Bench Memos

Law & the Courts

The Presumption of Innocence Has Not Been Overcome

Now that the Senate Judiciary Committee hearings have concluded, let’s cut past the juvenile sideshows that marked much of the day, courtesy of Senate Democrats. Let’s now assess Dr. Christine Blasey Ford’s allegations against Judge Brett Kavanaugh and remember the context. This is a proceeding to determine whether a nominee should be confirmed to the Supreme Court. As I noted in my last post, it is important to give the accused the presumption of innocence, which applies both in courtroom and non-courtroom settings of all kinds.

Although this is not a court proceeding, it is useful to note the varying standards of proof that courts apply in different contexts. When someone faces a criminal charge, proof beyond a reasonable doubt is required for conviction. In some civil cases, clear and convincing evidence is required, which means the evidence presented must be substantially more probable to be true than not, and the trier of fact must have a firm belief or conviction in its factuality. That standard is stringent, but less so than the reasonable doubt standard applicable in criminal cases.

Then there is the standard that applies in most civil cases: the preponderance of the evidence standard. That means the evidence establishes an allegation is more than 50% likely to be true. That is the bare minimum required by any presumption of innocence, in any context, legal or nonlegal. For present purposes, let us assume that standard applies.

In the letter dated July 30, 2018, that Senate Judiciary Committee Ranking Member Dianne Feinstein withheld from her Republican colleagues for six weeks, Ford alleged that during “the early 1980’s,” during a gathering at a suburban Maryland home that included “me and four others,” Judge Kavanaugh “physically pushed me into a bedroom as I was headed for a bathroom up a short stairwell from the living room.” She continues that he and Mark Judge

locked the door and played loud music, precluding any successful attempts to yell for help. Kavanaugh was on top of me while laughing with Judge, who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state. With Kavanaugh’s hand over my mouth I feared he may inadvertently kill me. From across the room, a very drunken Judge said mixed words to Kavanaugh ranging from “go for it” to “stop”. At one point when Judge jumped onto the bed, the weight on me was substantial. The pile toppled, and the two scrapped with each other. After a few attempts to get away, I was able to take this opportune moment to get up and run across to a hallway bathroom. I locked the bathroom door behind me. Both loudly stumbled down the stairwell, at which point other persons at the house were talking with them. I exited the bathroom, ran outside of the house and went home.

Ford’s subsequent interview with the Washington Post established that she did not recall key details. She still did not know the date but narrowed the time frame from the early 1980s to the summer of 1982, when Kavanaugh was 17 and she was 15. She did not recall at whose home the gathering occurred, how it came together, or how she traveled to or from the home that evening. She admitted she and others drank beer that night. She said she told no one of the incident at the time or for three decades afterwards, until in 2012 she mentioned the incident in couples therapy with her husband.

Her psychologist’s notes, which she produced, do not mention Kavanaugh and note four boys were involved. She attributed that discrepancy to the therapist confusing four boys in attendance with the two in the room. That does not explain a further discrepancy in the statement accompanying her polygraph test dated August 7, 2018, in which she stated, “There were 4 boys and a couple of girls,” regardless of whether that statement counted herself. It was that number she ultimately presented in her Senate Judiciary Committee testimony, naming three boys and one other girl present and noting one other boy she could not identify. Upon questioning, she added another modification, acknowledging that contrary to the July 30 letter, she could not guarantee that there were not “a few other people there.”

Never mind whether it was a glitch in memory that caused different recollections of the number of attendees in the six years between 2012 and 2018. It is telling that the account changed in eight days between the July 30 letter and August 7 polygraph, and then again yesterday. Just imagine how much detail could be distorted over the course of 36 years.

Her testimony before the committee also backtracked from her allegation that Kavanaugh pushed her into the bedroom: she now states she was pushed from behind, so she could not be certain that Judge did not help him push her. That raises the question of how she could be sure Kavanaugh had pushed her at all, if it was from behind.

Moreover, Kavanaugh, Judge, and the other two people Ford named as at the gathering—Patrick J. Smyth and lifelong friend Leland Keyser—all denied to the Senate Judiciary Committee not only the allegation of assault, but also the very occurrence of the alleged gathering. If any of them had lied, they would have faced criminal punishment of up to five years imprisonment.

Kavanaugh for his part went a lot further than denying the gathering in both his Fox News interview and Judiciary Committee testimony. He asserted that he was a virgin during the operative period, that his drinking, while sometimes excessive, never led to blackouts, and that he never attended a party in the area Ford mentioned.

Kavanaugh produced a calendar from the summer of 1982 that is consistent with his denials, reflecting numerous other gatherings and much time out of town, including nearly every weekend that summer. He went over the calendar in excruciating detail before the committee. Interestingly, two girls’ names appear on the calendar more than once, and both of them were among the 65 women who knew him since high school and signed a letter attesting that “he has always treated women with decency and respect.”

Those signatories were among a mountain of character witnesses who also included every one of Kavanaugh’s 34 law clerks who were permitted by their employment to vouch for him, an additional letter signed by his female law clerks, and still another letter from 84 women who served with him during the Bush administration. Their characterizations of the judge are flatly inconsistent with Ford’s allegations. And that is far from an exhaustive list of those who vouched for him.

The number of character witnesses alone might be compelling if this were a he said/she said case. But they are arguably eclipsed by the unanimous denials of all four named alleged attendees at the gathering, including Ford’s lifelong friend.

The upshot is not only that no responsible prosecutor would file a criminal charge based on this allegation of 36 years ago. No competent attorney would even bring a civil action on this evidence, because it does not meet the preponderance of the evidence standard. While a strong argument can be made that a person’s reputation and nomination should not be taken down without stronger proof, such as clear and convincing evidence, that debate can wait for another day. This she-said/three-boys-and-another-girl-said-otherwise case does not meet the bare minimum standard demanded by a presumption of innocence.

If Democratic senators and staff are likewise competent—a smart assumption—you can bet they looked at these allegations and lacked confidence in their merits. That is why it made sense to hold off on pursuing this unless and until the scurrilous kitchen-sink arguments they pursued during Kavanaugh’s hearing failed, necessitating this desperate Plan B. And then string out Plan B as long as possible so that the nomination itself could languish into oblivion. (And as Plan B unravels, throw out even more desperate Plans C and D, regardless of whether every conceivable eyewitness debunks them or whether even the accuser admits not remembering.)

That would explain why someone among Democratic senators and staff leaked the Ford allegations to the press on the eve of the committee’s September 13 business meeting on Kavanaugh, well after Feinstein sat on them for six weeks, bypassing the committee’s process to deal with sensitive allegations. Recall that the ranking member did not even bother to attend the committee’s closed hearing on September 6, the proper forum to raise such an issue.

As committee counsel Rachel Mitchell established during her questioning of Ford, a cognitive interview conducted by a trained professional in an appropriate setting would have been the best way to get to the truth. Instead, Ford sought attorneys and took a polygraph exam. When the point was raised, even one of her attorneys sheepishly agreed with Mitchell that yesterday’s format in which she posed such questions in alternating five-minute rounds in a public hearing was not the best way to find out what happened.

Ford’s legal team had bizarrely taken umbrage at the news that Chairman Chuck Grassley was actually retaining a female attorney with experience questioning suspects in sex crimes. Why was that, if their goal was to seek the truth instead of grist for a political show in which Kavanaugh opponents could demagogue the spectacle of a bunch of male Republican senators interrogating Ford?

Ford’s attorneys would have served their client better to put a glimmer of daylight between themselves and Senate Democrats, with whom they agreed during every step they took to delay this process. That included last week’s gratuitous delay after Ford’s attorneys represented to the committee that their client was afraid of flying. Given that Chairman Grassley made clear that Ford’s testimony could be taken in any location, including near her residence in California, that did not make sense on its face. According to Ford’s hearing testimony, she was not even made aware of that option. She further testified that she flies often for work and leisure, and she just flew in order to testify in Washington yesterday.

The Democrats’ gutter tactics led us where we are now—a scenario in which the preponderance of the evidence actually suggests that a decent man has just been slandered as an attempted rapist.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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