An Interesting Choice

 The real trouble with reality is there is no theme music.

Anonymous

We'll get right to it.

Yesterday, the Supreme Court released the findings, or preliminary findings...a rough draft, anyway, of the eight month investigation into the leak of Justice Alito's draft opinion in the Dobbs case. Although there was a degree of fanfare in the announcement, there was (apparently) no mood music.

This is not intended to be a rehash of Dobbs. Zero minds will change merely based on my opinion, so I express none. Read it, and think for yourself.

This is about the profound breach of protocol that occurred in the premature leak of Justice Alito's draft opinion. Someone who knows a lot more about the Court than I can discuss the details of how and to whom draft opinions are circulated, but suffice to say they are not treated like the presidential launch codes for our nuclear weapons.

Too soon?

According to the news release, several things were concluded...conclusively. First, the system wasn't hacked, which in Washington, DC must come as something of a surprise, if not a relief. Second, because "working from home" is the new normal, it was hard to say authoritatively how the draft got from someone who was allowed to have it to a Politico writer (who wasn't supposed to have it - hell, they weren't supposed to know it existed) who would release it to the world. Finally, we come to what we're here for.

According to the news release, the culprit could not be identified "by preponderance of evidence." To those of us who have given over most of our adult lives to "The Bizz," those carefully-chosen words are as meaningful for what they don't say, as for what they do. What they say to me is they know who did it, they just can't prove it.

I don't want to turn this into an introductory class in criminal procedure. You would get bored, leave and never come back. I guess I'd have gotten the click out of it...

Anyway, there is a sort of continuum of standards of proofs, a sliding scale of persuasion that we indulge because it sounds formal and complicated. In reality, it is formal, complicated, and imprecise as well. It tells us when we are enough, to steal a phrase from Cool Runnings. To wit:

Lawyers and judges simply hate the "mere hunch." Whenever an opinion serves up those two words together, one can be assured whoever had the temerity to offer that minuscule amount of evidence is going to lose. Cops love hunches, often stake their lives on them. That's a different blog.

Suspicion, especially if it is reasonable, permits someone to be briefly detained and questioned. How briefly depends. Whether they have to answer the questions depends. It doesn't take much to articulate suspicion - a rookie police officer has been taught how to explain it. 

Probable cause... Now we're talkin'. The difference between suspicion and probable is basically the difference between maybe and likely. This gives an officer the legal authority to arrest, and take the person to the Graybar Motel. A person can be jailed for an extended period based solely on probable cause. Oh... When you read that someone was arrested and jailed "on suspicion of" in the Denver Post, one word. NO!

"Preponderance of evidence" is a very carefully chosen phrase. This is the legal standard to hold someone liable in civil court. Civil court is where people are sued for money and stuff. It's usually articulated as "51%" or more likely than not. Not the high-octane standard of beyond a reasonable doubt required in criminal court. It's why OJ was acquitted in criminal court ("If the glove don't fit, you must acquit") but ended up having to sell his Heisman Trophy to pay for the wrongful deaths of Ron Goldman and Nicole Brown Simpson after a civil trial.

So, let's sum up. The Supreme Court says that proof sufficient to satisfy the preponderance of the evidence threshold doesn't exist. They are silent as to whether probable cause exists. That's on purpose. 

They know.