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Outside the legal system, 'due process' means nothing

President Trump's predictable response to the domestic abuse accusations against ...

Posted: Feb 13, 2018 9:59 AM
Updated: Feb 13, 2018 9:59 AM

President Trump's predictable response to the domestic abuse accusations against Rob Porter and David Sorensen -- a tweet that read in part, "is there no such thing any longer as Due Process?" - shows his fundamental misunderstanding of this vital element of our legal system. And his tone-deaf refusal to acknowledge the victims of the alleged abuse all but confirms that his defense, at its core, is not of Porter or Sorensen at all, but rather of himself.

President Trump is wrong. People's lives are not being "shattered and destroyed" by a "mere allegation" as he would have us believe.

It is true, however, that we are at a cultural inflection point in which we are choosing to believe the victims more than ever. Yet as a criminal defense attorney, I see firsthand how due process occupies a prominent -- if not central - place in our justice system every day. And I can attest to the fact that the accused's due process rights are alive and well in our justice system. They are thriving, in fact.

In this aftermath of #MeToo, it is critically important to make the distinction between courts of law and courts of public opinion. Trump's conflation of the two by way of a disingenuous appeal to "Due Process" is a commonly used, but ultimately dangerous argument, because it damages our collective understanding of the issues, both legal and otherwise.

Due process, as set forth in the Fifth and 14th Amendments to the United States Constitution, affords citizens legal procedural safeguards against governmental deprivation of "life, liberty, or property." That's it. It applies to government action, not the news media, or (in the case of say, Roy Moore) to political races or social media.

The obvious point here is that Rob Porter isn't going to jail and he certainly hasn't been sentenced to death; the man lost his job at the White House and he's likely got a lot of explaining to do to his girlfriend, Hope Hicks, but that's about the extent of his deprivations. And President Trump's tweet does more harm than good by implying that "Due Process" entitles people to keep their jobs or avoid being ostracized. That's just not the case.

If Trump is truly concerned about the erosion of due process, he need look no further than the case of Bill Cosby. The disgraced comic is the veritable poster child for due process. As I told HLN's Erica Hill during Cosby's June 2017 criminal trial for the aggravated indecent assault of Andrea Constand, the case was an easy one for an acquittal, precisely because the due process safeguards embedded in the law were on Cosby's side. Prosecutors were hamstrung in large part because of evidence they were not allowed to introduce, like testimony from other women who accused Cosby of similar acts of sexual assault. Prosecutors sought to introduce testimony from 13 such witnesses, but the judge only allowed one to testify.

And of the over 50 women who have publicly accused Cosby of sexual assault, Constand was the only one whose case was eligible for prosecution based on statutes of limitations -- another example of due process at work in our legal system. The reason we have statutes of limitations in the first place is because the further back an alleged crime occurred, the more inherently unreliable evidence and witnesses become. A statute of limitation is a policy consideration based on due process and it protects the accused, not the victim.

Ultimately, jurors could not come to a unanimous verdict on the three counts of aggravated indecent assault with which prosecutors charged Cosby, and the judge declared a mistrial. Prosecutors will get another shot at a conviction of Bill Cosby at his retrial in April but rest assured, he will not be deprived of his due process rights this time around, just as he was not last time.

Some of due process's other greatest hits include Harvey Weinstein, Roy Moore, James Levine, and Woody Allen, all of whom have been accused of criminal sexual misconduct, but evaded prosecution or conviction based on policies and procedures that were shaped by due process concerns. In the case of Woody Allen, he was never criminally prosecuted for allegedly molesting Dylan Farrow despite the district attorney's noting that there was "probable cause" to do so; true, Allen will never get to work with Natalie Portman again, but that's hardly a deprivation of liberty against which our founding fathers sought to protect all Americans.

Supporting due process in our legal system does not mean that we have to give Rob Porter -- or even President Trump, for that matter -- the benefit of the doubt in the public sphere or the news media. Whether the #MeToo movement will infiltrate the justice system in less obvious ways is a more interesting question. The movement toward extending statutes of limitations will likely implicate actual due process concerns. And we will see if the #MeToo movement has so fundamentally changed our collective conscience that the second Cosby jury will convict him based on the same set of evidence, now viewed through a different lens.

And let's not forget: To date, there has been no legal mechanism through which to hold President Trump accountable for the allegations of sexual misconduct against him, bolstered by an on-tape admission to engaging in what amounts to sexual assault. He's got "Due Process" to thank for that.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 312608

Reported Deaths: 7221
CountyCasesDeaths
DeSoto21429257
Hinds20256414
Harrison17776308
Rankin13539278
Jackson13395246
Madison10051217
Lee9956173
Jones8364163
Forrest7633152
Lauderdale7215240
Lowndes6359144
Lamar620286
Lafayette6162118
Washington5320133
Bolivar4796132
Oktibbeha460398
Panola4545104
Pearl River4495145
Marshall4387103
Warren4368120
Pontotoc419372
Monroe4089133
Union408776
Neshoba4028176
Lincoln3939110
Hancock376686
Leflore3484125
Sunflower335290
Tate331684
Pike3290105
Scott314873
Alcorn310768
Yazoo310269
Itawamba299377
Copiah295865
Coahoma293979
Simpson293788
Tippah287268
Prentiss278560
Marion268680
Leake264973
Wayne262241
Grenada259985
Adams259882
Covington256281
Newton246961
George246748
Winston226981
Tishomingo225067
Jasper220748
Attala214273
Chickasaw207057
Holmes188672
Clay184654
Stone181433
Clarke178179
Tallahatchie177840
Calhoun169532
Yalobusha162936
Smith162034
Walthall133745
Greene130233
Lawrence128223
Noxubee126834
Montgomery126742
Perry126038
Amite123442
Carroll121628
Webster114532
Jefferson Davis106932
Tunica104626
Claiborne102130
Benton99025
Humphreys96133
Kemper95628
Franklin83323
Quitman79616
Choctaw75818
Wilkinson66830
Jefferson65428
Sharkey50217
Issaquena1686
Unassigned00

Alabama Coronavirus Cases

Cases: 528784

Reported Deaths: 10913
CountyCasesDeaths
Jefferson762251516
Mobile40864804
Madison34569501
Tuscaloosa25646451
Montgomery24264585
Shelby23355246
Baldwin20993306
Lee15800168
Calhoun14457312
Morgan14250279
Etowah13796352
Marshall12166222
Houston10506280
Elmore10017205
Limestone9935150
Cullman9617193
St. Clair9584237
Lauderdale9397238
DeKalb8813185
Talladega8183175
Walker7205279
Autauga6910107
Jackson6793110
Blount6621135
Colbert6282134
Coffee5491115
Dale4810111
Russell437938
Chilton4244111
Franklin423882
Covington4105117
Tallapoosa4004150
Escambia392675
Chambers3545123
Dallas3536150
Clarke350360
Marion3092100
Pike309177
Lawrence299698
Winston273572
Bibb259763
Marengo248564
Geneva247075
Pickens233559
Barbour230256
Hale221776
Butler215469
Fayette211962
Henry188544
Cherokee183845
Randolph179241
Monroe176240
Washington166839
Macon158649
Clay153356
Crenshaw151657
Cleburne148341
Lamar141234
Lowndes138453
Wilcox126528
Bullock122941
Conecuh110028
Perry107526
Coosa106828
Sumter104132
Greene92234
Choctaw60324
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