Ruth Marcus :
Sometimes such representation results in less than perfectly just results. As Justice Benjamin Cardozo famously put it, the criminal goes free because the constable has blundered. That is the way – the only way – an adversary system of criminal justice can function.
End of story, or it would be, except that the decades-old criminal case at issue here involves Hillary Clinton.
To back up, Clinton – then Hillary Rodham – was a 27-year-old law professor in 1975 running a newly formed legal aid clinic at the University of Arkansas in Fayetteville.
As reported by Glenn Thrush in Newsday in 2008, “hard-drinking factory worker” Thomas Alfred Taylor had been accused of raping a 12-year-old girl, the daughter of a family he was living with. Taylor had asked the judge to fire his court-appointed male lawyer and have a female attorney represent him instead. There were only a half-dozen women practicing law in the county at the time, and the judge picked Clinton.
When the prosecutor, Mahlon Gibson, called to tell her the news, “Hillary told me she didn’t want to take that case, she made that very clear,” Gibson told Newsday. Clinton herself described the incident in her autobiography, “Living History”: “I really didn’t feel comfortable taking on such a client, but Mahlon gently reminded me that I couldn’t very well refuse the judge’s request.”
So Clinton went to work. She mounted an attack on the physical evidence against Taylor, enlisting a noted forensics expert to cast doubt on the validity of the physical evidence against her client.
And, as is distasteful but common in rape cases, Clinton prepared to attack the victim’s credibility. Requesting that the victim undergo a psychiatric examination, Clinton wrote in an affidavit, “I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fantasizing. I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body.”
Was there a basis for this claim? The victim says not; the state’s investigator doesn’t recall such evidence; the records were lost in a flood. In any event, the forensic attack carried the day; the prosecutor reduced the charges from first-degree rape to unlawful fondling of a minor. Taylor received four years’ probation and a year in jail.
This story was revived recently after the Washington Free Beacon unearthed audiotapes of interviews conducted by reporter Roy Reed and deposited at the University of Arkansas. “I had him take a polygraph, which he passed – which forever destroyed my faith in polygraphs,” Clinton recalled and chuckled.
“What was sad about it was that the prosecutor had evidence, among which was his underwear?.?.?. which was bloody,” she recalled. The crime lab “neatly cut out the part that they were going to test,” came back with results and promptly sent back the underpants with a hole – having thrown away the crucial piece. So Clinton presented the prosecutor with her expert’s credentials and announced, “This guy’s ready to come from New York to prevent this miscarriage of justice.” Again, chuckling.
To the Free Beacon, this story “calls into question Clinton’s narrative of her early years as a devoted women and children’s advocate in Arkansas.” In its view, Clinton “struck a casual and complacent attitude toward her client and the trial for rape of a minor.”
Let’s stipulate: Clinton’s laughter can sometimes be off-putting; she tends to use it as a way to deflect unwelcome questions. Not in this case. Certainly, Clinton could express more empathy for the girl. But her laughter, as I hear it, is at the vagaries of the system and bureaucratic ineptitude, not the victim.
In short: Feel free to dislike Clinton. Feel free to believe she’d be a terrible president. Don’t blame her for doing her job. The real scandal in this case would have been if she had let her feminist ideology trump her ethical responsibility – to zealously represent even the most loathsome client.
(Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy.)
