After last Thursday’s testimony by Christine Blasey Ford, commentators rushed to call her a credible witness. Did the professional prosecutor with 25 years of experience in sexual assault cases agree? Not really, no, as Rachel Mitchell explained in a detailed analysis she provided after the hearing to the Senate GOP caucus, The Arizona prosecutor laid out her case in a memo published earlier today by the Washington Post.
The “bottom line,” Mitchell writes, is that this case doesn’t meet either a probable-cause nor a preponderance-of-evidence standard. Furthermore, the experienced sex-crimes prosecutor states, there are significant reasons to doubt Ford’s recollections:
In the legal context, here is my bottom line: A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.
Mitchell notes how the story has changed in the telling of it, even over the last couple of months, although she never states that Ford is being deliberately deceptive. One key point: in her original letter, Ford told Feinstein that she could hear Kavanaugh and Mark Judge talking with other party-goers while she hid in the bathroom, but testified in the hearing that she didn’t hear any talk at all. Ford had just “assumed” a conversation took place. Furthermore, the timing of the attack seems to have shifted since Ford’s initial text to the Post on July 6, when she described it as the “mid 1980s,” a time which matched the Post’s reporting of her therapist notes that said Ford had claimed it occurred in her “late teens.” Only after Ford got in contact with Feinstein did the timing of the attack get narrowed to the “summer of 1982.”
There are logical gaps in Ford’s story as well as suspicious details within it, Mitchell argues. For instance, Ford can recall that she was taking no medication the night of the alleged assault and that she had only one beer — but she can’t remember how she got to the party, and more importantly, how she left:
Given that this all took place before cell phones, arranging a ride home would not have been easy. Indeed, she stated that she ran out of the house after coming downstairs and did not state that she made a phone call from the house before she did, or that she called anyone else thereafter.
Mitchell also raises questions about Ford’s memory in the near term. Ford couldn’t recall whether she’d been recorded during her polygraph, even though that was a significant event from less than two months earlier. Ford also couldn’t recall whether she shared her therapy notes with the Washington Post or summarized them. In fact, Ford seemed to insist that she had paraphrased them, even though the Post report clearly stated that Ford had provided at least a portion of them to the reporter.
Ford never shared her therapy notes with the committee, Mitchell points out, which makes it tougher to determine just how dispositive they might be. However, the Post’s account of those notes give different details than those Ford gave the committee. Ford claimed that the Post’s account of them was in error. Although Mitchell doesn’t make the argument explicit here, the prosecutor clearly implies that a refusal to share share supposedly dispositive evidence reduces Ford’s credibility.
This won’t help much in dealing with the media onslaught on Kavanaugh, of course. Mitchell was hired by the Republicans on the Senate Judiciary Committee to handle Ford’s allegations, after all, which the media will stress — if they cover this aspect at all. However, Mitchell addresses that in her memo as well, reminding people that she has no particular political aspirations:
This memorandum contains my own independent assessment of Dr. Ford’s allegations, based upon my independent review of the evidence and my nearly 25 years of experience as a career prosecutor of sex-related and other crimes in Arizona. This memorandum does not necessarily reflect the views of the Chairman, any committee member, or any other senator. No senator reviewed or approved this memorandum before its release, and I was not pressured in any way to write this memorandum or to write any words in this memorandum with which I do not fully agree. The words written in this memorandum are mine, and I fully stand by all of them. While I am a registered Republican, I am not a political or partisan person.
After reading the memo, it should be clear how Mitchell approached this task — as a prosecutor rather than a defense attorney, in order to get as clear a picture as she could. That may not have made for great sound bites, but it gave Mitchell significant credibility in assessing the case Ford presented. In a legal sense, it was a wise approach. Perhaps it wasn’t satisfying politically — certainly not so much as the Republican responses during Kavanaugh’s questioning — but it laid the basis for fair-minded members of the Senate to dispense with this allegation and evaluate Kavanaugh based on his life’s work. The political failing of this is that there are so few of that group left in the upper chamber … which is no failing of Mitchell’s.
Update: One point should be noted: Mitchell doesn’t address Kavanaugh’s testimony or credibility at all in this memo. That may be because Republicans on the panel decided to use their time in the second half of the hearing to push back against Democratic attacks on Kavanaugh, leaving Mitchell little time to assess his responses. However, it may also be because Kavanaugh shouldn’t have had to endure this questioning based on the vague and contradictory allegation in the first place.
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