Mitchell's Memo on Ford and Kavenaugh

“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that…I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee.”

That may well be right that the evidence currently in the hands of the Committee would not be sufficient for a prosecutor to conclude that Kavenaugh is guilty beyond a reasonable doubt. This, however, is irrelevant.

Beyond a Reasonable Doubt is the Wrong Standard. Kavenaugh is not about to be deprived of life or liberty. Neither will his career of  his family’s future be ruined if he fails to join The Nine. He will still have a lifetime seat on the second most important court in the United States. He will be lionized as a martyr by many with large megaphones, important connections, and great wealth.
 

For some civil cases, lost wills being a classic example, the standard is clear and convincing evidence. It is a less demanding standard than reasonable doubt. Wouldn’t it be enough to require a no vote on a Supreme Court appointment if there were clear and convincing evidence that the candidate had attempted a rape and lied about it under oath?

Indeed, I would hope that any Senator would vote no if it was only more probable than not that the candidate had attempted rape and lied about it under oath. That is the standard of proof in almost all civil cases. That the Committee Majority even asked for a prosecutor’s memo on the sufficiency of evidence suggests that they believe it irrelevant to their decision whether the evidence shows Kavenaugh probably did it or even that the evidence is clear and convincing that he did it. 

No Reasonable Prosecutor Would Decide Whether or Not to Prosecute on the Evidence Before the Committee.  Perhaps Mitchell mentally justifies her memo by thinking to herself, “If, I were convinced that what the Committee has is all the evidence that there could ever possibly be in the case, I would conclude it could not be proved beyond a reasonable doubt.”  There is no sex crimes prosecutor in the country, however, who having had a complainant who said what Ford said with Ford’s demeanor, would make a decision without an investigation that goes well beyond what the Committee has done. 

Mitchell, herself, noted at the hearing that Kavenaugh’s diary entry for July 1 shows a party including Mark Judge and P.J. Smith, the two witnesses that Ford placed at the party at issue. No sex crimes prosecutor would make a decision not to prosecute without at the very least interviewing these witnesses. It would also be standard prosecutorial procedure to talk to the witnesses, Ford’s therapist and her husband, to whom she gave earlier accounts of the assault. 

If you were the prosecutor, you might even want to locate “Timmy’s” house; see if it checked out with Ford’s description (was there an upstairs bathroom with a bedroom across the hall?); interview Timmy’s parents, perhaps make house “photo arrays” with pictures of the house, its likely party rooms, staircase, bathroom, bedroom, along with “stand in” photos of such features from other “innocent” houses. As an experienced sex crimes prosecutor, Mitchell would know that the memories of victims sometimes have clear images of random aspects of the physical setting of the attack “burned into memory.”  “Staircase number 3 -- that is definitely the banister I remember grabbing as I ran down the stairs.”  It’s a bit of a long shot after all these years, but not beyond the diligence of a good prosecutor. 

Had the District Attorney called her, and asked about her take on the case, would Mitchell have said the following?  “Well the witness seems sincere if typically vague at points, and I haven’t interviewed the people she says were eye witnesses, nor her prior report witnesses, and there may have been a rumor going around the high schools at the time that I haven’t tried to track down. Also I have the name of someone who may be associated with the house where the alleged party and attack occurred, and I haven’t checked that out. But I can unequivocally recommend that we not pursue the case further.”

Had the defense counsel (a far better proxy for the majority caucus of the Committee) asked her at this stage of the investigation if he could assure his client that there would be no prosecution, my guess is that her answer would have been, “Are you nuts?”

In a “She Said, He Said” Case, the Credibility of the He is Scrutinized as Well as the Credibility of the She.  It is rare that the prosecutor gets to interview the suspect in a sex crime case before making the charging decision.  (It is something I would consider offering as a defense attorney in certain very unusual cases. Among several other things, I would have to be confident that my client had come completely clean with me, that he was innocent, and that he would seem open and credible to the prosecutor.) In evaluating this “she said, he said” case, Mitchell commented adversely on the credibility of the complaining witness, over a small inconsistency and over memory vagueness and gaps of the sort Mitchell well knows show up in many, many rape and attempted rape cases.

Remarkably, for a prosecutor making a charging decision in a she said, he said case, Mitchell’s memo give no assessment of Kavenaugh’s credibility. Transport your imagination to a criminal courtroom and watch Mitchell sum up to a jury that heard, among other things, the testimony of Ford and Kavenaugh roughly as it came across in the hearing.  Would she be detailed, forceful and persuasive in calling the jury’s attention to his evasiveness, his attempts to change the subject and to filibuster?  How telling would be the comparisons she would draw to the demeanor and credibility of her complaining witness?   Would she make sport of defense counsel’s attempt to discredit the complainant on her testimony that her fear of flying only usually, and not always, kept her out of airplanes? What would prosecutor Mitchell say about the incentives for Ford to lie and the incentives for Kavenaugh to lie?