Kavanaugh hearing prosecutor Rachel Mitchell's critique of Dr. Christine Blasey Ford is incomplete and deeply flawed
S E E D E D C O N T E N T
Rachel Mitchell, the Arizona state prosecutor hired by the Republicans on the Senate Judiciary Committee to conduct questioning during the Judge Brett Kavanaugh hearing on Sept. 27, has released a memo analyzing the sexual assault allegations by Dr. Christine Blasey Ford. Mitchell concludes that no “reasonable prosecutor would bring this case based on the evidence before the Committee” and that “this evidence” is not “sufficient to satisfy the preponderance-of-the-evidence standard.” As former federal prosecutors in the Southern District of New York who prosecuted and supervised cases involving human and sex trafficking as well as child exploitation, we find her analysis to be incomplete and deeply flawed.
As an initial matter, many questions exist about Mitchell’s claimed independence, including whether and how much she is being paid , and by whom; what Senate Republicans talked to her about before the hearing; and why she ceased asking questions shortly after Kavanaugh began testifying.
When senators question a witness at a hearing, their political biases are obvious. The same is true when prosecutors question witnesses in court — their client is “the people.” But in this unprecedented scenario, these biases were far less clear. Indeed, although Mitchell cross-examined Ford on behalf of the Republican members of the Judiciary Committee — quite unsuccessfully in our view — committee chairman Chuck Grassley, R-Iowa, cut off her questioning of Kavanaugh shortly after his testimony began. Notably, this happened right after Mitchell questioned Kavanaugh about the possibly incriminating July 1 entry on his calendar . The end result was that Mitchell did not question Kavanaugh in the same way that she did Ford, nor did the Republicans make any attempt to do it for her. This alone severely undermines her assessment.
Moreover, we are stunned that a career prosecutor like Mitchell would not acknowledge that, at least prior to the hearing, no meaningful, independent investigation had yet been conducted. Nor did she call for such an investigation. We can confidently say that no “reasonable prosecutor” in this country — state or federal — would ever assess the merits of a case without conducting a basic investigation. Such an investigation would always include interviewing any other persons alleged to have been in the room at the time of the incident in question.
A reasonable prosecutor evaluating this case would attempt to corroborate the stories of both Ford and Kavanaugh by interviewing other witnesses, tracking down alleged witness Mark Judge’s employment records and by drilling down on Kavanaugh’s calendar to see if it could corroborate the party in question. These are all basic investigative steps that would need to be completed before assessing the credibility of allegations such as Ford’s. And yet none of these steps were taken before Mitchell wrote her memo.
Mitchell’s memo also fails to address a central question that any reasonable prosecutor would examine: motive. There can be no doubt that Ford’s life has been turned upside down — no one would want to endure what she has since her allegations have been made public. Moreover, when she first told her couples therapist about the assault — prompted by her irrational but understandable desire to feel secure in her own home — Kavanaugh was not, contrary to Mitchell’s assessment, on the short list of Supreme Court candidates. On the other hand, Kavanaugh has said numerous times that being on the Supreme Court was a life-long ambition of his, and it became clear that the only thing standing between him and that seat are the current allegations against him.
Similarly, any reasonable prosecutor would also weigh the fact that Ford has repeatedly requested an FBI investigation and has submitted to a lie-detector test , while Kavanaugh repeatedly refused to directly call for either despite being pressed at the hearing to ask for an investigation. Mitchell’s failure to even address these issues is stunning.
Worst of all, the Mitchell memo does not even address Kavanaugh’s testimony . It is one thing for a purportedly neutral prosecutor to misleadingly frame Ford’s allegations as a case of “he said, she said.” It is something else altogether to ignore what “he” actually said . Mitchell does not address Kavanaugh’s evasiveness, his combativeness, his anger, his highly suspect answers to questions about whether he had ever blacked out from drinking or his suspect responses to questions about specific references in his yearbook.
As all prosecutors know, small lies matter, particularly where the small lies are meant to protect an unequivocal denial. In this case, Kavanaugh’s denial would be rendered essentially meaningless if he admitted that he blacked out in high school from alcohol. Moreover, in our experience as prosecutors, the witnesses and defendants who thumped their chest the most were not doing so because they were falsely accused; rather, they were the most likely to be lying. They were relying on passion and emotion — not the facts — to convince others of their truthfulness.
Even if you overlook the underlying issues with Mitchell’s memo, her assessment of the truthfulness of Ford’s testimony also suffers from obvious analytical flaws. Here are just a few examples:
- Mitchell concludes that “Dr. Ford has not offered a consistent account of when the alleged assault occurred,” including assertions Ford made about the timing of the event which changed slightly between her original letter and her Senate testimony. Anyone who has dealt regularly with victims of traumatic crime knows that date specificity is challenging, particularly when the event was 36 years ago, and that people’s memories improve the more they think about a particular incident and frame it differently. Even Mitchell acknowledged that “it is common for victims to be uncertain about dates.” Yet, she completely ignores this in her conclusion. What’s remarkable in our view is actually Ford’s consistency about the time frame — the attack happened during a summer while she was a teenager. Anything more or less than that is just unrealistic nitpicking.
- Mitchell concludes that Ford “struggled” to identify Kavanaugh as the assailant by name. The critique here is apparently that Ford did not tell her therapists the name of her attacker. As Mitchell surely must recognize, the identity of one’s attacker isn’t relevant in therapy; rather, the focus is on the attack and its emotional impact, not the identity of the individual. In fact, Ford’s explanation for why she told her husband about the assault in 2012 — because she wanted two front doors in her renovated home due to PTSD she connects back to the attack – was so powerful and so sensible that this unfounded line of analysis from Mitchell reeks of desperation and overreach.
- Many of Mitchell’s critiques of Ford’s testimony are related to her arguing that Ford has “no memory of key details of the night in question.” Mitchell’s definition of “key details” is surprising for a prosecutor of so many years. One doesn’t need to be a trained investigator or a psychologist to understand how human memory works. Ford remembers the traumatic events of the night — the stairs, the bed, “the laughter, the uproarious laughter” — not the superfluous, secondary details of who else was there or how she got home. It is the job of investigators — not crime victims — to fill in the blanks or refute them. Surely Mitchell knows this.
- A major point in Mitchell’s memo is the assertion that Ford’s account of the assault “has not been corroborated by anyone she identified as having attended” the party . This is result-oriented wordsmithing. Mitchell, more than any senator, should know that letters of denial sent by lawyers are no substitute for thorough questioning under penalty of perjury. Regardless, others not involved in the assault would have no reason to remember an otherwise unremarkable night 36 years ago. But most importantly, everyone other than Brett Kavanaugh — including Mark Judge — did not refute Ford’s testimony; rather, they simply said they have no recollection of it. Thus, Mitchell’s reliance on a lack of corroboration is misleading at best and disingenuous at worst, because any prosecutor knows that individuals who did not witness the assault would have no reason to remember it. Further investigation is necessary to attempt to jog witnesses’ memories or otherwise corroborate or refute the account. Without that, a lack of corroboration is meaningless.
Finally, Mitchell’s analysis ignores the fact that some corroboration already does exist. First, Kavanaugh’s own calendars show that during the time period Ford reported he socialized with the several of the key people she singles out. In fact, all of the boys that Dr. Ford can identify from that party were in Kavanaugh’s calendar on July 1, 1982. Second, both Kavanaugh and Ford’s families were members of a country club where Ford says she had been before the attack, which is consistent with her testimony that she was in her bathing suit during the attack. Third, statements in his own yearbook and by high school and college classmates point to a man who drank excessively and was an aggressive drunk, which is also consistent with Ford’s testimony and the nature of the assault. Finally, Ford’s statements in 2012 and 2013 are corroboration for her Senate testimony that would be admissible in a court of law.
Rachel Mitchell may be a very fine prosecutor. But her one-sided, misleading memo draws broad conclusions without any foundation, doing a great disservice not only to the reputation of prosecutors and trained investigators everywhere but also to this confirmation process.
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I'm seeding this to show how biased Rachel Mitchell and the GOP have actually behaved on this issue, despite the fact that treating this as a criminal trial is absurd and demeans the responsibility which the judiciary committee has to properly vet a nominee.
Even worse, it shows that rather than using the normal standard of "reasonable suspicion" for disqualifying a candidate they're misapplying a criminal standard of "beyond a reasonable doubt" for an office which should only have candidates of the highest possible ethics. That Kavanaugh might not be a rapist is a very low standard indeed.
Equally amazing that the GOP's female proxy spent almost all of her time interrogating the alleged victim of a sexual assault rather than the alleged rapist.....the one whom the judiciary committee is actually supposed to be investigating. In fact many of Mitchell's questions had nothing whatsoever to do with the facts of the assault but rather about events 36 years later like Ford's fear of flying, in an apparent attempt to discredit the victim. The bias in that regard was clear as was the fear the all-male panel on the Republican side had of asking a woman a question. The Republicans are very much like the Taliban and Hasidic Jews in that regard (Mike Pence too).
Excellent chart here which is actually the entire transcript.
Cannot reproduce it here unfortunately
That applies equally to Judge Kavanaugh.
That's a very useful and revealing way to analyze their statements. It speaks volumes.
More alleged dodging by Kavanaugh:
I know. One more and I'll stop.
If Bart O'Kavanaugh lied about one thing, it's just as likely he lied about everything.
Same go for "Ford" in your mind ?
"Da Plane.....Da Plane" !
Supreme Court nominee Brett Kavanaugh described to law school students what it takes to be a good judge: Be “ calm amidst the storm ,” keep emotions “ in check ” and “ don’t be a jerk .”
Also, “ first and most obviousl y,” a judge cannot be a “ political partisan, ” he told members of the Columbus Law School at Catholic University three years ago in a speech titled “The Judge as Umpire” (see the video above).
Guess he didn't take his own advice in essence he LIED
Sounds about right "When in Court".
Now how would he explain to his students what the behavior should be when "Accused" of doing something that could change their entire lives…..just for being "Accused" !
hmmmmmmmmm.
He didn't take his own advice.....he was a raging lunatic.
Honest ?
I wonder what normal people look like when found Guilty due to a simple "Accusation" with no proof.
They must go all nuclear.
Remember that when it is proven Christine Ford perjured herself during testimony.
Remember that when it is proven Bart O'Kavanaugh perjured himself during testimony.
Typical republican mo.....the woman is the liar because she is a woman.....
While that's an obviously false claim it does help that not only didn't the FBI initially interview any of the people who knew Kavanaugh in high school or in college, but in their supplemental interview the WH has refused to allow the FBI to interview the several dozen people who say they have relevant information. In fact the FBI hasn't even been allowed to interview Kavanaugh or Ford....who says that she has additional evidence which she was unwilling to reveal in her public testimony.
The trump admin specifically picks people who HAVE no ethics. I have never seen an administration that has lower standards with regards to ethics and morals than trumps admin. It really is shocking since the right proclaims to have "family values" and is supposed to embrace morals.
E.A Is that from a side that " Screamed Long and Loud " that " Ethics and Morality have NO Value "?
All that matters is loyalty to the Fuhrer.
Dr. Ford came off as very credible and honest. Even Chris Wallace said that her testimony was a nightmare for republicans.
"Worst of all, the Mitchell memo does not even address Kavanaugh’s testimony. "
Liberals.....sheeeeesh !
Mitchell wasn't hired to evaluate Kavanaugh. Duh !
Democrats on the Committee were doing that con-job. Duh !
Liberals grasp at anything they can. "I wonder what we can make stick today" !
The liberals kept saying it was just a "job interview"! Wrong, what it amounted to in the end was a complete inquisition!
Yeah, yeah, you've said that already.
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Back to the days of Olde Salem Mass. I'd say.
Yes I did, but that does not make it any less relevant.
Mitchell said it was a bad criminal case. She's right. In a real criminal case, the prosecutor wouldn't get to question the defendant at all unless he wanted it. And the prosecution's case (a single allegation unsupported by their own witnesses) is so bad, every defense lawyer in America would move for dismissal the moment the prosecution rested.
Interesting read, an opinion piece on another persons opinion..
I had to go back and listen to the testimony .. unless I missed it, Ford did not claim to have been at the Country Club - it was more like her best guess'ish recollection that she had been at the Country Club and practicing diving because she had her swim suit on...
This yearbook thing is getting a bit ridiculous … I pulled my books out and cringed at some of the things written in them - some good laughs, some silliness and some edits made by yearbook staff singling some people out .. especially the jocks ..
I do not want Kavanaugh on the Supreme Court .. but what is happening, just does not seem like the right thing, for Christine Blasey Ford, or for Judge Kavanaugh …….. no one is ever going to establish beyond a reasonable doubt (which is the standard of evidence required to convict) that Kavanaugh is guilty of the accusations brought against him - but it can/has ruin(ed) his life in the 'court' of public opinion ...
Damage is already done to everyone involved..
P.s... what is up with trying to discredit Mitchell based on what she may be getting paid, what her conversations with senators was etc etc ….. she must be discredited why? She gave her opinion on a case she is a part of, just like this article is all opinion ..
Mitchell's memo referred to Preponderance of the evidence standards (normally used in civil cases)...those are less stringent than establishing guilt beyond a reasonable doubt (used in criminal cases).
I sat on a civil trial jury. We listened to the complainant and after almost a full day she rested her case. The Judge sent us back to the Jury room. When we returned to the courtroom we were thanked for performing our civic duty and dismissed. The complainant did not tip that 50% scale and the defendant was not heard at all. Based on my experience, not considering Judge Kavanaugh's testimony is a moot point.
There really isn't any point to rehashing the testimonies. Regardless of how anyone views Mitchell's memo - it doesn't change the facts. Mitchell didn't attack Dr. Ford...she was polite and concise. She offered her opinion.
I am getting the distinct impression that anything and anyone is open for attack - just don't say a single word about Dr. Ford's testimony and everything will be fine.
I appreciate your input …
I had to go back and read Mitchell's words .. I have read so many times that Kavanaugh was a criminal / sex offender, I was not even thinking along the lines of a civil action legal requirements ….
I have never been selected for a jury .. think my opinions may disqualify me every time : ) I do not see why an analysis of Kavanaugh's testimony matters .. it was pretty cut and dried that he was angry and hurt over having to defend himself from the accusations against him .. Kavanaugh came on strong and direct, then tipped the needle towards combativeness (which did not do him any favors)
This whole situation has become quite a mess .. smacks a wee bit like blackmail - we shall see if a vote actually takes place this week!
Have you read the articles written by the 'body language' experts regarding Kavanaugh testimony? had no idea there were so many experts out there : )