Mitchell issued a report to “All Republican Senators” on Sunday, labeling the accusations “even weaker” than a " 'he said, she said’ case" of sexual assault.
It is undoubtedly true that these type of cases are among the most challenging to prove, but sex crimes prosecutors do it every day, often successfully. I handled dozens of these cases while working as an assistant district attorney in Brooklyn’s Special Victims Bureau, which leaves me respectfully disagreeing with Mitchell.
A reasonable prosecutor examines a case before reaching conclusions
Mitchell laments that the case is weak because “witnesses either refuted her allegations or failed to corroborate them.” Nothing is corroborated, because there’s been no investigation yet.
A prosecutor would never rely on an affidavit to “refute” criminal accusations. A piece of paper — submitted for a hearing, when the individual believes he need not appear in person — cannot be cross-examined. It’s different from interviewing a person face to face, which is what any reasonable prosecutor would want to do.
She would examine the dates, places and people that the committee did not permit before Thursday’s hearing. Law enforcement would work with the accuser to track down every possible witness and piece of evidence to either underscore Ford’s narrative or give weight to Kavanaugh’s.
Mitchell was not brought in to do that.
Although this was not a criminal case, Mitchell’s role was more akin to a defense attorney than a prosecutor, and defenders are in no position to issue prosecution reports.
She never spoke to Ford, as any lawyer or prosecutor would, basing her examination on available information, in part articles published by The Washington Post.
“No sex crimes prosecutor could stand behind that if Ford was their witness and not the subject of their defense. How she goes back to her victim population in Arizona is beyond imagination to me,” Linda Fairstein, former chief of the Manhattan District Attorney’s Office’s Sex Crimes Bureau and career sex crimes prosecutor, told The Post. “It’s outrageous.”
Proper legal procedures were not followed
Criminal procedure permits drawn-out and detailed direct and cross-examinations in a court of law controlled by a judge and in front of an impartial jury. Mitchell had no independent opportunity to do either.
She acknowledged this during the hearing, asking Ford whether she knew that the process — five-minute intervals of questioning — was not the ideal environment to determine a sexual assault survivor’s credibility. Thus, it’s also not how any reasonable prosecutor would determine whether to move forward.
By issuing Sunday’s report, Mitchell all but asserted that she was an “expert.”
If this were a trial, she would take the stand to explain her position. Her “expert opinion,” created at the request of and paid for by the opposing side, would be subject to cross-examination for its basis and validity. Ford would also be allowed to hire an expert to testify on her behalf, too.
Instead, Mitchell has written an unchallenged document that the Republicans can rely on in the upcoming vote to confirm Kavanaugh.
Kavanaugh testified, too
As a criminal defendant, Kavanaugh would be shielded with the presumption of innocence. The prosecutor would need to prove her case beyond a reasonable doubt; Kavanaugh need not testify.
But he did, and his testimony is noticeably omitted from Mitchell’s memo.
Before deliberating, a judge would instruct his jurors that the defendant is an interested party as a matter of law. In fact, there is no one more interested in the outcome of the case, no one who has more to gain or to lose, than the defendant.
Kavanaugh’s demeanor during questioning is relevant — was he hesitant or hostile? Evasive or not responsive?
What he said should also be evaluated: Was his version of events logical or inconsistent?
If Kavanaugh’s account was contrary to common sense, I would argue, it should not be the basis for reasonable doubt.
The stakes in a criminal case are extraordinarily high. The last thing any prosecutor aims to do is file charges on unsubstantiated allegations or when they cannot meet the burden.
Kavanaugh might not be guilty of the assault alleged by Ford, but several integral steps must be taken before any reasonable prosecutor would reach a conclusion.
As a seasoned sex crimes prosecutor, Mitchell knows that.