Here we are again, smack in the middle of another dysfunctional—and with COVID-19 raging, I mean REALLY dysfunctional—Presidential campaign. They just aren’t fun anymore. Having been born during the advent of the Nixon-Kennedy Campaign, which is a gentler way of saying “when Eisenhower was president,” I long for the days when campaigns featured black-and-white TV debates with one ill-shaven candidate and in which results were determined by how well the Mayor of Chicago could get dead people to vote.

Maybe they never were all that much fun.

Lady_JusticeWhat I want to talk about today is something very germane—which besides being an excellent adjective was also one of The Jackson Five—to the Current Cringeworthy Campaign. That is, how do you judge an accusation? All right, let’s be more straightforward—how the heck are we supposed to judge the Rather Disturbing Accusation made by Tara Reade against Joe Biden. There, I said it.

With my ironclad (albeit rapidly rusting) rule that this blog is not overtly political, I shall not tell you where I ultimately stand on this particular accusation and accuser. (If you follow me on Twitter, it would not be hard to discover. That’s where I vent my political spleen. Which is refreshingly less painful than it sounds. Most days.) I want to discuss this more forensically as an old prosecutor, criminal law professor, and All-Around Legal Smart Aleck.

Making Sense from the Pile of Information

There are several evidence-based methods prosecutors (and defense counsel) use to assess cases based on an allegation from a complaining witness. To start, all evidence can be divided into two big categories: direct and circumstantial. Please do not fall into some Hollywood-inspired trap that these terms are equivalent to good and bad evidence. I have long said if given a choice, I’ll take a circumstantial case over one based on eyewitness testimony any day. I got lots of felony convictions on nothing but circumstantial evidence.

My_Cousin_Vinny_Courtroom_SceneDirect evidence is eyewitness testimony. Also earwitness and nosewitness, but mostly eyewitness. And with all the thousand natural shocks that flesh is heir to. Eyewitness testimony is often essential but notoriously unreliable. Some of the best illustrations of the impeachability of eyewitnesses can be found in the trial scenes from that classic legal training film, My Cousin Vinnie.

Circumstantial evidence is everything else: evidence that requires some additional inference to be probative of truth. This includes the much-admired CSI-ish forensic evidence. What!?! I hear you say? Yes, even the vaunted DNA evidence is circumstantial evidence. The defendant’s DNA found in the victim’s bedroom means that the defendant had—at some time and for some reason—been in the victim’s bedroom. If the defendant is the victim’s husband, there’s not much that can be inferred from that. If he’s a total stranger from three states over, you can infer a whole heapin’ helpin’ from it.

Here’s a classic illustration (from the days when milk was delivered to homes) of how powerful circumstantial evidence can be, lifted from a standard jury instruction for military courts-martial:

You wake up in the morning and notice that it snowed overnight. You go downstairs and open the front door. There are two fresh bottles of milk on your stoop and one set of footprints walking from and to the street in front of your house. Can you reasonably infer that the milkman has been to your house?

Of course you can, and you can surely rely upon that inference to come to a verdict beyond a reasonable doubt. I love circumstantial evidence because as the prosecutor, I get to stand in front of the jury in my closing and argue that the milkman had been there. No nervous, sweating, ill-remembering eyewitness needed!

Now, let’s consider Reade v. Biden. There are only two possible eyewitnesses—Reade and Biden. One says she was pressed up against a wall and digitally penetrated by the other, the other says she was not by him. Nobody alleges any third-party eyewitness. So the direct evidence doesn’t get us much further than Ms Reade has a right to be heard.

So what do we do now? First, prosecutors would have investigators look for circumstantial evidence from which several important inferences might be drawn. Was there an opportunity for this to have occurred? Does the alleged scene physically match or allow for the described acts to have happened?

In our case, the first answer is yes—no one denies Ms Reade was a junior staffer in Mr Biden’s senate office in Washington or that she had interaction with him. The second answer, according to former staffers and a physical inspection of the areas involved, is highly unlikely. The only part of the route between Biden’s office and the Senate gym, where Ms Reade alleged the assault occurred, her description of an “alcove,” is in one of the most highly trafficked public areas on the Senate side of the Capitol. Possible? Yes. Likely? Hardly, assuming an attacker wouldn’t want to be spotted by staff, senators, tourists, or lobbyists.

Second, I’d want to look for circumstantial evidence as to the truthfulness of either side’s allegation or denial. Start with Biden. He’s not wavered in his adamant denial this assault ever happened. Of course, a lot of guilty sexual predators have done the same, all the way to conviction. So that doesn’t give us very much help.

Reade’s story, on the other hand, has morphed substantially over time, starting out as Biden rubbing her shoulders and neck in front of other people. This has a loud clanging ring of truth to it, since a lot of people have witnessed this very behavior and Biden has apologized and said he’ll do better in the future respecting personal space and not being so touchy-feely with people. As many people have said, “He’s a hugger.”

However, it requires an inference to view this public inappropriate touching as circumstantial evidence of private sexual aggression—and that inference is quite weak here. First, all reported instances of Biden’s shoulder massaging or hair kissing were in front of other people. The inference is strong that Biden never tried to hide this behavior (which further infers that he—albeit incorrectly in hindsight—didn’t think it was inappropriate). There are zero reports from anyone other than Reade of any type of sexual aggression by Biden. Several dozen women who worked for Biden stated they never sensed anything sexual about this touching, that he never “gave off that vibe,” and he was never on the informal but well-known list of “creepy senators you don’t want to be on the elevator alone with” that female Hill staffers shared with each other back then. The strong inference from all this is that the assault as alleged would have been very inconsistent with Biden’s long record of prior behavior. And prior inconsistent acts are admissible in evidence at trial and certainly would be in these factual circumstances.

Ms Reade only recently added the alleged private incident of digital penetration, so it’s not a fresh report given close to the event. That’s a weakness in her allegation, but also not uncommon for victims of sexual assault to delay even for years reporting it, so that doesn’t mean much either way.

“Character for Truthfulness” is Definitely in Play Here

Although I’ve long hated the term, there’s a heavy element of “she said, he said” to this situation. It’s unavoidable. There’s no real de-politicized evidence that Biden has a reputation for dishonesty, beyond the usual truth-stretching we find in every American politician from George Washington onward. Ms Reade’s character for truthfulness, however, is another matter. And this is the area of inquiry by legit investigative journalists that has caused the most outrage among some people who claim such stories are a “smear campaign” against a victim.

I disagree. Miss Reade’s veracity—whether she has a provable reputation of lying or deception—is highly relevant and the only line of inquiry likely to get us closer to the truth of—ugh—“she said, he said.” She’s the accuser, after all.

One common type of evidence to assess this is prior consistent statements made by the accuser over time. There is some evidence of this, albeit some of it vague. Both a friend and her brother at first didn’t confirm the alleged assault when interviewed by journalists, only confirming she told them Biden had rubbed her neck. They changed their stories soon after to confirm that Ms Reade did tell them about it. That short gap (a few days) would make a prosecutor very nervous—plenty of time for someone to “remind” or sway a witness into an “Oh, I forgot to mention…” later statement. Her mother seems to have called Larry King’s show soon after Ms Reade was fired from her job in Washington, asking for advice for her daughter who had “had a problem with a senator.”

There’s a third friend who says Reade told her some years ago of the assault, so that’s something. The weakness with this is, however, that all these people are only reporting what Ms Reade told them. Good to refute claims of recent fabrication by Ms Reade, but these statements don’t help much with the problem of actual fabrication, as Biden claims. So kind of a wash.

One document that might support Ms Reade’s allegation would be a complaint she claims she filed with the Senate personnel office near the time of the alleged assault and before she was fired. (She claims part of the reason she was fired was in retaliation for filing this report—none of her staff supervisors recall this report.) That document hasn’t been found in the records’ repositories for these types of documents. Biden claims there are no documents of this type in his Senate papers that are under seal at the University of Delaware. Ms Reade’s story about this complaint has also morphed over time; she now admits that if found it wouldn’t contain any information on an assault, only general sexual harassment within Biden’s Senate staff. The inference from this missing report weighs for Biden and against his accuser.

Of much greater significance are statements—many corroborated by documents, emails, and/or texts—that establish a pattern of untruthfulness by Ms Reade over the last 25 years. The grounds she has long asserted for her dismissal from Biden’s staff appear to be fabricated or imagined. She has long claimed she was fired in retaliation for filing a complaint for sexual harassment after she refused to serve drinks at a fundraiser in DC because Biden allegedly “liked her legs.” The preponderant weight of third-party evidence cuts against this.

First, six dozen former staff members were adamant that there was a tightly enforced bright-line ethical rule that no Senate staff ever worked or even attended campaign fundraisers and that Biden scrupulously prohibited women staffers in his office or for the committees he chaired to ever serve coffee, drinks, or food. Former staff said Biden was so adamant about not having his women staffers seen performing these menial tasks that he required the junior male staffers to perform them.

Second, a staffer who sat at the desk next to Ms Reade the nine months she was employed by Biden clearly recalled she was fired because of poor job performance. He recalled the exact details because he was the one who’d informed the deputy chief of staff she was failing at her assigned task of routing constituent communications.

Third, several people who had put her up or rented her rooms over the past decade paint a picture of Ms Reade’s character and behavior that can fairly be characterized as petty grifting. She told all of them a hard-luck story of “needing to get my act together” which often included an exaggerated and embellished account of her time on Biden’s staff as proof she could do serious work. (This story often included effusive praise of Biden.) A lot of sympathetic people believed her, lent her money, reduced her rent, allowed her to skip monthly payments, even let her charge veterinarian fees to their account for her horse. All these people said she ultimately skipped out owing them loans, rent, or other payments (like a $1,400 vet bill). This type of evidence is probative and likely admissible in two ways—as evidence supporting these character witnesses’ opinion as to her reputation for untruthfulness and as proof of her engaging in crimen falsi offenses—crimes that involve lying.

There’s other “meh” evidence that’s had plenty of fevered play in the media and SM but doesn’t weigh very heavily. Ms Reade had a peculiar, very public, and quasi-sexual attachment to… Vladimir Putin (fixation with pubic men?). She was a Bernie Sanders supporter (political motive to fabricate?). These are the type of inadmissible facts that, as a prosecutor, would at best make me feel a little better about rejecting an accusation, but they don’t matter in any probative sense. But they sure are sensational <sigh>.

So there you have a prosecutor’s-eye-view of how to analyze an allegation like that in the Reade-Biden situation. It’s now up to you to decide whether or not the milkman has been to the house.

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