"If, hypothetically, Bill Burkett . . . had prepared or had typed on a word processor as some of the journalists are presuming, without much evidence, if someone in the year 2004 had prepared on a word processor replicas of documents that they believed had existed in 1972 or 1973 - which Bill Burkett has absolutely not done . . . what difference would it make?"
As an initial observation, I must presume that Mr. Van Os was authorized to utter his hypothetical to the press. Notwithstanding his admonition that Mr. Burkett is not the one responsible for “memogate,” Mr. Van Os' denial rang hollow. It reminded me of a story about my uncle when he was a small boy. He ran up to my father and aunt, who were playing in the front yard, and said, “There’s no fire in the house.” They didn’t believe him, either, especially when they saw billowing smoke coming out of the house.
Setting aside the political agenda behind the memos in question, if any, there are several fundamental problems with Mr. Van Os’ statement. Most notably, the military records are not “replicas” of the originals – if indeed originals ever existed, which is precisely why the documents were immediately suspected of having been forged in the first place. Moreover, Mr. Van Os’ advocacy for a new “belief” standard for the authenticity of documents is somewhat troubling. What about rules of evidence? How did Mr. Van Os seemingly get around 200 plus years of jurisprudence? Imagine, if you will, the colloquy between counsel and Mr. Van Os if he were elected to the Texas Supreme Court:
Lawyer: Your Honor, it was error for the trial court to admit the memos into the record over the objections of counsel. These documents were forgeries. Further, no evidence was presented that original memos ever existed except for the testimony of Mr. X, who is accused of creating the forgeries.
J. [Justice] Van Os: But counselor, Mr. X testified under oath that he believed the originals once existed over 30 years ago, and that he was very careful in forging the memos so that everyone, including the American public, would believe they were duplicates of the originals. Clearly, the jurors were entitled to see the memos for themselves.
Lawyer: With all due respect, no, your Honor. Without the originals, the forged memos constitute nothing more than inadmissible hearsay and should have been excluded from the evidence.
J. Van Os: Well, not so fast counselor. After all, there’s the ancient document exception, and the. . .
Lawyer: Excuse me your Honor, but there is no evidence that the forgeries are over 30 years old. In fact, they were created this year. Besides that, there’s the issue of authenticity again.
J. Van Os: Even so, there’s still the public records exception, the business records exception, and don't forget the one involving. . . .
Lawyer: Pardon me again your Honor, but the hearsay exceptions you are referring to only apply when there is no dispute that the copy to be introduced into evidence is the same as the original, which certainly is not the case here. Indeed, the evidence shows that certain statements in the forgeries could not be true because . . . .
J. Van Os: Back to your argument about the originals, eh, counselor? Don’t you understand? That’s the conundrum we find ourselves in today because the originals obviously do not exist. Thankfully, however, Mr. X believes they once did exist, and he has assured us that his forgeries accurately reflect his belief. Relax, counselor. The jurors are smart people. Right? They don’t need any further safeguards before evaluating the merits of the statements within those memos. And as long as Mr. X’s believes his forgeries are accurate, what difference could it possibly make?
Well, insofar as determining whether David Van Os is elected to the Texas Supreme Court is concerned, I can only hope that it does make a difference.