Ford/Kavanaugh questioner: ‘I do not think a reasonable prosecutor would bring this case’

Ford/Kavanaugh questioner: ‘I do not think a reasonable prosecutor would bring this case’
Rachel Mitchell, Christine Blasey Ford (Image via The Daily Caller)

On Friday, it was widely reported that Rachel Mitchell, the Arizona sex crimes prosecutor who questioned Brett Kavanaugh’s accuser Christine Blasey Ford in the 27 September Senate hearing, said she wouldn’t bring a case based on Ms. Ford’s testimony.

On Monday, Mitchell published a memo in which she spelled out her reasons.  The reasons capture numerous discrepancies in Ford’s recounting of events, which Ford has now given in multiple settings and iterations.  Mitchell’s bottom line comes on page two of the memo:

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.

Bre Payton, perusing the Mitchell memo for The Federalist, identified 12 “massive inconsistencies” highlighted in it.  Some of them are well known already, such as the point that none of the potential witnesses named by Ford remembers the event at all, and the concern that the number of people she says were present at the party has changed several times.

Other inconsistencies have gotten less attention.  Most people who have been following the story probably understand the alleged attack to have come in the summer of 1982. But Ford has actually changed her claims about that, stating at different times – since early July – that the attack happened in her “late teens” or in the “mid-1980s.”  Mitchell summarizes what she had to work with:

Dr. Ford has not offered a consistent account of when the alleged assault happened.

• In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.”

• In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.”

• Her August 7 statement to the polygrapher said that it happened one “high school summer in early 80’s,” but she crossed out the word “early” for reasons she did not explain.

• A September 16 Washington Post article reported that Dr. Ford said it happened in the “summer of 1982.”

• Similarly, the September 16 article reported that notes from an individual therapy session in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.

Acknowledging that traumatic memories may be difficult to recover with certainty, it still seems odd that Ford’s account of a memory she has been working through since at least 2012 would change so much in different settings over the course of 10 weeks.

The difficulty in keeping her recollections straight seemed to manifest itself in Ford’s account of her polygraph test as well.  Prosecutor Mitchell notes that Ford couldn’t remember if it was administered the day of a funeral for Ford’s grandmother, or the day after it.  (The polygraph record shows a date of 7 August 2018.)  Mitchell also notes that a polygraph administered to a grieving person would be particularly unreliable.

Mitchell’s point #4, that Ford has changed the nature of the trauma she suffered, is a brief point and easy to miss.  But it is an important one, raising questions about the quality of both the legal and psychological advice Ford has been getting.

“When speaking with her husband, Dr. Ford changed her description of the incident to become less specific,” Mitchell notes. “Dr. Ford testified that she told her husband about a ‘sexual assault’ before they were married. But she told the Washington Post that she informed her husband that she was the victim of ‘physical abuse’ at the beginning of their marriage. She testified that, both times, she was referring to the same incident.”

It is undoubtedly true that people who have endured traumatic events may not refer to them in consistent language every time they talk about them.  But people who have been dealing with such memories in lengthy therapy, and who have been coached competently by their lawyers, typically do speak more consistently in formal testimony.

Mitchell highlights here, in effect, that at the very least, Ford was not prepared by her legal team to make a strong case for the allegation itself.  Although Ford supposedly hired Debra Katz for Katz’s expertise in sexual misconduct cases, the result in terms of practical preparation for testimony is not that impressive.  We might well conclude that Katz and fellow attorney Michael Bromwich were focused more on the politics of Ford’s allegations than on the allegations’ credibility or support by consistency and evidence.

That’s not the only professional standard the legal team may have failed to meet.  Mitchell brings up the team’s implied failure to inform Ms. Ford that the Senate Republicans were willing to fly their own team to California to take her testimony.  That discrepancy, noticed by others, could result in an inquiry and censure for the lawyers.

Indefatigable investigative Tweep “Undercover Huber” made his own summary of the numerous significant changes in Ford’s story since early July.  (Each of the tweets in this post is a thread, so be sure to click through to view everything.)

It’s a daunting presentation.  “Huber’s” (not his real name, of course) is a bit easier to survey than a more comprehensive tweet thread from Margot Cleveland, which Twitchy describes as “epic.”

A benefit of Cleveland’s treatments is that she shows how other factors – such as the memoir published by Kavanaugh’s high school friend Mark Judge (allegedly the second boy involved in the attack on Ford) – appear to have affected the way Ford tells the story.  Here, for completeness, is Cleveland’s thread on Mark Judge’s employment at a local Safeway store in 1982 – described years later in his book – and the apparent connection of that factor to Ford’s inclusion (or changing) of details in her account, as given to the Senate.

Cleveland’s ultimate point is that the “Safeway” reference suddenly became important in the Senate testimony, and seemed to be emphasized for the purpose of prompting a records check of Judge’s employment, which would then seem to corroborate Ford’s testimony, even though nothing else did.

Rachel Mitchell doesn’t mention the Safeway point at all, which seems wise. Perhaps she recognizes a baited hook when she sees one; perhaps she merely restricted her memo to the points necessary to make her case.  Which, again, as she indicates, has this bottom line:

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.

We don’t know what may have happened to Christine Blasey in high school.  (Ben Bowles offered one theory of continuing interest on Sunday.)  We need not – even should not – discount the possibility that something did happen.

But there is no case that what happened involved Brett Kavanaugh, or indeed that it involved any of the circumstances Ms. Ford has described since she contacted her U.S. representative and the Washington Post in July.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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