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Getting
Confrontational In the last decade, the U.S. Supreme Court hasn't made a lot of waves in the area of evidence law. Last year, I was asked to give a presentation about the Supreme Court's recent decisions in this area, and I didn't have much to report. My title? "Legally Bland." That all changed last week. In the case Crawford v. Washington, the Supreme Court breathed new life into the Confrontation Clause of the U.S. Constitution, which requires that all defendants in criminal cases must be allowed to confront their accusers. Evidence law is suddenly a hot topic. (Well, maybe "hot" is too strong a word; you won't see any evidence professors like me pushing Bennifer off your television screen.) The Supreme Court's opinion in Crawford prohibits the admission of certain out-of-court statements in criminal prosecutions unless the defendant can cross-examine the witness. That's good news to many criminal defense attorneys. But it's very troublesome for advocates of domestic violence victims who want to take advantage of an innovative statute that Oregon passed in 1999. Here's the problem. Victims of domestic violence are often reluctant to testify in court against their assailants. This reluctance may be attributable to fear, economic dependence, or a wide range of other psychological factors. How would you feel if you called 911, summoning the police to arrest your abuser, only to see him back on your doorstep four hours later because the jail is too full? Testifying in court may seem too dangerous, so a high proportion of complainants recant or refuse to testify at trial. Of course, the abusers still deserve to be prosecuted. The prosecutors need to be able to rely on the initial complaints made by victims of domestic abuse who are not testifying at trial. The Oregon Legislature passed a statute in 1999 that allows the admission of statements by victims of domestic violence who speak to police within 24 hours of being assaulted. This law — the first of its kind in the U.S. — helps to ensure that batterers cannot escape punishment through intimidation of trial witnesses. But the Supreme Court's decision in Crawford casts doubt on the viability of Oregon's 1999 law. After Crawford, a battered woman's statement to police may not be admissible unless she is available for cross-examination at trial. In fact, last week the Oregonian reported that the Multnomah County District Attorney's Office dropped a domestic violence prosecution because the defendant moved to dismiss the victim's out-of-court statement under Crawford.
Cases involving child abuse may be harder to prosecute as well. Until last week, an Oregon statute admitted hearsay statements by victims of child abuse who don't take the stand at trial. Here in Lane County, many victims of child abuse have given such statements at the Child Advocacy Center, which provides a safe, non-threatening environment that is vital to the recovery of severely traumatized children. Advocates for abused children are watching closely to see how the Crawford decision will affect the important work of the Child Advocacy Center. Is Crawford a get-out-of-jail-free card for convicted abusers? The retroactivity of the ruling is an unsettled issue, but Multnomah County prosecutor Norm Frink said last week that, "I'm sure every sex abuser in the penitentiary is probably thinking they are going to get out." (If Frink's name sounds familiar, it's because he handled the prosecution that transformed Tonya Harding from an Olympic figure skater to a professional boxer.) The issue of confrontation is a complex one, and I was disappointed that Justice Antonin Scalia's majority opinion in Crawford did not address the full breadth of the issue. Then again, Scalia is not afraid to take sides. Earlier this year he drew criticism for hunting with Vice President Dick Cheney while a case involving Cheney was pending before the Supreme Court. Scalia also raised eyebrows when he spoke at a fund-raiser for an anti-gay group while the Supreme Court was considering whether to strike down an anti-gay statute in Texas. There's no word yet on whether Scalia was shooting cans with batterers the night before he issued the Crawford decision. I think the Crawford ruling has blown the Confrontation Clause out of proportion, with potentially tragic results for battered women and abused children. In an effort to facilitate greater confrontation in court, the Supreme Court may unwittingly have escalated confrontation at home. Tom Lininger teaches evidence and other subjects at the UO School of Law. In his former job as a federal prosecutor, Lininger obtained the nation's first conviction under a 1996 provision of the federal Violence Against Women Act.
David
and Goliath There's a lot to be said for parliamentary democracy. Under this system, we could call for a vote of no-confidence today and have the election right now. The polls suggest we'd win. Unfortunately, this isn't Sweden and George Bush and his crew have a Goliath-sized, $170 million war chest to spend defining John Kerry. They are already tossing more mud than you'll find in a Crawford, Texas pigsty. More is coming. So how do we stop this juggernaut of shameless campaigning? For sure, we organize. As promised a column or two back, good systems to connect volunteers to activist opportunities are coming online. Here are two to check out: National Voice (www.nationalvoice.org)and The League of Conservation Voters (www.envirovictory.org)are live with great volunteer match systems — so you and your friends can get busy. Friends telling friends the facts — and telling them to vote — is the critical counterweight to the Bush misleader machine. While people-power is great, we also need to anticipate and block Bush's final moves if we can. Frankly, given the hemorrhaging of three million jobs, the quagmire in Iraq, and the number of times Bush has used Laura already on TV, the guy is fast running out of ammo. So Goliath is beatable — if we know when to duck, when to confront and when to let it all fly.
Here then are the final plays in Bush's book, and some
suggestions for how to handle them. The Block: Bruce Springsteen burns his AARP card and wakes up independent, baby boomer voters. The Boss was featured on the cover of AARP's Modern Maturity magazine years ago, and now AARP has sold seniors down the river — and is expected to carry Bush's water this election. We need a new ride down Thunder Road. The Play: Bush hands out lots of goodies and grants to mayors and governors feeling the brunt of the economic squeeze, just like Daddy did in 1992. The Block: John Kerry trumps Bush and introduces an innovative, regional, state and local block grants program to support the proven work of groups like Sustainable Portland (www.sustainableportland.org) The Play: Bush delivers Osama's head on a stick in an amazing September/October surprise. The Block: No block here, folks. Just be happy for America! Because Osama is evil. The more we speak about this, the more political we will look. The less we say — other than a heartfelt yay — the better, and the more political they might look. The Play: Dick Cheney gets dumped to the tune of Bonnie Raitt's "Let's Give 'Em Something To Talk About." To soften his image, Bush chooses a new running mate like Rudy Giuliani or Elizabeth Dole on the eve of the Republican Convention. The Block: John McCain, Vietnam veteran and unsuccessful challenger to Bush in the 2000 Republican primary, breaks ranks. He's already defended Kerry's patriotism once. It won't be the last time. The Play: Bush and his surrogates bait the hot button issues like gay marriage and partial birth abortion, so they don't have to explain where Americans can get jobs and health care. The Block: Don't take the bait by confusing our core beliefs and our platform of equal rights — with smart campaign messaging that can make that platform a reality. It might help if Rosie O'Donnell goes on vacation to the Seychelles Islands near the election. The Play: Republicans try to steal the election, this time with touch screen computer voting machines manufactured by companies closely tied to Bush. The Block: Hey, you have to admire the chutzpah here. Look for groups like TrueMajority.org to lead the charge by deploying a network of poll and ballot watchers to count down until the election — and make sure every vote gets counted. The Play: Be positive about the future. Bush will portray himself as the candidate who is winning the war on terror and focused on a better future. The Block: Kerry can't just grouse about the off-shoring of our jobs, but offer a plan to connect the dots between our oil dependence and restoring U.S. technology leadership by investing in emerging areas like "green manufacturing." Can you say New Apollo Project? Dan Carol is a Democratic political strategist and a founding partner of CTSG (www.ctsg.com),a progressive consulting firm based in Eugene, and Washington, D.C.
Axis
of Evil 'Does that mean you have to allow a man to marry his pet or a man to marry his chair?' — The Honorable Jon Bruning, attorney general of Nebraska, responding to the Massachusetts State Supreme Court decision on marriage equality. Does removing legal barriers to spouses of the same sex really put us on a slippery slope to pet and chair marriage? Don't get me wrong, I'm as fond of a slippery slope as the next dyke. But I don't buy marriage equality being the slip'n'slide to hell. Still, I could see marrying my cat. We have a fulfilling, egalitarian relationship, even though I'm a lot older and have opposable thumbs. I adore her, and the feeling is mutual. She cuddles me. She touches her nose to mine. She leaves her regurgitated kibble exactly where my foot will land when I step out of bed. The cat is into me. I wouldn't have a problem with marrying my chair either. My favorite chair never lets me down. It's accommodating yet independent enough to stand on its own four legs. My chair has comforted and sustained me through many a trying time. It unselfishly shares its collected spare change and popcorn kernels. My chair accepts me for richer or poorer, in sickness and in health, good times and bad, happy and sad. I trust my chair will support and honor me as long as we both shall live. If the slippery slope leads to chair-marrying, go ahead and sign me up. Not that the chair is eligible for much in the way of retirement benefits or Social Security, or that a floral recliner would be especially judicious if it ever had to oversee my estate. But were I to wind up in the emergency room, say, I wouldn't mind opening my eyes to the soothing sight of my beloved chair. If we are on a slippery slope for real, and marriage equality is really a crazy wild ride into chaos and eventually polygamy — as constitutional amendment supporters predict — I can state unequivocally, I would be willing to marry both my cat and my chair. If it comes down to the law allowing me to marry the woman I've been sharing a bed with for 16 years and jump the broom with my cat (she's a good jumper!) and get hitched to my chair (it's stable!), I'm certain my cat and my chair would be fine with that. All three objects of my affection accept my multiple devotion, and they are only rarely just a teensy bit jealous when one gets more attention than the other (except my chair—never jealous!). So what's the hullabaloo? Homos aren't all that scary anymore. Years of exposure from the likes of Ellen and the Queer Eye guys and all of us coming out have made an impact. These days most people tend to like us. Regular folks aren't feeling threatened the way they did back when they believed we were recruiting their children and doing all the other icky things the OCA said in the Voters Pamphlet. Apparently, marriage between loving same-sex partners doesn't engender enough panic in the public. To get folks seriously lathered up, now the bigots have to throw in the cat, too (she doesn't like being thrown), and the poor chair. As if marrying a pet or a chair is some deep-seated nightmare — the looming terror people will do anything to avoid, even vote to amend the Constitution. A cat in a bridal veil. A chair in a tux. Ooooh! The new Axis of Evil. Did we think we'd ever see the day when affection for pets and chairs would rattle the public cage more than two sissyfaggots or two bulldaggers dropping out of the patriarchal paradigm to make it with each other? We have come a long way, baby! To protest the constitutional amendment, visit www.dontamend.com Sally Sheklow teaches essay and magazine writing at Lane Community College Downtown Center. Enroll for spring term at www.lanecc.edu Sally lives in Eugene with her wife, her cat and her favorite chair.
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