Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) announced Tuesday that an Arizona sex crimes prosecutor will question Judge Brett M. Kavanaugh and Christine Blasey Ford about her allegations of sexual misconduct at a hearing on Thursday.
By all accounts, bringing in Rachel Mitchell — chief of the special victims division of Maricopa County, Ariz., with experience questioning accusers and the accused about sexual assault allegations — was an unprecedented, yet positive, move. It spares Republicans the optics, and Ford the experience, of an all-male panel of Republican senators asking personal and emotional questions.
Attorneys and advocates have nevertheless expressed concern about Mitchell assuming the role of both defense attorney and prosecutor, where she will conduct direct and cross examinations of the witnesses. It will also be Mitchell’s job to cross-examine the accuser, a role that rarely falls on the prosecution.
As a sex crimes prosecutor, Mitchell is probably aware of the dynamics that play out in this type of case: a victim who didn’t immediately report the crime and who remembers some details but not others. In fact, she has probably argued to a jury before why those things don’t detract from the witness’s credibility, said David Rossman, Boston University Law School’s director of criminal law clinical programs.
But when Mitchell is playing the “role” of the defense attorney, she’s tasked with cross-examining Ford. During those questions, she is aiming to undermine Ford’s credibility.
"I don’t know what instructions she got from the people who hired her, but she’s not going to ask the kind of questions that a prosecutor would ask on behalf of the state,” Rossman told The Washington Post.
A prosecutor’s role is to cast doubt on the credibility of the accused — in this scenario, Kavanaugh. Each senator has five minutes. Most if not all Republicans are expected to hand over their questioning time to Mitchell.
Mitchell was selected for her “legal experience and objectivity,” Grassley said in a statement. “The goal is to depoliticize the process and get to the truth, instead of grandstanding and giving senators an opportunity to launch their presidential campaigns.”
Although her day-to-day responsibilities lie outside the courtroom in a managerial role, Mitchell should be skilled in speaking to assault survivors. Her questions should be professionally framed, not designed to give political benefits to the senators, Alan Dershowitz, emeritus professor at Harvard Law School, told The Washington Post.
Still, he added, “It’s strange. It would be better to have two lawyers and create more balance.”
Attorneys have also voiced concerns about there being no presiding judge at the hearing.
In criminal cases, a judge serves as a referee, preventing both sides from badgering a witness or asking an inappropriate question. Here, there’s no neutral arbiter telling a witness that she doesn’t need to answer the question.
“As a former [domestic violence] prosecutor, I am concerned about how Ford is going to be treated in these proceedings,” said Melba Pearson, deputy director of the ACLU of Florida. “Are the questions really going to be impartial and crafted with an eye to getting to the truth of the matter or is this merely a campaign to discredit and smear Dr. Ford?”
The critical question is: Can she do this fairly?
Mitchell, who could not be reached for comment immediately, was brought on by Republican committee members, fueling the belief that she will frame questions based on their preferred outcome. Some attorneys, like Rossman, suggested that Mitchell’s “client” has one goal: to confirm Kavanaugh.
“We’d all be pleasantly surprised if the majority hired a lawyer to ask questions in a neutral way,” he said.
Others lawyers, like Dershowitz, have more confidence in Grassley’s claim about depoliticizing the process, viewing her as neutral and objective, as opposed to a Republican questioner.
The American public and the hearing participants deserve to have a nonpartisan, objective process, he said. One that everyone watching will say: This was fair.
On Wednesday, Ford’s written testimony for the committee was released, where she acknowledged that Mitchell had been brought on: “I understand that the Majority has hired a professional prosecutor to ask me some questions, and I am committed to doing my very best to answer them. At the same time, because the Committee Members will be judging my credibility, I hope to be able to engage directly with each of you.”