THE CORROBORATION CONUNDRUMOctober 12, 2018

In February 1942, the notorious gangster Benjamin “Bugsy” Siegel went on trial in Los Angeles for the 1939 murder of fellow mobster Harry “Big Greenie” Greenberg. One of the killers, Allie Tannenbaum, agreed to cooperate. However, District Attorney John F. Dockweiler faced a problem.

California law demanded corroboration by a second witness. The state had that witness: Abe “Kid Twist” Reles, a feared hit man for New York’s Murder, Inc. (Yes, there once were a lot of vicious Jewish gangsters.) Before the trial, the New York Police Department stashed Reles away under 24-hour guard at Coney Island’s Half Moon Hotel. Somehow, the canary flew out the sixth-story window. Lacking wings, he was unable to reach L.A. to sing.

No mob historian would exonerate Bugsy Siegel (a character in the new novel I’m writing). But the requirement for corroboration—or hard evidence—handcuffed Judge A.A. Scott. He dismissed the case.

The recent Senate Judiciary Committee hearing—not a trial—on now-Supreme Court Justice Brett Kavanaugh brings the Siegel trial to mind. Dr. Christine Blasey Ford testified under oath that as a teenager, she’d been sexually assaulted by a drunken teen-age Brett Kavanaugh. The charges came late in the day, and the committee reassembled to probe the matter. The hearing seemed awkward and incomplete. At the last minute, the FBI ran a short, limited investigation. No corroboration appeared.

Democrats, believing Dr. Ford, supported her. Republicans, with no corroboration to spoil their likely victory, supported Judge Kavanaugh. The 50–48 confirmation vote fell almost strictly along party lines with one crossover on each side: Republican Lisa Murkowski (Alaska) against and Democrat Joe Manchin (West Virginia) for.

The Kavanaugh nomination and hearing divided America. The Great Divider, aka Donald Trump, first found Dr. Ford’s testimony credible, then cited the lack of corroboration, then ridiculed Dr. Ford, then called her testimony a Democratic hoax.

Does corroboration matter? Trump declared that young men must be wary of being victimized by women who attack their character with false claims. He’s hardly a reliable source for such advice. Moreover, millions of women have horrible stories to tell. But Republicans correctly cited corroboration as a basic tenet of American jurisprudence. The accused is presumed innocent; the burden of proof lies with the state.

Still, lack of corroboration did not disprove Dr. Ford’s claim. Moreover, women who have survived sexual assaults ranging from thoughtless and disrespectful to violent often cannot provide corroboration. When they do, their complaints frequently are dismissed, generally by men too busy with “other important matters” and, frankly, unconcerned.

I believe that Brett Kavanaugh assaulted Susan Blasey Ford. However, I do not knowit. This I doknow: The oft-scowling Mr. Kavanaugh, through his belligerence, disrespect towards Democratic members of the Judiciary Committee and partisan statements, resembled a teenager caught with his pants down, snarling and screaming to apply a verbal fig leaf. For this alone, I would have voted against confirmation.

That said, corroboration matters and hence America’s conundrum. We must follow our judicial principles in spite of what we “know” about the accused. That’s why Bugsy Siegel had his case dismissed.

Justice, however, sometimes is served in other ways. In 1947, Ben Siegel met his through a gangland assassination. Regarding Brett Kavanaugh, history may render an unkind verdict.

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