No charges to be filed for LDS judge

[rongo]

smac97 has mentioned this a few times. He is an LDS judge in my county who was accused by a woman of sexual assault ten years ago when she was a teenager. No evidence, and he said/she said. 

https://www.pinalcentral.com/casa_grande_dispatch/area_news/prosecutor-pinal-judge-accused-of-sex-abuse-won-t-face/article_8cbd8bd6-f21e-51e6-9984-dc7b50ef1b53.html

I think this is a victory for due process and constitutional rights. Whether the allegations are true or false, there is no way to prove it, so the accused gets the benefit of the doubt. 

They are still pursuing ethics complaints through the state Commission on Judicial Conduct, but the evidence is the same. How can they sanction him when there is no evidence?

I don't know whether the allegations are true or false, but in putting myself in his shoes, what if I were falsely accused of something, and the only evidence in play was conflicting testimony: my adamant denial vs. her unsubstantiated claims? I would want the same presumption of innocence in my case. 

[rpn]

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

[smac97]

Just now, rongo said:

smac97 has mentioned this a few times. He is an LDS judge in my county who was accused by a woman of sexual assault ten years ago when she was a teenager. No evidence, and he said/she said. 

https://www.pinalcentral.com/casa_grande_dispatch/area_news/prosecutor-pinal-judge-accused-of-sex-abuse-won-t-face/article_8cbd8bd6-f21e-51e6-9984-dc7b50ef1b53.html

I think this is a victory for due process and constitutional rights. Whether the allegations are true or false, there is no way to prove it, so the accused gets the benefit of the doubt. 

They are still pursuing ethics complaints through the state Commission on Judicial Conduct, but the evidence is the same. How can they sanction him when there is no evidence?

I am not sure if this is a matter of "no evidence," but rather insufficient evidence.  Criminal charges require evidence sufficient to meet the "beyond reasonable doubt" standard.  This is the most rigorous and difficult-to-meet quantum of evidence in the U.S. legal system.  There is an intermediate standard for certain other types of non-criminal claims ("Clear and Convincing") and then the "preponderance of the evidence" (aka "more likely than not").

He said / she said will often not be sufficient to meet the "beyond reasonable doubt" standard, but it may be sufficient to satisfy the "preponderance" standard.

Just now, rongo said:

I don't know whether the allegations are true or false, but in putting myself in his shoes, what if I were falsely accused of something, and the only evidence in play was conflicting testimony: my adamant denial vs. her unsubstantiated claims? I would want the same presumption of innocence in my case. 

Same here.  This is the primary concern I have about the #MeToo / "Believe All Women" movement.  For example:

Quote

ALBANY — The wife of a former Albany County prosecutor admitted on secretly taped recordings that she planned to frame him for a vicious beating to force him out of their home.

The explosive revelations surfaced Thursday as the assault case against William Conboy III was tossed in City Court in Albany. All charges were dropped after his now-estranged wife — the legislative director for state Sen. Neil Breslin — refused to appear at the first day of his trial.

His attorney, Cheryl Coleman, highlighted the recordings in court before the case was officially dismissed. They illustrate a divorce and custody battle so bitter and heated William Conboy resorted to clandestinely audio-taping his spouse — and it may have saved him from a conviction and possible loss of his law license.

"I'm going to tell you what's going to happen. If you are not out tonight with all of your [expletive] I will call the Albany Police Department and say that you beat me and get an order of protection against you," Kelly Conboy, 33, can be heard saying on an April 2011 recording obtained by the Times Union.

William Conboy, 35, a former assistant district attorney most recently under District Attorney David Soares, was charged with attacking his wife at 1:30 a.m. on Jan. 30, 2011, inside the couple's home on Meadow Lane. Kelly Conboy alleged her husband kicked and choked her and pushed her to the ground, kicking her in the throat with a rubber-soled boot and dragging the boot from her throat to her chest, according to court papers filed in City Court.

Her husband — whose father, William Conboy II, served as the county attorney and as counsel to the Legislature's Democratic majority — was ready with a recording device when he later spoke with his wife.

"You're going to make something up that I hit you," Conboy asked during the April 2011 exchange.

Kelly Conboy replied, "Yeah, without a doubt."

Conboy asked, "Why would you do that Kel?"

"Why would I do that? To get you the [expletive] out of the house!" she screamed back.

...

Coleman told the judge her client had "been through hell" because of fabricated charges by a wife who had "issues ... psychological and otherwise." She noted the wife's allegations coincided with the dates in which William Conboy filed for divorce and when, months later, a judge ruled she could not be left alone with their daughter.

Coleman said her client filed for divorce in early December 2011. Days later, on Dec. 11, 2011, Kelly Conboy informed William Conboy: "I'm gonna make this as horrible as I possibly can. I'm gonna try and get a restraining order even if it doesn't work."

Here's a video that further outlines of the possible repercussions that Mr. Conboy could have otherwise faced (it's MGTOW video, so sorry about that, but it's the only YouTube video I could find):

Thanks,

-Smac

[The Nehor]

5 minutes ago, rpn said:

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

Because it would never get to trial (in the U.S.) There are minimum standards of evidence before a case can go to trial. A he said/she said criminal case with no evidence or witnesses or anything to corroborate the story would never get past the pre-trial hearing. And rightly so.

[ksfisher]

5 minutes ago, rpn said:

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

It is the role of the prosecutor in our judicial system to decide if there is sufficient evidence to warrant a trial.  Prosecutors are reluctant to take a case to court unless they feel they have a good chance at a conviction. 

I remember reading, and I don't have time now to remember where I read this or look it up, but 100 years ago something like 80% of trials for murder resulted in no conviction.  Now a days it's the other way,  80% result in some kind of conviction.  This seems to be the result of better police work as well as prosecutors reluctance to take something to trial without sufficient evidence.

[Robert F. Smith]

9 minutes ago, rpn said:

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

Before charges can even be filed in any criminal case, there must be enough evidence to convince a judge that there is a prima facie case, that there is probable cause to believe that a crime has actually been committed.  In the absence of probable cause, arrests or indictments may not be made, and police and prosecutors can do nothing.  Suspicious emails, text messages, audio or video, witness testimony, DNA, etc., are all relevant, but in the absence of that nothing can be done.  Only when there is an actual case can it be presented to a jury.

[smac97]

14 minutes ago, rpn said:

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

The jury won't hear the charges because the prosecutor is not filing them.  The prosecutor is not filing charges "because prosecutors don't have the level of evidence needed to win a conviction."

As for the charges being "unsubstantiated," there appears to be insufficient evidence to support the accusation against the judge.  This happens all the time. 

Thanks,

-Smac

[Scott Lloyd]

30 minutes ago, smac97 said:

I am not sure if this is a matter of "no evidence," but rather insufficient evidence.  Criminal charges require evidence sufficient to meet the "beyond reasonable doubt" standard.  This is the most rigorous and difficult-to-meet quantum of evidence in the U.S. legal system.  There is an intermediate standard for certain other types of non-criminal claims ("Clear and Convincing") and then the "preponderance of the evidence" (aka "more likely than not").

He said / she said will often not be sufficient to meet the "beyond reasonable doubt" standard, but it may be sufficient to satisfy the "preponderance" standard.

Same here.  This is the primary concern I have about the #MeToo / "Believe All Women" movement.  For example:

Here's a video that further outlines of the possible repercussions that Mr. Conboy could have otherwise faced (it's MGTOW video, so sorry about that, but it's the only YouTube video I could find):

Thanks,

-Smac

Sounds like the woman was facing possible criminal charges for the false accusation. I'm curious now as to whether anything came of it.

[rpn]

I am well aware of prosecutors screening cases:  I've been one.    I also know that prosecutors can refuse to take cases, and prosecute others when either does not serve justice.   And I also know that prosecutors do not always have the courage to let the system work as it should.   Her testimony alone, if believed is sufficient to get a conviction.   The fact that the prosecutor refused to let a jury decide speaks more of disbelief in the system than it does of any kind of appropriate choice.   This is precisely the kind of case in which a prosecutor interested in justice would take to the jury --- not making the call himself to disbelieve the accuser and to let the judge off the hook.

And the argument that she was threatened with a defamation case doesn't mean she was wrong (you notice the prosecutor didn't lay out any specific evidentiary issues).  It only means that the judge wanted to intimidate her into withdrawing her claims, or someone else wanted to test whether she would cave under pressure.   Truth is an absolute defense of any defamation claim.   And the judge is a public figure which means he couldn't win a defamation claim until he proved that she knew her claim was false --- no way to prove that absent some proof she made it up.  What possible reason could prompt anyone to set herself up for such ugliness, other than a desire to seek justice and the truth?

 

Edited May 23, 2018 by rpn

[smac97]

39 minutes ago, Scott Lloyd said:

Sounds like the woman was facing possible criminal charges for the false accusation. I'm curious now as to whether anything came of it.

Probably nothing.  The husband did not want to file charges, which is a big consideration.  Another is that fake claims of abuse, even if there is plenty of evidence for them, are often not prosecuted because it is politically unpopular to pursue such charges.  The basic reasoning, I understand, is that news reports of women being prosecuted for making fake claims of abuse might deter women with actual claims of abuse from reporting such claims to the police, apparently for fear of being prosecuted if the claims later fail.  

Thanks,

-Smac

[rodheadlee]

1 hour ago, rpn said:

How are they "unsubstantiated"?  Why doesn't a jury get to hear both of them, and decide whether or not the accuser is unbelievable, and whether there is or is not reason to believe one over the other; the accused protected by the obligation to find beyond reasonable doubt?    I'd say that due process requires that a jury make this decision, most particularly when the accused is a judge.

Because 2 liars can put grandpa away for 15 years with no evidence what so ever except their word.

[Scott Lloyd]

6 minutes ago, smac97 said:

Probably nothing.  The husband did not want to file charges, which is a big consideration.  Another is that fake claims of abuse, even if there is plenty of evidence for them, are often not prosecuted because it is politically unpopular to pursue such charges.  The basic reasoning, I understand, is that news reports of women being prosecuted for making fake claims of abuse might deter women with actual claims of abuse from reporting such claims to the police, apparently for fear of being prosecuted if the claims later fail.  

Thanks,

-Smac

That makes sense.

The wrongdoing in this case is so egregious and clear cut, though.

[ksfisher]

10 minutes ago, rpn said:

I am well aware of prosecutors screening cases:  I've been one.    I also know that prosecutors can refuse to take cases, and prosecute others when either does not serve justice.   And I also know that prosecutors do not always have the courage to let the system work as it should.   Her testimony alone, if believed is sufficient to get a conviction.   The fact that the prosecutor refused to let a jury decide speaks more of disbelief in the system than it does of any kind of appropriate choice.   This is precisely the kind of case in which a prosecutor interested in justice would take to the jury --- not making the call himself to disbelieve the accuser and to let the judge off the hook.

And the argument that she was threatened with a defamation case doesn't mean she was wrong (you notice the prosecutor didn't lay out any specific evidentiary issues).  It only means that the judge wanted to intimidate her into withdrawing her claims, or someone else wanted to test whether she would cave under pressure.   Truth is an absolute defense of any defamation claim.   And the judge is a public figure which means he couldn't win a defamation claim until he proved that she knew her claim was false --- no way to prove that absent some proof she made it up.  What possible reason could prompt anyone to set herself up for such ugliness, other than a desire to seek justice and the truth?

 

You seem to be saying that any accusation, regardless of whether there is evidence or not, should go to trial.  Is that right?

[smac97]

4 minutes ago, rpn said:

I am well aware of prosecutors screening cases:  I've been one.    I also know that prosecutors can refuse to take cases, and prosecute others when either does not serve justice.   And I also know that prosecutors do not always have the courage to let the system work as it should.  

Yes, there is a problem with the system to the extent percentages of convictions are emphasized as a measure of a prosecutor's competency.  This naturally leads prosecutors to cherry-pick cases they are more confident about, and leave the rest for plea deals, dismissals, or failure to bring charges at all.

4 minutes ago, rpn said:

Her testimony alone, if believed is sufficient to get a conviction.  

"If believed" being the operative phrase there.  The credibility of a witness is very much a judgment call.

4 minutes ago, rpn said:

The fact that the prosecutor refused to let a jury decide speaks more of disbelief in the system than it does of any kind of appropriate choice.  

Well, maybe, maybe no.  None of us are situated to gauge the credibility of the purported victim.  So she may have been credible and the prosecutor was a chicken (or, as you say, lacked confidence in the system), or she may have had some gaps or inconsistencies in her narrative, or else there were other things that brought her credibility into question.

4 minutes ago, rpn said:

This is precisely the kind of case in which a prosecutor interested in justice would take to the jury --- not making the call himself to disbelief the accuser and to let the judge off the hook.

I'm curious as to how you can make that call.  What if the purported victim has gaps/inconsistencies/contradictions in her story?  She's 25 now, and the abuse ended when she turned 18, or about seven years ago.  That's plenty of time for corroborating witnesses and forensice and evidence to dry up.  

So I guess I'm not sure why what appears to be a purely he said / she said case would be "precisely the kind of case" to pursue.

Thanks,

-Smac

[smac97]

4 minutes ago, Scott Lloyd said:

That makes sense.

The wrongdoing in this case is so egregious and clear cut, though.

My father and I have had many discussions over the years about how injustices can and do arise in society.  We often hash them out for a while, but my dad would still often end up with a shrug of his shoulders and a statement of "Well, we live in a telestial world."  

That's the Mormon version of "That's the way the cookie crumbles," I guess ("*&^% happens" is also a popular refrain).

Thanks,

-Smac

[Scott Lloyd]

12 minutes ago, ksfisher said:

You seem to be saying that any accusation, regardless of whether there is evidence or not, should go to trial.  Is that right?

That's what I'm wondering.

What I remember from covering courts early in my journalism a career is that very few cases go to trial. Most are pleaded down or settled. And that's a good thing; otherwise the system would be so choked it would collapse.

[rongo]

32 minutes ago, rpn said:

  The fact that the prosecutor refused to let a jury decide speaks more of disbelief in the system than it does of any kind of appropriate choice. 

(Not being a fly on the wall) it could also speak to the prosecutor's assessment of her credibility, couldn't it? Possibly?

Edited May 23, 2018 by rongo

[Scott Lloyd]

3 minutes ago, rongo said:

(Not being a fly on the wall) it could also speak to the prosecutor's assessment of her credibility, couldn't it? Possibly?

And if a prosecutor continually brought cases to trial that clearly lacked merit, wouldn't he sooner or later find himself subject to sanctions? (Someone with legal expertise -- which I lack -- would have to answer that.)

[Duncan]

So, would the Church take a hard look at this man? he would know how to make it look like there is no evidence he is after all judge, but would the Church do anything to him? if he confessed that he actually did it i'd imagine as part of his repentance he'd have to tell investigators and that would make the legal system look like a fool. You can't get away with things and you can't make up stuff about people, it would be nice to know there was someway to figure it all out #Hebrews 4:12

[rpn]

Actually no, prosecutors have complete immunity in their prosecutorial decisions.  

Prosecutors are people with biases.   Seems a lot more likely one would be biased to believe a judge, than one who accuses a judge.   Judging credibility is supposed to be the jury, or a judge if the defendant chooses to use a judge.

Prosecutors are supposed to be in charge of getting justice. 

[rpn]

47 minutes ago, ksfisher said:

You seem to be saying that any accusation, regardless of whether there is evidence or not, should go to trial.  Is that right?

No, I'm saying that child sexual assault accusations made when an adult should go to trial even without any other evidence (though I wouldn't be surprised if other evidence could be found if someone actually wanted to do so), especially against a sitting judge.

[ksfisher]

11 minutes ago, rpn said:

No, I'm saying that child sexual assault accusations made when an adult should go to trial even without any other evidence

I'm not sure this sentence makes sense.  Are you saying any accusation of this sort should go to trial, regardless of the evidence or credibility? 

11 minutes ago, rpn said:

I wouldn't be surprised if other evidence could be found if someone actually wanted to do so

Are you saying the police just don't want to find evidence?

Edited May 23, 2018 by ksfisher

[rongo]

32 minutes ago, Duncan said:

So, would the Church take a hard look at this man? he would know how to make it look like there is no evidence he is after all judge, but would the Church do anything to him? if he confessed that he actually did it i'd imagine as part of his repentance he'd have to tell investigators and that would make the legal system look like a fool. You can't get away with things and you can't make up stuff about people, it would be nice to know there was someway to figure it all out #Hebrews 4:12

Kirton McConkie called police and initiated the investigation, so they were made aware of the situation from priesthood leaders. Any Church action would have been made or not, based on available evidence. It would depend on the woman's credibility, other witnesses, confession, etc. 

[The Nehor]

3 hours ago, rpn said:

No, I'm saying that child sexual assault accusations made when an adult should go to trial even without any other evidence (though I wouldn't be surprised if other evidence could be found if someone actually wanted to do so), especially against a sitting judge.

Why? There is nothing for the jury to evaluate other then who they happen to believe.

The presumption of innocence until proven guilty is a wonderful thing until we think we have found a guilty person and cannot prove it.

Edited May 23, 2018 by The Nehor

[Calm]

30 minutes ago, The Nehor said:

Why? There is nothing for the jury to evaluate other then who they happen to believe.

The presumption of innocence until proven guilty is a wonderful thing until we think we have found a guilty person and cannot prove it.

If it comes down to who to believe without any other witnesses, seems to me it then could easily become about who tells a better story.  A person who is naturally nervous in speaking in front of strangers may come off as a liar for no other reason than nervousness, someone composed or a good con might be very persuasive.

I don't really trust the let the jury decide who is more believeable approach is if it just personalities on trial.

Edited May 23, 2018 by Calm