimed they were mugged at knifepoint, but there wasn’t enough evidence to bring the case to trial.
There was zero about this case that was strong. The judge has said, repeatedly, that he convicted the woman in question because she didn’t act traumatized. That’s not proof. There was nothing but reasonable doubt WRT to this woman’s guilt. There were no witnesses saying that she told them she lied. There was abseloutely no evidence that this woman was guilty of the charges brought against her–a cop’s insistence that she didn’t “act” the way rape survivors “act” doesn’t provide the proof needed for a conviction.
It was probably a result of my playing around with the template (to add new links at the top of the sidebar).
Is it better now?
If not, then can you tell me what browser and operating system you’re using?
Thanks.
Amp:
Yes, much better. Thank you!
And if I were on that jury, Richard, I would have laughed that ‘expert’ out of the court room.
That’s because you, unlike most jurors (and most municipal judges, who often don’t even have to be lawyers), know stuff about rape. That’s how it’s supposed to be, really. Both sides present their evidence, and the fact finder supposed to weight it, together with your common sense, and come up with an answer.
In reality, of course, jurors mix up their common sense with their unfounded stereotypes, or give equal weight to idiot experts, or — when there is only one expert — give disproportionate weight to that one. I don’t think this is specific to beliefs about rape, though. It’s inherent in a system in having the case decided by a judge or jury rather than, say, a panel of phychiatrists with expertise in post-rape trauma for this case, and a panel of doctors for the Vioxx cases.
You’re criticizing the fact-finder for not knowing what you know. But I think the judge is right that the fault lies on the defense for not TELLING HIM what he didn’t know, especially when other people were telling him contrary stuff.
Imagine you’re a juror where the accused in a case where the defendant is a Hmong tribesman. A witness is called who says, “I live among the Hmong and am an expert on the Hmong culture. The Hmong only hunt with wooden spears, and the victim was killed with a metal spear.” You are probably going to give that some weight that in chosing to acquit, but what will you think the next week when you go to hmong.blogspot.com and find out that it’s “common knowledge” that some Hmong hunt with metal spears. As a juror, you’d think, “Well, I blame the prosecutor for not telling me that, and letting the defense make that statement unchallenged.”
A jury of people (or a municipal judge) who haven’t been raped are probably as unlikely to know how rape victims “usually” act and you are to know how Hmong tribesmen “usually” hunt.
Another (related) problem is that jurors who know a rape victim will listen to how rape victims “usually” act, and latch onto one or two of them that match how the rape victim they knew acted — if she was really depressed, or ‘overshowered’, or whatever — and they will forget or discount the characteristics that don’t match their experience.
What you don’t realize is that you actually ARE an expert in how rape victims usually act, since you’ve likely read studies or assisted rape victims, or however you came to know what you know. You KNOW which experts to laugh out of a courtroom. Everyone else just have to do the best with what they’ve got.
Right, right, right, right.
It would be one thing if there was a good case with a conclusion I disagreed with. I could still believe that an injustice had been done, but I would at least understand how the judge arrived at his decision. What really drives me crazy about this case is that, goddammit, even if the evidence was ten times as solid as we’ve heard, it would still leave enough reasonable doubt left over to handily conceal Bigfoot, the Loch Ness Monster, and Elvis.
This just doesn’t seem like a case that ‘could have gone either way.’ This conviction is one of the most bogus I’ve ever seen . . . and coming from a family of defense lawyers, I’ve seen a lot.
—Myca
“But I think the judge is right that the fault lies on the defense for not TELLING HIM what he didn’t know, especially when other people were telling him contrary stuff.”
I think it’s absolutely silly for a judge that deals with criminal law not to know how trauma works and what normal behavior for traumatized people encompasses and what it doesn’t. (I don’t think there’s anything specific to rape victims here.) For him not to know this is incompetence. For a jury case, I would be more sympathetic to your point.
Why are we hoping this judge sees the light eventually?
Why are we not mobilizing to impeach this judge now, or at the very least building a huge coalition to run his sorry misogynist ass out in the next election?
This goes beyond stupidity and ignorance. A criminal court judge, of all people, should not be making assignations of guilt on the basis of crude and offensive stereotypes. Would we stand still if he found a black man guilty because he “acted shiftless”? Would we let him convict someone of child molesting simply because he was a Catholic priest? But when he says that a woman who, some idiot police officer claimed, doesn’t conform to his stereotype of helplessness and virginal outrage, for that reason couldn’t have been raped – and, worse, had victimized her attackers by seeking justice – we spend weeks wondering if he had “proof beyond a reasonable doubt” or might someday learn to see women more realistically.
Fuck all that. Drive a stake through his worthless heart, throw him on the dungheap where he belongs, and forget him forever.
And if I were on that jury, Richard, I would have laughed that ‘expert’ out of the court room.
I’ve found the coverage of this case to be very difficult to follow (was there some kind of gag order?), but it’s my understanding that there wasn’t a jury in this case because the charge was a violation, not a crime.
So the judge would have been the sole fact-finder, and probably had to write some kind of ruling. Does anyone know if that’s available?
Considering that this county apparently doesn’t even bother to keep a record of legal proceedings, I wouldn’t be surprised if the answer was no.
Christ, come to think of it, I wouldn’t be surprised if they still ordered stonings for witchcraft and blasphemy.
—Myca
Ampersand:
I dunno. Did she? If she didn’t attend the trial, then she surely did miss everything.
Perhaps we shouldn’t be so quick to rely upon a newspaper report as if it were an complete and impartial description of everything that was before the judge when he made his ruling.
That’s the point I was making, Daran. Even if we allow the judge as much leeway as possible. The case still makes no sense.
Having listened to 1) The newspaper reports, 2) The judge’s statement as to why he made the decision he made, 3) The statements of the prosecution 4) The statements of the defense, and, most recently, 5) The new statements of the judge in which he tried to justify his decision, I still this this is bullshit.
What I’m saying is that there’s very little disagreement as to the facts. It would be one thing if the judge and the prosecution said “there’s a witness that saw her elsewhere at the alleged time of the crime” and the defense disagreed . . . then I could even see how they got where they got. There is no such disagreement.
We’re saying that the judge based his verdict on the emotional condition of the defendant because that’s what he says. Based on that, I can’t see any conceivable way that this case didn’t meet the ‘reasonable doubt’ standard.
Even if we grant the judge every possible benefit of the doubt, this is still wrong . . . but, check it out, we’re not supposed to give his judgement the benefit of the doubt. The defendant gets the benefit of the doubt. The defendant is presumed innocent.
—Myca
The Judge’s written ruling (if it exists) has not been made available, as far as I can tell. (I spoke to the author of the Oregonian article, and he said that no written ruling was available.)
Daran, the Judge and prosecutor – who are, I believe, elected officials – have utterly failed to produce any case in their own defense. It’s hard for me to believe that, if they had a reasonale defense, they wouldn’t have made it public by now.
All criticism of public officials is, by neccesity, really a criticism of their actions as reported in the media (in this case, two newspaper reports plus two eyewitness bloggers). Saying that we ought not criticize public officials based on media accounts is, in effect, saying that we ought not criticize public officials.
On the other hand, I agree that the media coverage here has been scanty. It’s possible that future developments will change my mind. However, given our current state of knowlege, I think the criticism is justified.
That’s a big problem–the judge didn’t release his decision in writing. Maybe that’s not the way it’s done in that court, but it’s pretty fucked up.
Zuzu, the verdict was decided by a judge, not a jury, which is odd, I know.
Have you tried the city Records Department? (I say “you” because it’s a lot more practical for you to do it than for someone living in Scotland.)
I’m not saying that you shouldn’t criticise. I’m saying that the default assumption – that the conviction was based solely upon the lack of traumatised behaviour – doesn’t seem to be supported by the information we have available. The Newpaper quoted the judge as saying that he “relied” upon it. That doesn’t mean that he gave it great weight. It means that whatever weight he did give it, when added to any other evidence there may have been against her was sufficient to tip the balance.
We don’t know what other evidence there was against her. We don’t know the details of the alledgedly false report she made, or what the testimony of those she accused was, or whether she gave testimony herself, and if so, what that testimony was. We also don’t know if there was any other evidence against her, and if so, what it was. Finally we don’t know whether the prosecution called any expert witnesseses and if they did, what their evidence was.
We have no basis for concluding that the case against her was as flimsy as people are concluding it was.
You’ll have to excuse this ignorant Brit, but your system of elected judges and prosecutors seems mighty strange to me. Sounds likely to turn justice into a popularity contest, but who am I to judge.
I suppose the judge in this case could turn over all the evidence he considered to the media. Someone would probably then be able to figure who she was (I’m surprised that this hasn’t already happened.) Then the antifeminist blogosphere could have its Faber-style cluster-fuck, and everybody who is now criticising the judge for his failure to defend himself would be criticising him for defending himself. Damned if he does, and damned if he doesn’t.
There is a difference between criticising public officials on the basis of information in the media, and criticising them on the basis of a lack of information in the media.
It is a Court of no Record. That doesn’t, however, mean that it doesn’t keep records. It means that it lies outside the formal system of State courts. I suspect that it does, in fact, keep records, but I haven’t been able to find out for certain. It has a website, but it’s useless.
Normal court records are public (unless sealed), but not publicised. You can go and get them, but they are not pushed onto the media.
Again, it’s a court of no record – a toy court. It’s been said that on appeal she will be entitled to a new trial de nova (i.e. from scratch) in a State court (of record). I haven’t been able to verify that this is the case with Beaverton. You have a legal right to be tried in a court of record, but she may have waived that. However it does appear that the appeal from many courts of no record result in new trials, and that is probably the case here.
It’s crazy, I agree. One really stupid thing about this is that a new trial from scratch means that there is no appellate review of the original trial.
This case from Beaverton does not surprise me. Beaverton is a pithole suburb of Portland with lots of traffic, lots of shopping, and no community spirit. I lived there for ten years and know whereof I speak.
The cluenessness of the folks there is remarkable. I cite the all-girl high school chorus, called the Beavertones, and the big yearly food fair is named–get ready for this–a Taste of Beaverton. I’m so glad I got away. I wish this poor rape victim had been so lucky.