Prosecutors look for corroborating evidence
Five prosecutors point out that prosecutors deal with conflicting claims all the time.
While some argue that the truth about this incident will come down to a “he said, she said” situation, that’s not how it looks to us. Prosecutors and investigators are confronted with these scenarios frequently and don’t just throw up their hands and say, “We can’t decide.” Instead, prosecutors look for corroborating evidence — and there are strong indications already that Ford is telling the truth about her attack. Here are some of those indicators:
First, there is corroboration. Ford’s therapist’s notes in 2012, provided to The Washington Post, generally record her account of the attack. To believe that this is a made-up tale to prevent Kavanaugh’s confirmation, Ford would have had to plant the seeds of this story in 2012. That makes no sense.
Second, while not determinative, the fact that Ford passed a polygraph administered by a former FBI agent lends credence to her claims. Polygraph exams are inadmissible in court because they are not always reliable, but the FBI and other law enforcement agencies frequently use polygraph tests to assess the credibility of witnesses and defendants.
In addition, consider the motives of Ford, who by all accounts is not a particularly politically active person, to go public with allegations of sexual assault. It appears that she did not want to speak publicly at all, but that reporters discovered her identity and pursued her. Ford knew that she would be personally attacked in front of her children, colleagues, students and friends. There is no reasonable explanation for why she would subject herself to such humiliation other than the reason she has given: that she felt she had a duty as a citizen to speak up.
A duty as a citizen with a particular kind of knowledge that should be very relevant when it comes to a Supreme Court candidate, especially one who will end abortion rights.
Ford’s delay in coming forward isn’t evidence that she’s lying, because there are other reasons for delaying, ones these prosecutors are familiar with.
If you are still inclined to believe that Ford is lying, ask yourself: Why would she create a defense witness by identifying Mark Judge, who was and still is indisputably a friend of Kavanaugh’s, as being present and participating in this attack? Why would she place at the scene an individual who could, because of loyalties to his friend, contradict her account if she were making this up? She wouldn’t.
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Some have said that because these alleged acts occurred so long ago, when Kavanaugh was a teenager, they should not be disqualifying — even if true. We strongly disagree. In our criminal justice system, people 17 years old (and younger) are held accountable for acts they commit, sometimes in very harsh ways. It is simply not acceptable for one of the people tasked with overseeing that criminal justice system to not be held to the same standard.
Additionally, attempted rape is not simply an act of youthful recklessness, as some have cautioned. Few of us have such serious crimes in our pasts — and those who have committed them should not expect to easily be confirmed to posts like Supreme Court justice.
The five prosecutors are Mimi Rocah, Barbara McQuade, Jill Wine-Banks, Joyce White Vance and Maya Wiley.
I haven’t seen the apologists trot this one out yet, but based on discussions about Shermer, Krauss, et al, I’m sure it’s coming: “you can’t vote no on his nomination based on this unless there is evidence beyond a reasonable doubt of his guilt!”
Bullshit. “Guilt beyond a reasonable doubt” is the legal standard used in criminal trials. There’s no good reason to apply that standard here.
First, there’s no need to “borrow” any particular legal standard at all. A Senate confirmation isn’t a legal trial at all, let alone a criminal one. Kavanaugh doesn’t have any real legal rights here whatsoever. He’s not entitled to due process on his Supreme Court nomination. (And if you think he is, I have two words for you: Merrick. Garland. He wasn’t even given a hearing or a vote, let alone a yes vote, based on no wrongdoing other than having been nominated by a black Democratic president.)
Second, even if you want to look to legal standards, the law has plenty of standards, of which “beyond a reasonable doubt” is the strictest. There’s “clear and convincing evidence,” there’s “preponderance of evidence” (which is sufficient to award a judgment against you even if it bankrupts you), there’s “probable cause” (which is enough to allow the police to show up at your home or place of business and tear the place apart looking for evidence — and you don’t even get a chance to argue the matter) and “reasonable suspicion” (which allows a cop to stop and frisk you).
The law uses a standard that corresponds to the stakes. “Beyond a reasonable doubt” is reserved for those instances where someone is potentially being deprived of life or liberty. As the old saying goes, better to let ten guilty men go free than to imprison one innocent man. But why would that standard apply to an appointment to one of the highest jobs in the land? Is it really “better to allow ten attempted rapists on the Supreme Court than to deny one innocent man the honor?” (I suspect that for many people, the answer is yes: the prospect of a man being denied something on the word of a woman is so horrifying that it outweighs any other harms.)
To put it another way: what standard would you apply if you found out that a babysitter you were considering had been accused of child molestation? How many parents would say “well, he/she hasn’t been convicted….” or “well, it was just a he said/she said situation”? Would you really insist that the evidence be overwhelming before you moved on to one of the many other candidates?
Yale churns out ~200 graduates a year; Harvard another ~500+, and rumor has it there are actually other law schools in the country capable of producing Supreme Court justices. Even if you limit yourself to the subset that is Federalist Society-approved, that’s still a lot of options. Even conservatives weren’t claiming that Kavanaugh was clearly the “best” candidate on the shortlist, whatever “best” means in this context. It shouldn’t require overwhelming evidence of his unfitness (and I think we had plenty even pre-rape allegations) to say, “no thanks. Next!”
[…] a comment by Screechy Monkey on Prosecutors look for corroborating […]
I predict that when the prosecutors agree with the accusor, someone is bound to claim that they’re biased because they’re women.