WASHINGTON, DC - SEPTEMBER 14: Sen. Orrin Hatch (R-UT) speaks at a tax reform hearing before the Senate Finance Committee on Capitol Hill September 14, 2017 in Washington, DC. President Trump has indicated that tax reform should be a major legislative goal this fall. (Photo by Aaron P. Bernstein/Getty Images) Brett Kavanaugh speaks at the Senate Judiciary Committee hearing on the nomination of Brett Kavanaugh to be an associate justice of the Supreme Court of the United States, on Capitol Hill in Washington, DC, on September 27, 2018. (Photo by MICHAEL REYNOLDS / POOL / AFP) (Photo credit should read MICHAEL REYNOLDS/AFP/Getty Images) Supreme Court nominee Judge Brett Kavanaugh arrives to testify before the US Senate Judiciary Committee on Capitol Hill in Washington, DC, September 27, 2018. - Kavanaugh was to testify in front of the panel next on Thursday afternoon, having stridently rejected the allegations of sexual abuse by Blasey Ford and two other women in prepared remarks. (Photo by SAUL LOEB / POOL / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images) Supreme Court nominee Judge Brett Kavanaugh testifies before the US Senate Judiciary Committee on Capitol Hill in Washington, DC, September 27, 2018. - Kavanaugh was to testify in front of the panel next on Thursday afternoon, having stridently rejected the allegations of sexual abuse by Blasey Ford and two other women in prepared remarks. (Photo by SAUL LOEB / POOL / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images) Christine Blasey Ford swears in at a Senate Judiciary Committee hearing for her to testify about sexual assault allegations against Supreme Court nominee Judge Brett M. Kavanaugh on Capitol Hill in Washington, U.S., September 27, 2018. Erin Schaff/Pool via REUTERS Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, DC on September 27, 2018. - University professor Christine Blasey Ford, 51, told a tense Senate Judiciary Committee hearing that could make or break Kavanaugh's nomination she was "100 percent" certain he was the assailant and it was "absolutely not" a case of mistaken identify. (Photo by Gabriella Demczuk / POOL / AFP) (Photo credit should read GABRIELLA DEMCZUK/AFP/Getty Images) WASHINGTON, DC - SEPTEMBER 27: Senate Judiciary Committee member Sen. Lindsey Graham (R-SC) shouts while questioning Judge Brett Kavanaugh during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about claims by Christine Blasey Ford, who has accused him of sexually assaulting her during a party in 1982 when they were high school students in suburban Maryland. (Photo by Win McNamee/Getty Images) Rachel Mitchell, a prosecutor from Arizona, waits for Christine Blasey Ford, the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her at a party 36 years ago, to testify before the US Senate Judiciary Committee on Capitol Hill in Washington, DC, September 27, 2018. (Photo by SAUL LOEB / POOL / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images) Editor’s Note: Elie Honig is a former federal and state prosecutor and currently a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN. (CNN) — During last week’s confirmation hearing of Brett Kavanaugh, Senate Judiciary Committee Republicans enlisted Arizona prosecutor Rachel Mitchell to question Christine Blasey Ford about Ford’s allegation that Kavanaugh had sexually assaulted her. Mitchell cross-examined Ford at the hearing, questioning if Ford’s testimony was reliable and credible. Mitchell then issued a report to Senate Republicans, attacking Ford’s credibility and concluding that “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.” Courtesy Lowenstein Sandler Elie Honig In other words, according to Mitchell, it is more likely than not that Ford was mistaken when she testified that Kavanaugh sexually assaulted her. By providing cover for Republican senators unwilling to question Ford themselves, Mitchell has done a disservice to her fellow prosecutors and law enforcement agents, and to the victims she is duty-bound to protect. As an experienced sex-crimes prosecutor, Mitchell certainly understands that the highest calling of any law enforcement officer is to protect crime victims. The Arizona state constitution, which Mitchell is sworn to uphold, provides that victims have the right “to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.” It is unclear how Mitchell can reconcile her efforts to take down Ford – publicly and in coordination with inherently partisan politicians – with this obligation. A prosecutor’s obligation to protect victims is particularly strong in sex-crimes cases, which historically are badly underreported because victims often experience trauma, shame and distrust of the criminal justice system. Mitchell herself acknowledges in the report that “[d]elayed disclosure of abuse is common.” Recognizing this hard reality, law enforcement agencies have invested millions of dollars in modernizing intake services to give victims the best possible comfort and care. Mitchell’s very public campaign to discredit Ford undercuts the efforts of law enforcement agencies across the country to let sex crimes victims know that, if they do come forward, they will be heard, respected and protected. This is not to suggest that prosecutors should take everything a victim says at face value or that prosecutors should refrain from questioning victims on their accounts. In fact, a good prosecutor would ask Ford some of the same questions that Mitchell asked on the floor of the Senate Committee. The difference, of course, is that a prosecutor should ask those questions in the privacy and comfort of a proper victim intake facility. Mitchell, by contrast, cross-examined Ford publicly on the floor of the Senate Judiciary Committee, with tens of millions of people watching on television. Notably, Mitchell did not choose this format – the Republicans on the committee dictated the terms. And they only made it worse by not allowing her to cross-examine Kavanaugh. Ultimately, though, Mitchell’s performance throughout the Kavanuagh hearings sends the exact wrong message to sex-crime victims. Imagine the reaction of a sex-crime victim who watched Mitchell cross-examine Ford, or who read Mitchell’s written report to the Senate Republicans. That victim understandably would wonder: Is this what happens if I come forward? Is this what prosecutors will do to me? Nothing empowers sex-crime victims to come forward like seeing other victims do the same. As Democratic Senator Patrick Leahy said during last week’s hearing, “bravery is contagious.” Indeed, since Ford’s testimony, countless women of all stations have come forward as victims of sex crimes. The shame of it is that so many more might have seized the moment to come forward if not for the chilling effect of Mitchell’s performance. Beyond the problematic message sent by Mitchell, her report simply does not stand up to scrutiny. Prosecutors take pride in being apolitical and in seeking truth evenhandedly, regardless of politics. But Mitchell has been baldly partisan. At the hearing, she did the bidding only of the Senate Republicans on the committee, and she addressed her report not to the Senate itself but only to “All Republican Senators.” The report spends three of its eight pages arguing that “[t]he activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account.” The report also suffers because Mitchell draws conclusions on a patently insufficient factual record. The report is based on no law enforcement investigation whatsoever. Rather, the report relies largely on ambiguous written submissions made to Congress, which are not subject to meaningful testing by law enforcement questioning or follow up. No reasonable prosecutor would draw definitive conclusions in the complete absence of a law enforcement investigation. At the same time, Mitchell conspicuously focuses her fire only one way: against Ford. The report scrutinizes Ford’s fear of flying, her academic performance in high school and whether she took a polygraph exam on the day of or the day after her grandmother’s funeral. Yet the report does not even mention Kavanaugh’s evasive and implausible testimony about core questions such as whether he ever drank to the point of blackout during the relevant period. Finally, Mitchell’s report fails the straightforward common-sense test. Judges routinely instruct jurors not to abandon their common sense when they assess the evidence in a criminal trial, and the same should hold true in any fact-finding endeavor. For example, Mitchell takes Ford to task for “chang[ing] her description of the incident to become less specific.” Mitchell argues that Ford told her husband about a “sexual assault” before they were married, but then told the Washington Post that she had told her husband she had been a victim of “physical abuse.” Get our free weekly newsletter Sign up for CNN Opinion's new newsletter. Join us on Twitter and Facebook Mitchell fails to consider the possibility that Ford simply used different terms – both of which accurately describe the alleged assault – when speaking about the incident on two different occasions. Mitchell also glosses over the fact that both terms – “sexual assault” and “physical abuse” – accurately describe Kavanaugh’s alleged attack on Ford. Inexplicably, Mitchell fails to address the most important question: what possible reason would Ford have had to fabricate an attack and to tell her husband about that attack many years before Kavanaugh ever came into the public eye? Mitchell undoubtedly has served the public well throughout her long career as a sex-crimes prosecutor. She should know better than most how difficult it is for victims to come forward and how hard prosecutors work to foster their trust. In her performance over the past week, however, Mitchell – in service of a baldly partisan cause – has undermined the efforts of law enforcement to protect sex-crime victims and discouraged those victims from coming forward to bear witness against their attackers.<doc-sep>Bolstered by a new memo questioning the reliability of Brett M. Kavanaugh’s chief accuser, Republican leaders on Monday set a firm deadline for the FBI to finish its investigation and for the Senate to vote this week on elevating Judge Kavanaugh to the Supreme Court. The memo, written by the sex-crimes prosecutor Republicans hired to question Christine Blasey Ford and Judge Kavanaugh at last week’s dramatic hearing, points to numerous inconsistencies and lack of corroboration for Ms. Blasey Ford’s account of the sexual assault she says she suffered when they were in high school 36 years ago. Rachel Mitchell, the prosecutor, said not only wouldn’t she bring a criminal case based on Ms. Blasey Ford’s account, but she also doubts it would even be a winning case in a civil suit, where the standards of proof are lower. Ms. Mitchell said the case is even weaker than “he-said, she-said” because it’s completely uncorroborated. Her memo says Ms. Blasey Ford’s accounts have changed from her initial tip to The Washington Post in early July to a letter she wrote to Sen. Dianne Feinstein, California Democrat, in late July to her interview with The Post in September and then her testimony. That includes a shifting date for the house party where she says the sexual assault occurred, as well as the number and genders of other people she says were at the gathering. “Dr. Ford has struggled to recall important events relating to her allegations, and her testimony regarding recent events raises further questions about her memory,” Ms. Mitchell concluded. With the FBI now investigating, Democrats said they want not only Ms. Blasey Ford’s allegations but also those of two other women who have accused Judge Kavanaugh of sexual misconduct to be examined. They have suggested at least two dozen people they say should be interviewed before the FBI wraps up its investigation. President Trump, speaking at the White House, said he has asked the FBI to look at any allegation “within reason,” but he added that it must be done quickly because ambush accusations are unfair to Judge Kavanaugh. Republican leaders in the Senate agreed and said they will soon force final action. “The time for endless delay and obstruction has come to a close. Judge Kavanaugh’s nomination is out of committee. We’re considering it here on the floor,” said Senate Majority Leader Mitch McConnell, Kentucky Republican. “We’ll be voting this week.” It was not clear what that meant for the FBI and for timing of a final vote. Under Republicans’ original plans, Judge Kavanaugh was to be sitting on the high court Monday morning, when the justices’ 2018-2019 term began. Instead, lawmakers delayed a committee vote after Ms. Blasey Ford’s allegations surfaced. Then, after powering the nomination through the panel on Friday, Republicans agreed to put off a floor vote while the FBI investigated. That delay is supposed to last one week. Democrats said timing is less important than thoroughness. They have asked that the FBI interview Ms. Blasey Ford, Deborah Ramirez, who says the judge exposed himself to her at a college party in the 1980s, and Julie Swetnick, who has said she suspects the judge may have been involved in gang rapes at high school parties in the early 1980s, though she cannot be more definitive. Also topping the list of people they say should be interviewed is Mark Judge, a friend of Judge Kavanaugh’s from his high school days. Ms. Blasey Ford says Mr. Judge was in the bedroom at the house party and ended the assault when he jumped on top of her and Judge Kavanaugh. Mr. Judge’s attorney said Monday that Mr. Judge was interviewed by the FBI but that interview wasn’t complete. Senate Minority Leader Charles E. Schumer of New York said Democrats want to see a full list of parameters that the FBI has been given for its investigation, fearing Republican attempts to circumscribe the investigation. He said agents must brief senators on what they learned before the Senate takes any final vote on Judge Kavanaugh. “Whether you are for or against Judge Kavanaugh going to the Supreme Court, it will only benefit the country if the investigation is regarded as fair, clear and not constrained, particularly by partisan means,” Mr. Schumer said. “Democrats are not interested in delay for the sake of delay. This can all be completed quickly, but it must be done right.” Mr. McConnell said he doubted Democrats, most of whom said they opposed Judge Kavanaugh well before there was any hint of sexual assault allegations, will ever be satisfied. He predicted they would oppose Judge Kavanaugh for his acknowledged affinity for beer, or his indignant denunciations at last week’s hearing of the accusations against him — and Democrats’ treatment of him. “Their goal posts are shifting,” Mr. McConnell said. Republican senators said they are not sure whether they have the votes to confirm Judge Kavanaugh and that the FBI’s report will be the determining factor. They said the public will have to be informed about what the FBI finds. “There is going to have to be some sort of announcement about what this supplemental investigation has yielded, I think, because now these allegations have been made so far unproven,” said Sen. John Cornyn of Texas, Mr. McConnell’s top lieutenant. If Democrats’ goal posts are shifting, so is public opinion. The latest Quinnipiac University poll showed 48 percent of voters said Judge Kavanaugh shouldn’t be confirmed, up 6 percentage points since the previous Quinnipiac poll. Voters believe Ms. Blasey Ford over Judge Kavanaugh 48 percent to 41 percent. Both Democrats and Republicans called her testimony last week compelling. She said she was “100 percent” certain it was Judge Kavanaugh, a student at a neighboring high school, who pushed her into a room during a party, groped her, attempted to strip off her clothes and stifled her cries for help. She testified that she remembered him and Mr. Judge laughing at her, both during and after the assault, “pinballing” off the hallway walls while returning to the party. Ms. Mitchell, the sex-crimes prosecutor, said in her memo to senators that the case was not so compelling. Ms. Mitchell pointed out that Ms. Blasey Ford “struggled to identify Judge Kavanaugh” by name until decades after the attack. Neither the couples therapy notes from 2012 where she says she first identified Judge Kavanaugh, nor individual therapy notes from 2013 contained the name, Ms. Mitchell said. Russell Ford, Ms. Blasey Ford’s husband, told The Post that he remembers his wife identifying Judge Kavanaugh during their 2012 therapy. But Ms. Mitchell questioned that, saying Judge Kavanaugh’s name was in the news at the time as a potential Supreme Court pick for Republican presidential nominee Mitt Romney. Ms. Mitchell also questioned the validity of the polygraph exam Mr. Blasey Ford arranged to take in August and wondered about the woman’s motivations for coming forward in the manner she did. The prosecutor also suggested that Ms. Blasey Ford’s account was likely affected by pressure from her attorneys and from Senate Democrats. While those conclusions echo Republicans’ takeaways from the hearing, Ms. Mitchell said she wrote the memo and her thoughts were not dictated or influenced by anyone. Sign up for Daily Newsletters Manage Newsletters Copyright © 2021 The Washington Times, LLC. Click here for reprint permission.<doc-sep>
When prosecutor Rachel Mitchell was hired by Republicans on the Senate Judiciary Committee to conduct the questioning of Christine Blasey Ford, the woman who has accused Supreme Court nominee Brett Kavanaugh of sexually assaulting her when she was a teenager, it seemed odd. As a state prosecutor for three years and a federal prosecutor for 25 more, I knew that job to be about holding a person who committed a crime accountable and finding the truth. But that was not Mitchell’s job last week. Her job was to attempt to dent a victim’s credibility and serve as a “female assistant” cut-out for the all-male, all-white Republican side of the committee. By most impressions, Mitchell failed to do any significant damage to Ford’s account of events during Thursday’s Senate testimony. In an apparent effort to change that perception, Mitchell issued a report on Sunday that was addressed not to the full Judiciary Committee, or to the Senate at large, but instead to “All Republican Senators.” In her report, Mitchell does what no prosecutor should do—she attempts to discredit the victim of a sexual assault. Her effort is so misleading, it approaches farce. Mitchell begins her offensive by falsely claiming that Ford “struggled to identify Judge Kavanaugh as the assailant by name.” She relies on the fact that notes from a 2012 therapy session, when Ford disclosed that she was sexually assaulted, did not include his name. What Mitchell fails to mention is that Ford told her therapist that her attacker was “from an elitist boys’ school” who went on to become “highly respected and a high-ranking member of society in Washington.” Ford’s description fits Brett Kavanaugh to a T. More importantly, an “experienced sex crimes prosecutor” like Mitchell should understand that Ford may have done what many sexual assault victims do—made a considered decision not to identify her attacker by name. Later in 2012, Ford told her husband that Brett Kavanaugh was the person who had assaulted her. Next, Mitchell falsely claims that Ford “changed her description of the incident.” The “change” that Mitchell says undermines Ford’s credibility was Ford having once described the Kavanaugh incident as “sexual assault” and once as “physical abuse.” Would you call a witness a liar because he recounted an event by once saying he was going to his “house” and once saying he was going to his “home?” This is what Mitchell seeks to do. Her next allegation is that Ford does not remember “key details of the night in question.” Details like who invited her to the party, how she got there, and what method of transportation she used to get home. As Ford describes the assault, Kavanaugh forced her into a bedroom, covered her mouth when she tried to scream, and attempted to remove her clothes so he could rape her. In the context of an attempted rape, who invited Ford to the party hardly seems like a “key” event. And any prosecutor who deals with victims of crimes knows that the mind often recalls the trauma itself, leaving the insignificant details blurred in its wake. Mitchell’s effort is so misleading, it approaches farce. In her next line of attack, Mitchell claims that the other people at the party where the alleged assault occurred do not support Ford’s version of events. Ford has identified at least three other people at the party. Ford has said that two of the people, Leland Keyser and Patrick Smyth, would have had no idea the assault occurred because they were on a different floor of the house and would not have been able to see or hear the assault. From their perspective, there was nothing that would distinguish that party from any of the countless other parties they may have attended in their teens. Mitchell includes part of a statement from Keyser in her report, but she edits out the part where Keyser says that although she does not remember the specific party from 36 years ago, she believes Ford and thinks she is telling the truth. According to Ford’s description of events, the third person at the party, Mark Judge, was an eyewitness to the assault. In a written statement to the Judiciary Committee, Judge said both that he has no memory of, and never saw, the incident Ford describes. Witnesses often say “I don’t remember” when they do not want to provide evidence against a friend or family member.