Governor Howard Dean — Oath-Helper!

I don't think Democratic Presidential candidate Howard Dean has been shown to coddle wife-beaters.  But I disagree in this instance with a quartet of prominent bloggers who dismiss as meaningless a recent news report regarding an affidavit then-Gov. Dean filed in the divorce proceedings of a Vermont state trooper who later admitted to at least five separate occasions of spousal abuse.

What's been alleged, and what hasn't

Andrew Sullivan and Michael J. Totten both describe this ABC News article from yesterday — entitled "Dean's Trooper: What Did He Know About Abuse Allegations; When Did He Know It?" — as a "smear piece."  The inference, of course, is that this story must have been leaked/distributed by a rival Democratic campaign.  InstaPundit Glenn Reynolds says he doesn't see why ABC ran with the story.  And leftie blogger Atrios not only dismisses the ABC News story as a "pointless hit piece," but has two posts that attack Chris Vlasto, one of the three names listed as writers on the ABC News story.  (Atrios' commenters so far generally blame the Republicans for the "hit," rather than another Dem campaign.)

Certainly the formulaic Watergate-style headline suggests that Dean is somehow culpable.  ABC's lede is indeed an indictment-by-implication:

In his presidential campaign, and as governor of Vermont before that, Howard Dean has taken a tough, zero-tolerance stand on domestic violence, accusing the Bush administration of not being committed to the issue. Yet Dean said he had no idea that one of the men closest to him was repeatedly abusing his wife.

The New York Post has picked up the ABC story today with the shorter but more inflammatory headline, "Wife-Abuse Stunner," and this breathless lede:

Democrat Howard Dean last night faced a charge of intervening to help a wife abuser in a child-custody case, as polls showed his lead collapsing in both Iowa and New Hampshire.

But Totten concludes that "[a]ccording the article, Dean didn’t know anything," and Sully likewise opines that "this kind of irrelevant piece of guilt by association is truly beneath contempt." 

Totten's close reading of the ABC News story is mostly correct:  There's nothing in the ABC News story, nor in the NY Post piece, which would indicate that Dean's affidavit was untruthful, or that he had any hint that Trooper Madore would in fact turn out to be an spouse abuser — although the ABC News story does report that a friend of Madore's wife had phoned Dean before a few days after [ed.: corrected per commenter mwb's remark below, thanks!] he wrote his affidavit to warn that Madore was "not a good father," in response to which Dean hung up on her. 

Indeed, although it's not clear what involvement, if any, Dean had in the process, it appears that Madore was disciplined for offenses relating to his domestic abuse while Dean was still in office.  According to a story from August 19, 2003, in the Barre-Montpellier Times-Argus:

Madore was a State Police lieutenant and was head of former Gov. Howard Dean’s security detail. He was fired in December 2000 after an internal affairs investigation determined he had violated department rules.

According to court papers, the internal investigation determined he had lied under oath about extra-marital affairs during his divorce hearings, committed domestic assault and lied to investigators looking into the allegations.

Ironically — given its more inflammatory headline and more explicit linkage of the timing of the story to Dean's perhaps-faltering campaign hopes — the NY Post piece makes the real problem here more clear than did the ABC News story, so I'll quote at greater length from it:

ABC News reported that in 1997, Dean took the highly unusual step as Vermont governor of intervening in a custody case for state trooper Dennis Madore, who headed his security detail for nine years.

At the behest of Madore's lawyer, a close friend, Dean filed an affidavit claiming the cop was "a firm but gentle disciplinarian" and "a wonderful parent," the report said.

Dean has denied knowing of the abuse, but the wife's lawyer — former Vermont Attorney General Jerry Diamond — said that raises questions about Dean's judgment in inserting himself into the case.

The cop later admitted five separate instances of abuse, and his wife's lawyer said she suffers posttraumatic stress after "years of abuse in which she had been struck, had been pushed, shoved in front of the children."

The trooper's lawyer — Dean pal Phil White — was informed of the abuse charges more than two months before Dean intervened, the report said.

When Vermont's WCAX-TV asked about his role in 2001, Dean said he knew nothing about the charges and added, "I don't think it's my business as an employer to go rummaging through anybody's divorce papers."

The wife, Donna Madore, "was shocked that the governor would do something like that," said her lawyer, a self-described Dean supporter.

ABC said Dean — who as governor urged zero tolerance of domestic abuse — declined repeated requests to comment.

A few things jump out at me from the Post article:

• First, there's nothing necessarily fishy or inconsistent about the fact that the husband's lawyer, White, had been already been alerted to the abuse allegations before Dean submitted the affidavit.  The fact that allegations have been made is a long way short of allegations having been proved, and Madore's admissions apparently came substantially after Dean's affidavit.  Indeed, from the extremely brief quotes in the two news stories, it appears as though the affidavit related more to Madore's role as a parent than as a spouse.  Even if he suspected the spousal abuse allegations might be true, Madore's lawyer had no ethical or other obligation to refrain from submitting evidence that Madore was a good father.

• Second, the reference to WCAX-TV asking about Dean's role in 2001 strongly suggests this is "old news" that's indeed been recycled now by someone — and notwithstanding the paranoia of Atrios' commenters, given the timing, it was more likely one of Dean's political rivals in the Democratic Party.

• Third — and most importantly — the Post article does a better job than the original ABC News piece of nailing the significance of this whole episode.  It's not that this shows that Dean was being hypocritical in arguing for "zero tolerance" of spousal abuse while simultaneously vouching for a known wife-beater's character; the facts don't show that, at least so far.  Rather, what this shows is colossal bad judgment by then-Gov. Dean in injecting himself and his subjective (and wrong) opinion about the character of an employee into that employee's civil domestic relations matter.

Hence the great irony of Dean's comment that it's not an employer's business "to go rummaging through anybody's divorce papers."  He's right, of course.  But far less is it a sitting governor's business to be vouching for the character of one spouse over another in a divorce case!

Why governors ought not be oath-helpers

Obviously I'm curious about what was in the remainder of the three pages of the affidavit, and I'm only guessing at its overall contents. But my strong hunch, as a practicing trial lawyer, is that it was what we would call an "oath-helper affidavit."  Purely and simply, Dean was suggesting that Madore ought to be believed when he claimed to be a good father because Governor Howard Dean said so.

Ordinarily, "oath-helper" testimony is of minimal usefulness to a judge or jury trying to decide disputed facts, and indeed, its admissibility has been sharply curtailed by modern rules of evidence.  The main reason it's of limited value is that the oath-helper is very rarely in a position to give very much non-hearsay testimony about objective historical facts; the oath-helper's raw opinion is deemed to be unhelpful, and perhaps unfairly prejudicial, to the fact-finder who's trying to resolve disputes regarding those historical facts.

Here, for example, despite the fact that this trooper "headed Dean's security detail for nine years," there's no reason to think that they were close personal friends or that they had any other type of relationship that would give then-Gov. Dean a very strong basis for personal knowledge. I doubt, for instance, that the affidavit says, "I've eaten dinner with Trooper Madore and his wife an average of three times a week at their home, slept frequently on their couch, and become intimately acquainted with the most personal details of their marital relationship based on what I've seen with my own eyes and heard with my own ears."  If I'm wrong — if Gov. Dean somehow had a commanding view into the Madores' family life from somewhere other than the back seat of his limousine — then perhaps his testimony could have had considerable probative value in tending to disprove allegations of spousal abuse.  But that certainly doesn't fit with the image of Dean from other media reports, which describe him and his wife as very private, very cool, not anti-social but unsocial and unlikely to attend events that didn't involve their children. 

No, instead, Gov. Dean's affidavit was probably being offered for two reasons:

• The first possibility — the traditional oath-helper premise — is actually more innocuous:  The affidavit was being offered on the theory that Howard Dean's (mostly uninformed) opinion about his subordinate's character is especially valuable because, after all, lookit, Howard Dean's the governor!  Hey, and he's a doctor too!  (As if doctors can look into the hearts and minds of their limo drivers to detect hidden signs of spousal abuse, huh?)  This doesn't necessarily display any corruption or even insincerity.  Dean may well think that his opinion about others is somehow more valuable and accurate than other people's opinions; that just means he has a huge ego, which isn't exactly any secret.

• But the second reason why a lawyer might want to offer an affidavit like Gov. Dean's — a far more troublesome and powerful reason — would be to convey a veiled and implicit message to the trial judge: "Hey, do you know who you're dealing with here? The one guy in the State of Vermont who fills vacancies on the Vermont Supreme Court is telling you that he has a dog in this fight!  We want you to keep that in mind as you're deciding this case, Judge."

That, my friends, is at least an appearance of impropriety.  It's exactly why state governors ought not be doing what Howard Dean did in the Madore divorce case.  And Gov. Dean should have known better.  It would have been the wrong thing to do even if it had turned out that he was a good judge of character.  That Gov. Dean in fact turned out to be a poor judge of character only makes the stink stronger.

Whether the more devious and improper message was intended or not, I know I'd be absolutely livid if the governor of my state filed such an affidavit in a case I was handling. I absolutely agree with this quote from the wife's attorney, Jerry Diamond:

It was a highly unusual move. "I'm sure that there are very few cases on record where a governor might have done that," he told ABCNEWS.

So my conclusion is not that Gov. Dean supports wife-beaters, or doesn't care about spousal abuse. Rather, my conclusion is that this was an instance of very bad judgment when Howard Dean was governor.  Dean willingly assisted a lawyer for one of the litigants in using Gov. Dean's name and position in what appears to be an attempt to exert improper influence in a pending family-law case.

However, I do wonder if this incident, or others like it, were perhaps what oversensitized Dean into his "Dukakis-when-asked-about-Kitty's-rape" moment recently when he seemed reluctant to make a public statement about whether Osama bin Laden deserves the death penalty.  I seriously doubt that the Madore affair actually made Howard Dean doubt his own skills in drawing judgments about people, but it might well have made him a bit more shy about offering opinions about people (other than Dubya, of course) in public — to the point where, by trying to avoid an appearance of impropriety or prejudgment/interference, he ended up looking like a narrow-minded pedantic twit to the 99.999 percent of the public who is already fully convinced that hanging's too good for Osama.

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Update (Jan 15 @ 3:45pm):  James Taranto of the Wall Street Journal's Best of the Web calls the ABC News article a "ludicrous hit piece that tries to paint Dean as condoning domestic violence," and suggests that "this is the sort of thing that can lead to a backlash against the press and in favor of the targeted candidate."  Certainly it's led to a backlash among all the bloggers I've linked so far from both the right, center, and left.  But I continue to think that — perhaps because of the sloppy way ABC News reported it and overhyped it — they're all missing the point of the episode.

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Update (Jan 15 @ 4:45pm):  Mickey Kaus at Slate likewise ridicules ABC News:

I can't quite believe ABC ran with that Dean "affidavit" story (as Drudge tactfully calls it). There's no evidence presented that Dean knew of the actions of the former employee involved, certainly not before he filed his affidavit. Nor is it even really clear exactly what those actions were. Read it yourself. ABC (Mark Halperin, you too) should be ashamed. The network doesn't just report the story--it hypes the story (in the attempt to make it a story).  If I were Dean campaign manager Joe Trippi, I'd have tried to kick ABC off the plane too.

And:

The people who write ABC News' The Note must have thought the anti-Dean "affidavit" story by their own networks' "Investigative Unit" was as sleazy a piece of junk as everyone else did. They gave it about as little play as they could without courting dismissal--burying a one sentence link on page 8 of a 13 page report.... The upshot of this Pravda-like reading: The Note's Mark Halperin, the network's Political Director, thinks someone else in his organization has very bad judgment. He's right!

(Ellipsis in original.)  Very cute, Mr. Kaus can be.  But I still think (yes, I'm repeating here) he's missed the point.

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Update (Jan 15 @ 5:15pm):  "Captain Ed" of "Captain's Quarter" definitely gets it, and explains it from a slightly different angle than I do, but very eloquently.  (Hat-tip to Hugh Hewitt for this pointer.)  And "Blogs for Bush" also has a short squib that appears to get it, too.

My quick take on the three numbered "issues" in Update II of Captain Ed's post:

1. Bingo, you're dead on.

2. I'd have to look at the specific language of the affidavit to conclude that Dean's testimony was on matters on which he lacked personal knowledge.  The only quotes in the popular press so far are the very general ones about the trooper's fitness as a parent, and they're phrased as matters of pure opinion without any allegation of specific facts that would, indeed, need to be based on personal knowledge. 

   Usually, with a cooperative witness who's willing to give a voluntary affidavit like this one, if the witness has more detailed personal knowledge, the interviewing lawyer will extract it and include it in the affidavit because it makes the testimony vastly more relevant and powerful (as compared to Dean's pure opinion, which is border-line admissible if that).  The failure of the ABC News story to quote any such specific facts makes me doubt that they were there, which in turn makes me doubt that Gov. Dean had a personal-knowledge basis for saying much if anything about this trooper either as a father or as a spouse.  But if the purpose was to use Dean's name and office — either for traditional oath-helper purposes or for the more ugly one I've postulated — then the lack of personal knowledge on Dean's part is no drawback.  It's not what he actually knew that was important to this lawyer, but rather, who Dean was.

3. Likewise, without seeing the affidavit in full and hearing more details of the telephone call than are reported in the press, I couldn't draw the conclusion that Dean had a duty to report the phone call.  If the caller had said, by contrast, "Trooper Madore punched his wife in the face at least three times and sent her to the emergency room," you might have a very different situation.  And it still hasn't been demonstrated that Madore was an abusive or bad father — his admissions are to instances of spousal, not child, abuse.