No trial lawyer wants to call a defiant or dispassionate witness to the stand, much like U.S. Supreme Court nominee Brett M. Kavanaugh came across as he faced the Senate Judiciary Committee on Thursday.
But Christine Blasey Ford was a prosecutor’s dream witness.
Questioned by a professional prosecutor, Ford focused on an allegation of sexual assault dating to high school. Ford consistently detailed the things she remembered. She was emotionally salient about the assault’s impact on her life.
“The details about that night that bring me here today are the ones I will never forget. They have been seared into my memory and have haunted me episodically as an adult,” Ford told the committee in her opening remarks.
Yet even if committee senators found Ford credible, Kavanaugh may still be confirmed Friday.
Sniffles were audible when Ford finished her opening statement. She was nervous; she told the committee that she was terrified. But she was determined to tell her story, after meekly asking committee Chairman Charles E. Grassley (R-Iowa) for a caffeine break.
Now a professor at a California university, Ford said she is still tormented by the memories of Kavanaugh and his prep school friend Mark Judge’s “uproarious laughter” as the boys had “fun at [her] expense.”
Her lasting first impression was probably bolstered in contrast with Kavanaugh’s defensive demeanor. (At one point, a wide-eyed Ford told the committee, “I didn’t understand why I would need lawyers. . . . I just didn’t know.”)
According to Paul Butler, former U.S. attorney and professor at Georgetown University Law Center, Ford spoke with the intonations and in the halting way a teenager speaks. “It’s not something you can control as an advocate, but when you have a witness like that, it’s golden,” he told The Washington Post.
More than mere appearance, some things she said further cemented confidence in her credibility:
- A suggestion to narrow down the date of the alleged assault — asking the committee to investigate when Judge, an alleged eyewitness, worked at the Safeway grocery store in Potomac, Md., where Ford said she saw him shortly after the alleged attack.
- When asked why she decided to take a polygraph, Ford explained that she simply “didn’t see any reason not to do it.” It’s a small detail but one that someone who’s scared of the truth does not say.
“For a person who is detailed and scientific, her language was clear,” said Andrew King-Ries, a professor at the University of Montana School of Law and a member of the American Bar Association’s Commission on Domestic & Sexual Violence.
Ford used precise words like “sequela” to describe the consequences of the assault and its aftermath.
“I would have been thrilled to have a survivor testify in the manner she testified. It was remarkable evidence that got to the truth of what happened,” he said.
But much of Thursday’s procedure worked against attempts to find out what happened — from the five-minute rounds of questioning, which prevented career prosecutor Rachel Mitchell from developing coherent lines of questioning, to the committee’s failure to subpoena witnesses.
“You never have an eyewitness to a sexual assault. The fact that there is one here, and that the Republicans won’t allow him to be called, is more evidence the procedure isn’t about the truth,” Butler said.
Mitchell, the special victims division chief of Maricopa County, Ariz., was tapped Tuesday by Grassley to question witnesses at the hearing. The decision spared Republicans the optics, and Ford the experience, of their all-male panel of senators asking personal and emotional questions of a female witness. Having a female questioner ostensibly allowed for a more vigorous cross-examination of Ford.
But Mitchell was thrown in a setting that hamstrung a seasoned prosecutor. Questioning sex crime victims, in large part, hinges on fostering a trusting rapport; Mitchell met Ford for the first time on national television.
Each senator was allocated five minutes. During Ford’s testimony, all committee Republicans yielded their time to Mitchell. Republican senators abandoned Mitchell midway into Kavanaugh’s questioning. Mitchell was later heard telling Republican senators that, as a prosecutor, she would not bring a criminal case against Kavanaugh, Politico reported.
At a criminal trial, lawyers are given the opportunity to make a closing argument, connecting the dots for the jury. Mitchell was unable to do that, and her cross-examination felt disjointed.
“She probably did have some kind of theory, but it seemed random,” Butler said. “She has no experience cross-examining alleged victims. What she does daily is support them and say, ‘I know you’re telling the truth,’ ” Butler said.
In assessing credibility, prosecutors ask: What does an individual have to gain? What are the risks of coming forward?
For Ford, who first reached out to her congresswoman and The Washington Post after the White House released a list of qualified candidates, there were huge risks and nothing to gain.
“I was watching carefully throughout the summer,” Ford said Thursday when asked why she came forward anonymously. “Once he was selected and it seemed like he was popular and a sure vote, I was calculating the risk/benefit for me and wondering whether I would just be jumping in front of a train that was heading to where it was heading anyway.”
Ford had every reason not to come forward.
“It’s stunning to see women who are willing to put themselves out on a national scale. She was acting in the nation’s interest, and her willingness to do that makes her credible. It’s compelling,” King-Ries said. “People will ask where the evidence is, but that is the evidence.”
The utter failure of Kavanaugh’s advocates to establish a motive for why she would fabricate this story would be a fatal flaw in a criminal case.
With a constitutional duty to “advise and consent,” the senators will decide whether Kavanaugh should be elevated to one of the most powerful positions in the country. For some of them, Ford’s credibility may seem of little consequence.