One place where nobody was watching the Kavanaugh hearing on Thursday morning was Room 30 at Bronx Supreme Court, where a second day of jury selection on a sexual assault case was commencing.
“People of the State of New York versus Keith Walton,” the court clerk called out.
NYPD Deputy Inspector Keith Walton had been charged with sexually abusing a female police officer in his office at the 49th Precinct on Nov. 6, 2016. That was two days before the election of President Trump, who had been recorded bragging about the same behavior for which Walton was now going on trial.
“Prospective jurors entering,” the clerk called out.
Two dozen citizens entered, but several others failed to appear. Judge Steven Barrett finally picked up a phone to call down to the jury assembly room for possible stragglers. Ring. Ring. Ring. Nobody picked up.
“What a system, huh?” Barrett asked.
He tried another extension and finally got somebody. A few more jurors soon after appeared.
“We’re going to start,” the judge announced.
At the very time Dr. Christine Blasey Ford was beginning her testimony before the Senate Judiciary Committee in Washington, D.C., the judge in the Bronx was explaining to the prospective jurors that they could not be excluded from being seated on the basis of race or religion or gender.
“Or any other constitutionally protected right,” he added.
The mention of such rights served as an unspoken reminder of what was at stake with Brett Kavanaugh’s nomination to the Supreme Court and the hearing that was even then commencing, watched by millions, but by nobody in this courtroom.
“That being said, I’d ask the clerk to fill the box,” the judge then said.
The clerk placed cards bearing the names of the prospective jurors in a raffle drum that squeaked as she began working the handle.
“When you hear your name, take all your belongings and and follow the court officer,” the clerk said.
The creaking stopped and the clerk began extracting cards at random from the drum, calling out the corresponding names, until the 16 seats in the jury box were filled. The judge began to question them in an effort to ensure they could be impartial.
“There have been cases in the last 10 years when the appellate courts say, ‘I’ll try’ isn’t good enough,” the judge advised.
He asked them one by one where they lived in the Bronx and what they did for a living and whether they were married and if they had children. They included a doctor and a teacher and a hospital cop and an unemployed construction worker and a housekeeper and a bartender, but thankfully no ever-biased senators.
The judge asked them as a group if any of them had been the victim of a crime.
“A nail salon got held up,” one offered.
“My brother was killed,” another said.
“I had a brother that was shot,” another said. “But not killed.”
The judge also inquired if any of them had been a victim of a sex crime. A woman raised her hand.
“Was that a long time ago?” the judge asked.
“Yes,” she said quietly.
“Did you know the person?”
Another woman volunteered that she had been in Manhattan when a man grabbed her breasts.
“He was arrested and questioned and then he was let go,” she reported.
The judge asked if any of them had been the victim of sexual harassment, and none said they had. The judge noted that they nonetheless must be aware of the #MeToo movement and the continuous stories in the news about sexual harassment and sexual assault.
“The media may get it right or may not get it right,” the judge said. “We get it right.”
One way they get it right is with witnesses. The prosecution and the defense had already submitted witness lists to the judge. A witness as important in this case as Mark Judge is in Ford’s account would certainly be called.
The judge called for a short break and the jurors filed out into the hallway, where a person was following the hearing in Washington on a cellphone. Ford’s voice as she testified reached the ear as faint in all but her hurt.
After a few minutes, the jurors returned to the courtroom. Assistant District Attorney Rhea Thomas was given a chance to question the jurors. She cited recent sex abuse cases.
“Kavanaugh,” she said. “Bill Cosby.”
She went on, “One side is Person A, says ‘this thing happened to me.’ On another side, Person B says ‘nothing happened.’”
She then asked a juror, “How do you tell if somebody’s telling the truth?”
“I don’t know,” the jurors replied. “Eye contact... [And] if the story stays the same.”
Another juror said, “I think you need to know the person. The evidence speaks for itself.”
Another said, “Sometimes, it's not possible unless you have some kind of evidence to present. You have two people telling you a story.”
The prosecutor inquired if they considered possible motives for lying.
“Nobody wants to get in trouble,” a juror responded. “Nobody wants to get caught. That would be a reason for everybody. You don’t want to get caught and called out.”
When defense attorney Xavier Donaldson got a turn, he asked a woman if she thought she would be a good juror. She said she would.
“I don’t go by what people tell me,” she said. “I go by what I see.”
Donaldson turned and asked another juror what she had for dinner the night before.
“Spaghetti,” she said, “With meat sauce.”
“Beef sauce or turkey sauce?” Donaldson asked.
“Beef,” she replied.
Donaldson turned back to the first juror and asked what the second juror had for dinner.
“Spaghetti with beef sauce,” the first juror answered.
“How do you know?” Donaldson asked.
“She told me,” the first juror said.
“Oh, so you do go by what people tell you!” Donaldson said.
All the jurors erupted in laughter, but there then came a pause signaling they understood it had also been a serious lesson.
At that moment, the courtroom had a sweet solemnity. The juror assembly room might not always answer the phone, but the system seemed like this contest between the prosecution and the defense as overseen by the judge and ultimately decided by the jurors might well approach the demonstrable truth. The basic structure and guidance of this actual due process would of course be imparted by the Constitution as interpreted by the U.S. Supreme Court.
Back out in the hallway, Ford’s anguish during her continued testimony down in Washington, D.C., could still be heard clearly over a cell phone. She would be followed by Kavanaugh, who was angry and tearfully aggressive, morphing from Brett the Virgin to Brett the Vengeful. His primary audience beyond the committee seemed to be Trump.
Even though the ultimate purpose of the hearing was so momentous as to determine whether Kavanaugh should become a Supreme Court justice, there was no sense that the proceeding was headed toward determining the truth as in Courtroom 300 in the Bronx. The Democratic senators continued to call for an FBI investigation before a vote.
One recourse that would not require the Republican majority is the police department in Montgomery County, Maryland, where the long-ago assault allegedly took place. Maryland has no statute of limitations for sex crimes. A Montgomery County police spokesman was asked yesterday if the department was prepared to investigate if the victim filed a complaint.
“Absolutely,” he said.
The detectives would surely seek to interview Kavanaugh’s buddy Mark Judge, who Ford says was in the room when she was assaulted. The detectives might also inquire if Kavanaugh maybe could have just skipped recording on a party where he committed a sexual assault on the calendar he says he started keeping in emulation of his dad.
If the detectives found insufficient cause to bring charges, then Kavanaugh would be able to say so to his kids and everybody else.
If there proved to be enough to warrant an arrest, the case could end up in a suburban version of Bronx Supreme Court.
Meanwhile, the Keith Walton trial continues and a president who bragged about repeatedly doing the very same thing presses to get Kavanaugh confirmed.
The outcome in the Walton case will thankfully be determined not by 22 partisan, decidedly biased senators but by 12 decent Bronx citizens who stand a good chance of getting to the truth.
Walton shares Kavanaugh’s aggrieved glower. Should the accused cop be convicted, he may well feel compelled to appeal, perhaps all the way to the Supreme Court.