The burden of evidence

Often, the lack of definitive evidence is frustrating.  What really happened with OJ?  There is evidence, but nothing conclusive; a criminal jury found him not guilty, a civil trial convicted him.  What really happened?  We’ll probably never know.

But sometimes having definitive evidence is a problem.  Take the case of Donald Sterling.  His Neanderthal views on race relations were well known and documented at the time he bought the Clippers and in the three decades since.  If proof was needed to show these just weren't rumors, in 2003 he was sued by Los Angeles for racially discriminatory policies, in 2006 he was sued by the US Department of Justice on similar charges, and in 2009 he was sued by respected former NBA player Elgin Baylor alleging race and age discrimination.

So the bottom line is that Adam Silver should have known Donald Sterling was a racist, Doc Rivers and Chris Paul should have known he was a racist, LeBron James should have known he was a racist, and all the other owners in the NBA should have known.  Yet, no one had a problem with there being an owner in a league whose workforce is primarily African-American having such a reputation when it came to race relations.

But then there was definitive proof.  His mistress secretly taped a conversation he had with her in which Sterling blatantly expressed some of his feelings.  Suddenly, NBA Commissioner Silver had a problem with Sterling being an owner, Clipper players were threatening to boycott the playoffs, and he was summarily stripped of ownership without any due process.  Why the change?  People could actually hear Sterling’s beliefs coming out of his own mouth.

A similar situation arose more recently with Baltimore Ravens running back Ray Rice.  In February video surfaced of Rice dragging his unconscious fiancée out of a hotel elevator after he presumably rendered her unconscious.  NFL Commissioner Roger Goodell caused an outrage when he suspended Rice for only two games (by comparison, Ben Rothlisberger was suspended for four games when he was merely accused of abusive behavior towards women).

Why such an uproar?  Once again, the reaction is due (in part) to the presence of irrefutable evidence that shocks the consciousness.  It is one thing to hear about allegations that a professional athlete struck a female companion, but it is another to see him carry her limp body out of an elevator.  It appears Rice will not be prosecuted, and the victim subsequently married him so one assumes she forgave him.  But the general public can’t, largely because of the evidence of their eyes.

George Will once mused that the reason conservatives had a difficult time getting liberals to be shocked by rap lyrics is that the lyrics were so offensive that they couldn’t be quoted verbatim in “family” newspapers and magazines, leaving those who objected with the only recourse of using euphemisms that had no shock value.  It is one thing to defend the first amendment in the abstract, another when confronted with explicit song lyrics about what a gentleman is planning to do with his lady friend when they share some alone time.

Plaintiff’s attorneys have long known the power of emotional evidence.  Juries have awarded damages to supposed victims in mass tort liability cases when there was no scientific proof of any link between the chemical a plant released and birth defects.  Charlie Chaplin was found guilty in a paternity suit when blood testing proved he was not the father but the judge ruled the jury could look at the baby and find him guilty if they thought the baby looked like the alleged father, blood test be damned.

In some cases having direct evidence can be as confusing as having too little evidence.  All we can do is quote Bob Seger; wish I didn't know now what I didn't know then.