Wednesday, October 03, 2007

Smearing a Witness versus Impeaching a Witness

The by-line to Prof. Anita Hill's NYTimes Op-Ed piece proclaims, "The Smear This Time."

Assume -- for the sake of argument -- that Prof. Anita Hill lied. Question 1: Granting that assumption, did Prof. Hill smear Justice Clarence Thomas by charging him with sexual misconduct? Question 2: Granting the same assumption, by mentioning matters that raise questions about Prof. Hill's credibility did Justice Thomas smear Prof. Hill?

In a typical trial the trier of fact is not afforded the privilege of being able to tell -- without having any evidence -- who is telling the truth and who isn't. Sometimes one way of figuring out which story is true and which story is false is by figuring out who is lying and who isn't. Sometimes one can better figure out if a witness is lying is by having evidence about what might lead a person to lie. Justice Thomas suggested some matters that might have led Prof. Hill to lie. It is of course possible that Justice Thomas lied. But it is also possible he didn't.

1 comment:

Unknown said...

Postscript:

My own guess is that Prof. Anita Hill made up all or most of her story about Clarence Thomas. She was stuck in what she probably viewed as a dead end job. She very probably suspected that she would become famous if she charged Clarence Thomas with sexual misconduct and that good things would come her way if she became famous. My guess is that that after some waffling (i.e., my guess is that for a while she wasn't sure whether she should go public with her false or largely-false charges), she decided to take a chance.

If a chance at fame is what motivated Prof. Hill to make her charges against Thomas public, it may well be that she now thinks that the chance that she took was worth taking. By all published accounts, Prof. Hill has done well both financially and professionally. Perhaps she would have done as well financially no matter what. But it is unlikely that she would have done nearly as well professionally if she had not attacked Justice Clarence Thomas. (Is it likely that she would have gotten the sorts of positions she has held at Brandeis and Wellesley on the strength of her scholarship alone? I have not studied Prof. Hill's writings but my sense is that the answer to my own question is "no.")

There may be a benign explanation for Prof. Hill's charges and Justice Thomas' impassioned denials. Perhaps Thomas engaged in what he regarded as harmless sexual banter with Hill; perhaps his banter was in fact non-odious and inoffensive sexual banter; perhaps Hill herself did not view his sexual banter as offensive or unwelcome; but, with the passage of time and degradation and reconstruction of memory, perhaps Hill genuinely came to believe that Thomas had said things he did not say and acted in a way he did not act. In short, there may be a grain of truth in both of their stories. However, I am still inclined to believe that the advantages that Hill must have realized would accrue to her by charging Thomas with sexual misconduct led her to decide to make up her story or to embellish and distort an innocuous incident.

It is sometimes said that in a situation such as this -- in a "he said, she said" situation -- only the two participants know what actually happened. However, as this imbroglio suggests, in many instances even the participants no longer know or accurately recall what actually happened. Indeed, even at the time that a "she said, he said" incident occurred the participants themselves -- given their different perspectives and attitudes -- the participants themselves may have never known what really, actually, truly happened. (It is, however, reasonably plain that the horror of many prominent people about Thomas' alleged sexual misconduct was, at the time, little more than mock horror.)