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Monday, September 13, 2004

Rather's Rules of Evidence

Okay, let's recap. CBS and the Boston Globe re-researched the records on the President's Texas Air National Guard (TANG) service and announced that they believe there are new issues based on "new" documents that have been provided to them. And CBS dragged old Ben Barnes before its mighty Eyeball to perform his Kerry donating duty to tell how he somehow helped Mr. Bush get into the TANG, which information that famed ambush journalism program then uses to argue that Mr. Bush didn't serve properly even after he got in through use of pull. Which in turn has been seized on by what seems to be every anti-Bush force in the media, whether new or old, to prove...uh...some sort of parity between the SwiftVet allegations concerning Kerry's war and post-war record and the President's service in the Guard during much of the same period. And then the Blogger brigade notices the documents used to support the CBS allegation may in fact be really "new" - freshly minted new as opposed to recently discovered.

And CBS ...stalls for time, while a whole web of technically savvy people knock down the authenticity of the papers CBS has offered for our inspection. Dan Rather then offers up one expert who says he can authenticate the signature on a copy of the original document without seeing the original (after previously writing that an expert should not make such conclusions based on copies). CBS offers up a couple of more people who suggest, it appeared to me, that because documents like these could exist, the proffered documents must be real. Neither of them testifies to any personal knowledge of the documents in question. CBS expressly states that these documents were not part of any official files, thus seeming to negate any argument that these documents fall under either the official records or business records exception to the hearsay rules. No cross-examination of the witnesses being allowed, Mr. Rather announces that he has carried his burden of proof by a preponderance of all the evidence he allowed to be heard and goes on to state that since he hasn't allowed any other evidence to heard (and did not allow the witnesses to be cross-examined) there is no other evidence... and declares victory. I missed the White Rabbit, but the Rules of Evidence seemed to be right out of Alice's Adventures in Wonderland.

“There's more evidence to come yet, please your Majesty,” said the White Rabbit, jumping up in a great hurry; “this paper has just been picked up.”

       “What's in it?” said the Queen.

       “I haven't opened it yet,” said the White Rabbit, “but it seems to be a letter, written by the prisoner to—to somebody.”

       “It must have been that,” said the King, “unless it was written to nobody, which isn't usual, you know.”

       “Who is it directed to?” said one of the jurymen.

       “It isn't directed at all,” said the White Rabbit; “in fact, there's nothing written on the outside.” He unfolded the paper as he spoke, and added “It isn't a letter, after all: it's a set of verses.”

       “Are they in the prisoner's handwriting?” asked another of they jurymen.

       “No, they're not,” said the White Rabbit, “and that's the queerest thing about it.” (The jury all looked puzzled.)

       “He must have imitated somebody else's hand,” said the King. (The jury all brightened up again.)

       “Please your Majesty,” said the Knave, “I didn't write it, and they can't prove I did: there's no name signed at the end.”

       “If you didn't sign it,” said the King, “that only makes the matter worse. You must have meant some mischief, or else you'd have signed your name like an honest man.”

       There was a general clapping of hands at this: it was the first really clever thing the King had said that day.

       “That proves his guilt,” said the Queen.

It is no wonder that some really good lawyers are leading the attack on these documents.

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