Is Roy Moore Guilty Beyond Reasonable Doubt?

Leigh Corfman says that she was fourteen years old and waiting with her mother outside a courtroom before a custody hearing when Roy Moore, then thirty-two and an assistant district attorney, offered to stay with Corfman while her mother went into court. Corfman says Moore used that opportunity to get her phone number, and subsequently took her out on several dates. On one of those occasions, he took her to his home, undressed her down to her underwear, undressed himself to the same extent, fondled her through her bra and panties, and attempted to put her hand on his genitals.

If what Corfman says is true, Moore committed a felony under Alabama law (which hasn’t changed in the meantime). Moore says that none of it happened: “I never knew this woman. I never met this woman.”

Moore’s defenders say that he ought to be considered innocent until proven guilty, and that a “mere accusation” (as Donald Trump called it) shouldn’t block Moore’s election to the U.S. Senate. “It’s just he-said, she-said” is the favored phrase. (Moore and his friends also want to ignore the three other juvenile but barely legal girls who say he took them out and kissed them.)

As Mitt Romney among others has pointed out, this is absurdly confused; it’s an attempt to apply courtroom standards outside their proper realm. No one thinks an ordinary political charge needs to be proven beyond reasonable doubt before voters take it into account, and there’s no reason why a charge that happens also to be felony should be any different. (Moore’s attempt, and that of his supporters, to blame the Washington Post for concocting “fake news,” while it might be effective political rhetoric, lost all of its logical force when the Wall Street Journal re-interviewed the Post‘s sources and found that all of them confirmed that the Post had accurately reported their statements.)

Even if this were a criminal trial, Moore might well be convicted. Leigh Corfman’s sworn testimony would be sufficient to establish a prima facie case. It would then be up to the jury to weigh the credibility of the accusation against the credibility of the denial and decide whether they were convinced, beyond reasonable doubt, that the Moore was guilty. Sometimes the jurors decide that they are so convinced, even if it’s simply the bare word of the accuser against the bare word of the complainant: in a mugging, for example, there may be no other witness or physical evidence. If the victim has no apparent motive to lie—while the accused has the strongest of motives, the desire to escape a felony conviction—it may not be unreasonable for a jury to decide that the accusation is convincing enough to convict.

But Moore’s position is actually much worse than that of our hypothetical robbery suspect.

Leigh Corfman is the only person who says Moore fondled her. But she’s not the only witness to the pickup outside the courtroom; her mother, Nancy Wells, was also there. And Nancy Wells corroborates that part of her daughter’s story; she recalls thinking how nice it was for this young gentleman to offer to take care of her daughter.

Moore, however, denies not just the fondling, but any sort of contact with Leigh Corfman at all. On that point, it’s not his word against hers; he is flatly contradicted by two witnesses, not one. And again, his motivation for lying is obvious, while theirs is obscure; Leigh Corfman, for example is a Republican who voted for Trump, which makes it less likely that she is trying to derail Moore’s political career on partisan or ideological grounds. (This is very unlike the typical date-rape case, where the defense is consent and the complainant may have strong reasons to want to deny that consent was given even if it was.)

Once a juror had convinced himself, based on the testimony of not one witness but two, that Moore was lying about the pick-up, then the maxim “Falsus in uno, falsus in omnibus” would apply. As one standard jury instruction says, “If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness’s entire testimony.” If the jury chose to disregard Moore’s testimony, then it would be left only with Leigh Corfman’s sworn word as evidence. The uncontradicted testimony of a single witness may easily constitute proof beyond reasonable doubt.

In this case, though, there is more. Another witness—one of the “good girls” Moore admits to having courted when she was sixteen, the age of consent in Alabama—reports that he first asked her out when she was fourteen, the same age as Leigh Corfman was when the alleged fondling occurred. One of Moore’s then-colleagues in the District Attorney’s office says on the record that he was known to be attracted to teenagers, and that his habit of hanging around malls and attending high-school football games was well known and considered strange. Several people have reported that either Leigh Corfman or her parents told them about their alleged encounter many years ago. The rules of evidence don’t count any that as proof that the charge is true, but it does undercut the idea that the charge was concocted for political reasons or because the Corfmans had been suborned or over-persuaded by the Washington Post reporters who broke the story.

Moreover, while Moore’s denial of any contact with Corfman is at least self-consistent, a reasonable juror could regard the transcript of his interview with Sean Hannity as casting further doubt on his veracity; he starts by saying that all the allegations about teenagers are “completely false,” but then says he doesn’t remember whether or not he dated and kissed a seventeen-year-old who says he picked her up when he addressed her high-school civics class: “No but I don’t remember going out on dates. I knew her as a friend. If we did go on dates then we did. But I do not remember that.” With respect to still another woman who says he plied her with alcohol when she was eighteen and therefore under the legal drinking age, he replies that he couldn’t have done so because they were in a “dry” county and he recalls that she was nineteen. (That’s a second case in which someone specifically remembers Moore committing an illegal act, and he remembers otherwise.)

Asked about whether he in fact dated girls as young as seventeen, Moore equivocates: “Not generally, no. If did, you know, I’m not going to dispute anything but I don’t remember anything like that,” a statement that seems to be at great variance with his initial blanket denial. So does his later response about kissing one seventeen-year-old in particular: “I don’t remember specific dates. I do not and I don’t remember if it was that time or later. But I do not remember that … No but I don’t remember going out on dates. I knew her as a friend. If we did go on dates then we did. But I do not remember that.” (Another version of the transcript has Moore saying that dating teens “would have been outside my customary behavior”: again, a long way from “completely false.”)

So—even putting aside the point that the criminal-law standard of proof doesn’t apply to a political campaign— there is ample evidence for the proposition that Roy Moore, as a thirty-two-year-old assistant district attorney, molested a fourteen-year-old girl. The prisons are full of people convicted on much less proof.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.