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Kavanaugh Is Innocent Until Proven Guilty — Not the Other Way Around

Hans von Spakovsky · Oct. 6, 2018

Confused by the decades-old allegations of sexual assault made against Supreme Court nominee Judge Brett Kavanaugh by Professor Christine Blasey Ford?

That’s understandable. Millions of people are.

It’s impossible to say at this point with 100 percent certainty what did or did not happen between Ford and Kavanaugh some 36 years ago, when both were in high school.

But one way to get a better understanding of the conflicting claims by the professor and the judge is to read the assessment of Ford’s allegations sent to the Senate Judiciary Committee by Rachel Mitchell, the career sex-crimes prosecutor from Arizona hired by the committee to question Ford at a hearing last week.

Mitchell’s conclusion after both Ford and Kavanaugh testified before the Judiciary Committee was that no “reasonable prosecutor would bring this case based on the evidence.”

Ford alleged that a drunken Kavanaugh forced her onto a bed at a house party, tried unsuccessfully to take off her clothes, and held his hand over her mouth to prevent her from screaming. She characterized this as an attempted rape and said she feared Kavanaugh might accidentally kill her.

Kavanaugh firmly and repeatedly denied that he ever sexually assaulted Ford or anyone else in his entire life.

Mitchell wrote in her assessment of the contradictory testimony that it is “incredibly difficult to prove” a “he said, she said” case. And the veteran prosecutor said Ford’s case is particularly weak because the witnesses Ford identified to her alleged attack in about 1982 have all “either refuted her allegations or failed to corroborate them.”

Consequently, based on her 25 years of experience as a prosecutor, Mitchell said the allegations against Kavanaugh are not credible enough for a criminal prosecution. She also said the allegations don’t even meet the lower standard of proof used in civil cases.

In a criminal case, the accused must be proven guilty “beyond a reasonable doubt.” In a civil lawsuit, claims against a defendant must be “sufficient to satisfy the preponderance-of-the-evidence standard,” Mitchell said.

Our entire justice system — both criminal and civil — requires that accusations against someone must be proven to some degree before the accused faces criminal or civil penalties. The accused is not required to prove that he or she did not engage in wrongdoing — in most cases that’s an impossible task.

This presumption of innocence is the foundation of our liberties and protects us all from wrongful prosecution. Without it, any of us could be convicted and imprisoned on the word of a single person or a government official without a shred of corroborating evidence or testimony.

Police states operate like this. America never has and hopefully never will. Our legal system has always made protecting the innocent the highest priority.

As Benjamin Franklin wrote in 1785: “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.”

In her report, Mitchell identified many problems with Ford’s allegations against Kavanaugh.

Between Ford’s interviews with The Washington Post and her letter to Sen. Dianne Feinstein, D-Calif., Ford’s claim of when she was sexually assaulted by Kavanaugh changed from the mid-1980s, to the early 1980s, to the summer of 1982, Mitchell pointed out. Ford’s statements of how old she was at the time of the alleged sexual assault varied from her late teens to when she was 15.

While “it is common for victims to be uncertain about dates,” Mitchell wrote, Ford “failed to explain how she was suddenly able to narrow the time frame to a particular season and particular year.”

Moreover, Ford “struggled to identify Judge Kavanaugh as the assailant by name,” according to Mitchell. Ford did not give the name of her alleged assailant to her marriage therapist, according to notes from the sessions in 2012 and 2013, when Ford first told anyone she had been sexually assaulted. And Ford has refused to give the Judiciary Committee access to her therapist’s notes.

That is not the only thing Ford can’t remember. She “has no memory of key details of the night in question — details that could help corroborate her account,” Mitchell wrote.

Ford doesn’t remember who invited her to this supposed party or how she heard about it. She doesn’t remember how she got to the party. She doesn’t remember in what house the alleged assault occurred or where it was even located “with any specificity,” Mitchell wrote.

Additionally, Ford can’t remember how she got from the party back to her own house — a key detail at a time before cell phones when “arranging a ride home would not have been easy,” Mitchell wrote.

But more than three decades later, Ford “remembers small, distinct details from the party unrelated to the assault,” such as that she had “exactly one beer at the party,” Mitchell wrote.

Ford also has memory problems about recent events. Mitchell wrote that Ford “struggled to remember her interactions with The Washington Post,” including whether or not she showed the Post reporter her therapist’s notes or just Ford’s own summary of those notes.

Ford also originally said she wanted her story “to remain confidential” and yet she called the tip line at the Post. When Ford spoke to a Post reporter this “was the first person other than her therapist or husband to whom she disclosed the identity of her alleged attacker,” Mitchell wrote.

Most significantly, the three other people — in addition to Kavanaugh — whom Ford identified as having attended the supposed party where she was allegedly attacked have all “submitted statements to the Committee denying any memory of the party whatsoever,” Mitchell wrote.

These three people included Ford’s lifelong friend, then a teenage a girl and now named Leland Keyser, and two boys. Keyser’s lawyer even told the Judiciary Committee that Keyser doesn’t know Kavanaugh and “has no recollection of ever being at a party or gathering where he was present, with, or without” Ford.

Ford has stated there was another boy at this party, but can’t remember who it was, and no one has come forward.

Ford has also not “offered a consistent account of the alleged assault,” Mitchell wrote.

Mitchell detailed how Ford’s claims about what happened, who was involved, and who was at the party have been inconsistent and have varied in her testimony, her account to The Washington Post, and her letter to Sen. Feinstein.

Mitchell provided a timeline to show that the “activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account.”

Mitchell’s also wrote that Ford’s description “of the psychological impact of the event raises questions.”

For example, the date of the Judiciary Committee hearing was delayed because Ford said her anxiety, claustrophobia and post-traumatic stress disorder “prevent her from flying,” Mitchell wrote.

Yet Ford admitted during her testimony that she flew to Washington to testify at the hearing and that she flies “fairly frequently for hobbies and … work,” including trips to Hawaii, French Polynesia and Costa Rica.

Ford testified that her alleged attack by Kavanaugh led her to struggle academically in college, but Mitchell noted that “she has never made any similar claim about her last two years in high school,” directly after the supposed assault.

And Mitchell wrote that “it is significant that (Ford) used the word ‘contributed’ when she described the psychological impact of the incident to The Washington Post.”

Why? Because using that word rather than “caused” suggests that “other life events may have contributed to her symptoms,” Mitchell stated.

By the way, the timeline also shows Sen. Feinstein and her staff refused to participate in the questioning of Kavanaugh by the Judiciary Committee in follow-up calls to the nominee on three separate occasions in September. So much for wanting to get to the truth of the matter in an objective investigation.

Where does this all leave us?

Even before Ford’s allegations surfaced, most Senate Democrats were determined to deny President Trump the opportunity to appoint a justice to the Supreme Court who will strictly follow the original meaning of the Constitution.

A handful of senators could be swayed by last week’s testimony and the FBI report on the allegations against Kavanaugh — and that handful will determine whether he is seated on the Supreme Court.

But if you believe in the presumption of innocence, based on what we know now it would be unfair to assume that Kavanaugh is guilty of sexual assault and to deny him a seat on our nation’s highest court based on uncorroborated accusations.


Republished from The Heritage Foundation.

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