Friday, November 18, 2011

Convicted in the court of public opinion

I recently saw Herman Cain complain that he’d been “convicted in the court of public opinion.” Of course, that’s a popular cliché. I’ll just make a few observations:

i) Oftentimes there’s more than one court of public opinion. There’s a court that convicts the accused, but another court that acquits the accused.

ii) Apropos (i), Cain has no doubt been damaged by public allegations of sexual misconduct. However, that cuts both ways. He has public detractors, but he also has public supporters. One tries to pull him down while the other tries to prop him up. So his complaint is rather one-sided.

iii) The court of public opinion is unregulated and often unfair. It has no consistent standards.

However, the court of public opinion can sometimes be superior to the court of law. Judges routinely treat certain types of probative evidence as inadmissible based on legal technicalities. A voluntary confession will be tossed because the suspect wasn’t Mirandized. Background evidence will be peremptorily excluded because it’s “prejudicial.” Incriminating evidence will be excluded because the police didn’t have a search warrant.

Put another way, judges often apply the genetic fallacy. It doesn’t matter if the evidence is probative, but how it was obtained.

As a result, juries often have a very blinkered, very skewed impression of the accused. They only see and hear what the judge allows them to see and hear, which is artificially truncated. By contrast, those who bother to follow the story in the news media may have a much broader database from which to evaluate the allegations.

As a result, there’s nothing inherently or antecedently suspect about conviction in the court of public opinion. Sometimes that verdict is more accurate than a court of law. 



    Ann Coulter points out some interesting things about David Axelrod, one of President Obama's main advisors and the Chicago mob political machine ( including Daily, Rahm Immanuel - ? ) - it sure looks like they made it up against Cain and they did enough damage in the court of public opinion, for the public to not care if its really true or not.

    I don't know for sure; but it sure looks like that political machine made up all the stuff about Cain.

  2. Ken,

    This began long before David Axelrod and his associates would have had a motive to get involved. Two women reached settlements with the National Restaurant Association in the 1990s regarding allegations of sexual harassment against Cain. Sharon Bialek claims to have spoken about Cain's harassment of her in the 1990s, and two people have corroborated her account in sworn affidavits. I know of two women who have accused Cain of harassment without being publicly named. Roger Simon of PJ Media, a conservative web site, knows the name of one of those women, has looked into her background, and has spoken to other individuals who knew her at the time of the alleged harassment. In an interview with Hugh Hewitt, I think the phrase Simon used to describe the woman was "extremely credible". Chris Wilson, a Republican pollster who has no relevant affiliation with Axelrod that I'm aware of, claims to have witnessed Cain's harassment of women on multiple occasions. These people I've just referred to have been corroborated on various points by other sources. I see no reason to think that Axelrod and his associates are behind any of these witnesses in any relevant way, much less that they're behind all of them. Even if they got one or two of the women to come forward with their story, for example, that fact by itself wouldn't give us sufficient reason to dismiss what those women are claiming.

    Then we have Cain's self-inflicted wounds, which can't be blamed on Axelrod or other people associated with him. Cain seems to have been dishonest in how he initially handled the story. Despite all of the complaints about credibility problems with Cain's accusers, I'm not aware of any reason to think that any of them have a credibility problem as bad as Cain's. As far as I know, none of them have yet been caught in the sort of apparent dishonesty that Cain has engaged in. And he doesn't seem to be making much of an effort to support his claims. Whatever you think of Sharon Bialek, at least she got two witnesses to support a central aspect of her allegation with sworn affidavits. Meanwhile, Cain claims to be willing to take a lie detector test, but hasn't taken one. (I'm skeptical of lie detector tests. I think they can only give us partial information. They aren't sufficient to tell us whether a person has lied. But if Cain is going to volunteer to take a lie detector test, then why doesn't he go ahead and take one on his own initiative? His later excuse, to the effect that he'd take a lie detector test if his accusers would also, is evasive. As far as I know, the accusers haven't said that they believe in lie detector tests. They didn't volunteer to take one. Cain did.) Why doesn't Cain get somebody from the National Restaurant Association to back up his assessment of the settlements he reached with two women? For example, he claims that his counsel told him that the most serious allegation Karen Kraushaar brought against him was that he held his hand up to his chin and commented on her height. Multiple people who claim to have seen the relevant documents have said that Cain is wrong. Kraushaar has said that the incident wasn't part of her complaint, and she denies that she would have filed a complaint over something so innocuous. So, why doesn't Cain get his counsel or some other relevant individual from the National Restaurant Association to come forward and corroborate his claim? There are things Cain apparently could be doing to support his side of the controversy, if he's telling the truth, and he isn't doing those things. His dishonesty and his failure to offer support for his claims where he ought to be able to do so can't be blamed on Axelrod and his associates.

  3. Thanks for the details; wow.

  4. still the Sharon Bialek accusation does not seem very credible.

    And PJTV (Pejamas Media - I think that is the same group you mentioned) also pointed out that the suits that were settled in the 90s were done so that they didn't have to spend lots of time and more money in the courts defending themselves. It still seems to be "she said, he said".

  5. Ken,

    As far as the settlements are concerned, see here. I agree that the settlement amounts don't prove that the charges against Cain are credible. But they also don't prove that the charges aren't credible. We have to make a judgment on other grounds. As the article I just linked explains, a woman who's actually experienced sexual harassment might settle for a relatively small amount of money if she thinks asking for more would be inappropriate, if she thinks she doesn't have enough evidence to prove what happened, or if she wants to put the matter behind her and move on. Here's what Karen Kraushaar has said:

    "'When you are being sexually harassed in the workplace, you are extremely vulnerable,' she said. 'You do whatever you can to quickly get yourself into a job someplace safe, and that is what I thought I had achieved when I left.'" (source)

    The original Politico article on the sexual harassment charges reported:

    "But one source closely familiar with Cain’s tenure in Washington confirmed that the claims related to allegations of sexual harassment — behavior that disturbed members of the board who became aware of it, as well as the source, who otherwise liked Cain....The former board member recalled learning of the woman’s departure at a 1999 association board meeting and trade expo in Chicago. 'She was offered a financial package to leave the association, and she did,' said the former board member. 'What I took offense at was that it was clear that rather than deal with the issue, there was an effort to hush it up. She was offered a way out to keep quiet.'"

    Notice that this former board member Politico contacted is treating the sexual harassment allegations as if they're significant, not just something like holding your hand up to your chin and commenting on a woman's height. And notice that the National Restaurant Association's handling of the matter is referred to as if it was inappropriate. This board member doesn't seem to think it was the sort of frivolous matter Cain makes it out to be.

    (continued below)

  6. (continued from above)

    I don't know why you think "the Sharon Bialek accusation does not seem very credible". The most significant claims she's made are corroborated by two other people in sworn affidavits. There's not much that can be done to establish what happened in the car, since Bialek and Cain were the only ones there and the events weren't recorded by a camera or anything like that. We do have evidence, though, that Bialek met Cain and that she was accusing him of harassment in the 1990s. We don't just have her word on the matter. Two other people are corroborating her.

    But let's assume, for the sake of argument, that Kraushaar is lying. Also assume that the other woman who reached a settlement is lying. And assume that Bialek is lying. What about the other witnesses? To believe Cain, you not only have to dismiss a large number of witnesses who are contradicting him, but you also have to propose multiple motives for the alleged dishonesty of those witnesses. One was motivated by money, another was motivated by politics, etc. Why are we supposed to believe Cain while proposing multiple, independent theories to dismiss multiple, independent witnesses who are contradicting Cain? It's not "she said, he said", as you put it. It's "they said, he said". And the "they" are corroborated by other witnesses who have confirmed that the women seemed to be upset at the time of the alleged harassment, confirmed related details that the accusers have asserted and that Cain has denied, etc. Then there's the fact that Cain has credibility problems on these matters that are worse than any problems his accusers have. See my comments on that subject in my previous post.

  7. My understanding of the non-Bialek complaints is that they're all fairly amporphous insensitivity type stuff, like saying a woman is about the same height of his wife, hardly an unambiguous sexual advance. If the Bialek stuff is suspect and the others not, I'm not sure that says much about Cain except that he tends to offend people when he might not intend to. Since we know that about him from his public statements, we learn a whole lot of zero unless there's substantive information that I'm unaware of.

    On the main content of this post, I think it's worth pointing out that the court of public opinion can in certain cases get to the truth when the relevant information is hidden from a jury, but the court of public opinion can also rush to judgment based on no information but pure rumor and innuendo, and it's the latter complaint that Cain was obviously making. So the fact that the court of opinion can sometimes more reliably get to the right result doesn't say much about whether his complaint is legitimate. He wasn't saying that the court of public opinion is always unreliable or less reliable than a court of law. He was saying that public opinion can rush to judgment before any information at all is even clear, and this seems to be such a case. That's a very different claim than the one this post seems to me to be directed against.

  8. I should also say that Ann Althouse and Glenn Loury did a Bloggingheads episode that dealt with this issue, and they had some very interesting things to say. It was a full week ago, so it might not have all the information, but I'd like to see some of their points responded to by those defending the veracity of the accusers.

  9. Jeremy Pierce,

    The Bloggingheads segment you've linked is misleading, and I've addressed the points made there in previous posts. See the comments section of the threads here and here and my posts earlier in this thread, for example.

    You've mentioned the incident in which Cain held his hand to his chin and commented on Karen Kraushaar's height. In the Bloggingheads segment you linked, Ann Althouse singles out that incident as well. But Kraushaar has denied that the incident was even part of her complaint. Cain claims that his counsel told him that the incident was what Kraushaar most objected to, but she claims that it wasn't even part of her complaint and that she never would have filed a complaint over something so innocuous. Kraushaar's lawyer, who has access to some of the relevant documentation, has also denied Cain's assertion. The original Politico story reported:

    "The sources — including the recollections of close associates and other documentation — describe episodes that left the women upset and offended. These incidents include conversations allegedly filled with innuendo or personal questions of a sexually suggestive nature, taking place at hotels during conferences, at other officially sanctioned restaurant association events and at the association’s offices. There were also descriptions of physical gestures that were not overtly sexual but that made women who experienced or witnessed them uncomfortable and that they regarded as improper in a professional relationship."

    It appears, then, that Cain was accused of more than things like commenting on a woman's height. The height incident apparently wasn't even part of the complaint.

    (continued below)

  10. (continued from above)

    NPR reported:

    "People who had direct knowledge of the complaints at the time have told NPR that they detail persistent harassment by Cain. The harassment has been described to NPR as frequent, usually but not exclusively verbal, and involving sexually graphic comments and approaches when the women were alone with him in work situations. Those same sources also say that the two women independently pursued their complaints, unaware of the other's claim, and that at least one of the women reported her allegations to a supervisor, who passed it on to the organization's human resources department."

    From another story:

    "According to The Times's Jim Rutenberg and Jeff Zeleny, NRA staffers were out drinking -- this appears to be the incident former NRA pollster and current Rick Perry staffer Chris Wilson referred to on a Oklahoma radio station -- when Cain's 'flirty banter with the woman crossed over into propositions that she leave with him, these people said, speaking in separate interviews and on the condition of anonymity.' The woman said no, but Cain kept asking. That matches with what Wilson has said on the record, when he described on Wednesday an incident at a a restaurant in northern Virginia involving a junior staffer. Politico's Kenneth P. Vogel and Maggie Haberman, and Alexander Burns report that the woman felt Cain's proposition 'was overtly sexual in nature and that 'she perceived that her job was at risk if she didn't do it.'' The woman 'was livid and lodged a verbal complaint with an NRA board member that same night.' From both reports, the National Restaurant Association seems to have taken the complaint quite seriously, contrary to Cain's claims that the general counsel found them to be 'baseless.' Politico says at least one other board member and general counsel Peter Kilgore were alerted to the incident, and there were 'urgent discussions of the woman’s accusations at top levels of the National Restaurant Association within hours.'"

    The notion that Cain was only being accused of things like commenting on a woman's height is false.

    And there are more implications for Cain in this story than merely whether he sexually harassed women. His honesty is also in question, for example, for reasons I've explained in this thread and the others linked above.

  11. Jason,
    thanks for your diligence in all this. Overall, it looks really sad and bad for Cain, as he comes from a conservative, Bible-believing church background; and that is what makes all this doubly sad for the conservative social issues part of the Republican party.

    With all his other mistakes, especially on foreign policy, there is little chance now of him winning.

    He looked really good and promising at first.

    Oh well. Good thing God is in control.