In a recent post on this blog, Kavanaugh’s Due Process Rights, we noted the importance in our democracy of maintaining an individual’s constitutional right to due process. We further explained that there is a universally accepted list of 10 procedures that due process requires. The sixth procedure being the right to cross-examine adverse witnesses.
In last week’s Senate hearing, Judge Kavanaugh was indirectly afforded that right when Rachel Mitchell, a non-partisan outside prosecutor from Arizona, questioned Dr. Ford about her sexual assault allegations against him. Since this is a nomination process and not a court proceeding, Ms. Mitchell’s questions were and will be the only cross examination of Dr. Ford’s very serious claims. The ongoing F.B.I. background investigation of Judge Kavanaugh will NOT include a cross examination of Dr. Ford or assess the credibility of her allegations. And the partisan mainstream media are AWOL in their fact finding duties, instead concentrating all their attention on Kavanaugh’s high school drinking and yearbook and other uncorroborated claims. Consequently, Mitchell’s professional assessment of Dr. Ford’s allegations would be instrumental in helping undecided Senators reach a conclusion on this SCOTUS nominee.
On Sunday, Ms. Mitchell stated in an unsolicited nine-page memo (included below) why she would not bring criminal charges against the Supreme Court nominee. Mitchell explained what she sees as weaknesses and inconsistencies in what Dr. Ford has said while describing an alleged assault by Kavanaugh at a home in suburban Maryland when they were teenagers in the early 1980s. Here’s Mitchell’s bottom line, based on her 25 years of experience in prosecuting sexual assault cases:
“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.”
We acknowledge something awful happened to Dr. Ford, but there simply is no corroborating evidence that Brett Kavanaugh was the perpetrator. The F.B.I. may uncover new evidence to the contrary, though it is unlikely. So we believe Ms. Mitchell’s professional and unbiased assessment should be accorded the highest weighting when Senators evaluate the merits of this allegation.
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