Kavanaugh-Ford Testimony: Lost Are Due Process and The Presumption of Innocence

I was interviewed by the Boston Globe yesterday about the testimony that unfolded before the U.S. Senate Judiciary Committee surrounding Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. Before going any further, I’m going to say something very sincerely, and I want my readers to know that mean it 100 per cent: I have all the sympathy, and yes, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman.  Young or old.   Any background whatsoever.   But when such accusations are made, and the accused’s life and welfare are on the line – never mind the stakes involved in the instant matter with the Supreme Court such accusations must be supported by persuasive, compelling testimony produced by the critical procedural element of cross-examination. If not, they remain what we have here, now: Uncorroborated accusations.

Let me also get something else – something very important – out of the way now: I direct this specific comment to the radical elements of the #MeToo movement, who denigrate and assassinate the characters and motives of anyone who dares to disagree with them, or call into question their motives about matters involving allegations of sexual abuse:  Such people are immediately maligned by militant feminists as being fossilized, backward thinking relics of 50+ years ago – the intellectual and social equivalents of knuckle-dragging troglodytes. And one word never spared in their attacks on anyone who has the audacity to disagree with them?  “Misogynist”, of course.  (“Women-hater” is often thrown in for good measure.)  To those militants I say:  Save it – That won’t work with me. That’s because I see people as gender-neutral. I don’t judge people based on gender, or ethnicity, or anything else other than their deeds and actions; in the words of MLK, “The content of their character.”  Trite, isn’t it? But I happen to firmly believe in that ideal.

Dr. Christine Blase Ford gave some emotionally riveting testimony yesterday. From my distance, it seems quite possible that something happened to her in her past, involving some kind of sexual assault. And if that is so, anyone with any decency, compassion or empathy would feel for her. But amidst all the drama raised by her testimony, here are facts that collectively pose inescapable problems with her testimony:

1) Not one person – not even the four (4) individuals that Dr. Ford herself claimed were present at this party 36 years ago – has corroborated her story. Not one single person.

2) Judge Kavanaugh has submitted evidence that he was not only not at the alleged party in question, but that he was nowhere anywhere near the alleged location.

3) None of the other persons who were at this party at the time – whoever they might be – have come forward to say that he/she/they saw Brett Kavanaugh at that party.  Not even to say that Kavanaugh was even seen at the party – never mind that he was seen doing anything in particular with anyone in particular.  Judge Kavanaugh has repeatedly said and testified that he was never at that gathering.  Does it stand the test of reason or common sense that a federal judge would make such a bold declaration under oath, if at any time some teenager at that party (now obviously in their fifties) could potentially now step forward and say “I was at that party and I saw Brett Kavanaugh there”?   All it would take would be one single person to say that, and Kavanaugh’s entire life would be over – -including his judicial and legal career; his family life; everything.  Think about that.  Further, the other high school student that was alleged to have been present at this assault – Mark Judge – has in writing stated that he has no memory of Dr. Ford’s account.

4) Over one hundred people who have known Judge Kavanaugh over the course of more than 30 years – through high school, college, law school, the White House, and the federal judiciary – have signed written letters asserting that all of them have never witnessed the type of behavior or personality that Dr. Ford alleges. Indeed, all of them have attested to Judge Kavanaugh’s upstanding views or and treatment of women.

5) Regarding the repeated calls by Democrats on the Judiciary Committee for an FBI investigation of Judge Kavanaugh: His background, character and behavior have already been investigated by the FBI, for several previous high-profile federal positions he has held in his career – whether in the White House or the federal judiciary. Repeated calls by Democrats for a repetition of this, and the agreement reached Friday (Sep. 28) to delay the full Senate vote for an additional week to involve the FBI, appear to me as a criminal defense attorney, to be nothing more than yet another delay tactic, in the Democrats’ hopes of re-taking a Senate majority very soon.

So much of this literal circus has taken place in the context of scare tactics so powerful that even all 11 Republican members of the Judiciary Committee actually agreed to be effectively silenced from asking Dr. Ford any questions directly.  Why?  Becuase of the terror inside every one of those Senators, at what the #MeToo “activists” would do to them politically back in their home states.  Somehow, someway, that was rapidly accepted as being “natural”, or “OK”, – and as a Boston criminal defense attorney, I can assure you: 11 U.S. Senators agreeing to have duct tape metaphorically put over their mouths at Dr. Ford’s testimony, was NOT “OK”, and should never have been done. The reason this should never have been done is obvious:  In a situation such as this, where allegations of criminal conduct are alleged by one person against another – let alone against a U.S. Supreme Court nominee – the truth must be brought out – and the best (and really only) way to do that is through direct examination followed by cross-examination. Democrat senators were allowed to freely ask any questions that they wanted of Dr. Ford – but Republicans foolishly agreed to allow their voices to be stifled – with only one person asking some questions on their behalf. Notably, this person (Rachel Mitchell) was extremely ineffective in trying to do so, asking Dr. Ford only the most softball of questions, and in general treating Dr. Ford with kid gloves; as though her story had already been accepted as fact.  Ms. Mitchell, in my opinion, did an extremely ineffective job at this.

Mitchell’s questioning of Ford seemed disjointed, disorganized, and in general, very softball. Her questions for Kavanaugh, however, were very different. She provided him a definition of “sexual behavior,” noting that it “includes rubbing or grinding your genitals against somebody, clothed or unclothed.” She asked Kavanaugh about his drinking habits, and whether he had ever woken up in a “different condition” or with “fewer clothes” than when he remembered going to sleep.  She repeated the allegations Ford had made.  How questions are phrased and framed in sexual assault situations is critical. Some examples:  How will the questioning of the alleged victim begin? Will it be in an environment where the accuser is allowed to respond that he/she doesn’t remember things?  Is the attorney’s attitude one of: “I’ve made my mind up: This is a victim I am bringing before a fact-finding body” or is it a neutral, unbiased one, trying to find the truth?

What actually happened yesterday with this Rachel Mitchell? She actually opened her questioning of Dr. Ford with an expression of sympathy. “The first thing that struck me from your statement this morning was that you were terrified,” she told Ford. “I just wanted to let you know, I’m very sorry. That’s not right.”   Talk about bias and pre-conceived conclusions!  Next, the ground rules that she then set out: Ford could ask for clarification of any question. She could correct any misstatements. And it was okay if she didn’t remember everything.  Yet while Democrat senators interjected repeatedly to support Ford with statements of belief and encouragement, the Republicans sat there, stifled out of fear of the #MeToo movement, and what the members of that movement could do to those Senators back in their home states.  What I saw in the Senate Judiciary Committee yesterday was an entirely imbalanced, de-constructed and distorted process of examining the two critical witnesses brought before it.  In this critical respect it was, in several ways, shameful.

It has been said by many Democrats that “This is not taking place in a courtroom, so the normal courtroom rules of procedure (such as cross-examination) don’t apply.” While this process is not taking place in a courtroom, it is taking place in another court – the court of public opinion – and if the truth is not ferreted out through effective cross-examination of the witnesses, the truth will likely not come out.

Our ancestors who founded this country literally died for the critical legal and constitutional rights of due process and the presumption of innocence: They went to the gallows for these rights – they were tortured to death for these rights – they fought in sickeningly violent wars to preserve these precious legal rights. And those rights are now being sacrificed themselves on the altar of politics and political correctness.

A dark day in this country’s history.

The one-week delay in the full Senate vote to either confirm Judge Kavanaugh or not, that Arizona Sen. Jeff Flake proposed earlier today and that President Trump agreed to, will almost certainly only extend this circus even below the level it has already sunk to.  Do not be surprised if Dr. Ford suddenly does a media tour of sorts between now and then, stoking the fires even hotter than they are now, whipping the public and the U.S. Senate members into a terrified frenzy, that if they dare to support Judge Kavanaugh, they will be roundly punished when their next election rolls around.  And do not either be surprised if one or more additional “victims” suddenly surface.  The liberal Democrats driving this circus, would love to see that – now that they have brought this sad, uncorroborated spectacle to the low level they have — after Sen. Dianne Feinstein intentionally held release of these accusations, mere days prior to what appeared to be all but a certain vote of Kavanaugh’s confirmation.  This makes “dirty tricks” seem like innocent child’s play.   I hope that people in the home states of all ten Democrat senators on this Committee, realize the type of people that are supporting.  Bu then again, I doubt that hope is justified.