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Bench Memos

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There Are Witnesses, and Then There Are Witnesses



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Over at The Corner, Ramesh answers a correspondent who says, among other things, that in my post here yesterday I did not deal “with those who testified to hearing [Anita] Hill complain about [Clarence Thomas] at the time” she worked for him.  These are the witnesses on whom Ruth Marcus partly relied in her Washington Post column that I criticized yesterday.

It is true that I did not deal directly with these witnesses on Hill’s side.  What I did say, however, is that on Thomas’s side were the only witnesses who knew them both and were in the workplace where Hill alleged Thomas’s offenses occurred.  I understand (and I know I will be corrected if I am wrong about this) that in sexual harassment cases, the testimony of persons contemporaneously told by a plaintiff that she was being harassed is sometimes admitted, on the theory that the perpetrators are so good at concealing their actions that eyewitnesses are often lacking and we must look elsewhere, trusting that no woman would make up stories to her friends about such terrible experiences.  This is a hearsay minefield in which fact-finders must tread very carefully.  The fact remains, in the Hill-Thomas controversy, that the only witnesses on Hill’s side of the case as to what allegedly happened to her in Clarence Thomas’s presence are persons who “know” what they claim to know because they learned it, whenever they did learn it, from . . . Anita Hill.  Assuming they all told the truth about how and when they came to know the stories they told, they could not actually attest to the truth of the stories themselves.

The witnesses who came forward to report that Clarence Thomas’s behavior was above-board in the workplace, and that Anita Hill was evidently comfortable in his presence, were there.  And what they had to say is compelling, in my opinion.



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