Rachel Mitchell, the Creampuff Prosecutor

Maybe the optics required a female special counsel.  But wasn't it possible to find someone who understands that the job of a prosecutor is to undermine the credibility of any witness testifying against the victim he's supposed to be representing? 

In the case of the alleged event sketchily recalled by Christine Ford, this shouldn't have been difficult.

Any good attorney does not stick to scripted questions and takes advantages of openings provided by witnesses.  This is something Rachel "Creampuff" Mitchell failed to do.

The special counsel needed to use all her time to question Ford about five things: 

1. How well she knew Brett Kavanaugh
2. The alleged assault
3. The process by which she recovered the memory
4. The impact on her life
5. Why she chose to come forward when she did and what her expectations were

It's fine to lob a softball or two at the start; you want the witness to feel comfortable and trusting.  But then you bear down and turn up the heat.

Instead, we got repeated questions about irrelevancies such as where the polygraph test took place; who ordered and paid for it; who was paying for Ford's lawyers; and the dates of various communications with Anna Eshoo, Dianne Feinstein, the lawyers, and the Washington Post.

Here are some things Creampuff should have asked:

1. How well did Ford know Kavanaugh?

This is crucial, given that Ford's best friend, Leland Keyser, told the committee that she "does not know Mr. Kavanaugh and has no recollection of ever being at a party or gathering where he was present."  All the other individuals supposedly at the gathering also deny being there.  The obvious question is, did Ford, if she was really assaulted, misidentify the perpetrator?

The special counsel asked no questions about how long Ford had known Kavanaugh, on how many occasions she had spent time with him, when and where, conversations they had, etc.  A golden opportunity to expose Ford's unreliability was thrown away.

2. The Assault

There are lacunae in Ford's recollection of the event that you could drive a semi through.  The special counsel had no interest in exposing these gaping holes.

a. Ford stated that Brett Kavanaugh and Mark Judge were "inebriated."  How did she know this?  What did they do or say that gave her that impression?

b. Ford was presumably very upset when she left the party.  The four or five individuals supposedly at the gathering were still in the living room.  When you leave a party, you normally say goodbye to everyone.  Surely, her best friend must have noticed she was upset.  It would have been reasonable to expect Keyser to have followed Ford outside and ask what was wrong.  Mitchell left these questions unasked.

c. How did Ford get back from the party?  This was the pre-cell era.  Did she call someone from a pay phone?  She would have had some recollection of her rescuer.  Or did she walk the six to eight miles from the party to her own home?  This would certainly have left an impression.

3. Recovered Memory

When Ford first disclosed in 2012 that she'd been assaulted in 1982, was this a recovered memory or a memory she'd retained but hadn't bothered telling anyone?

A memory recovered in a therapy session has to be treated with a great deal of caution.  There's a large body of literature on the unreliability of recovered memories.  Two of the best books are Victims of Memory by Mark Pendergrast and The Myth of Repressed Memory by Elizabeth Loftus and Katherine Ketcham.  The prosecution of daycare providers in the mid-1980s was as discreditable an episode in American legal history as the Salem witch trials.   

Ford herself revealed how it came to pass that she recovered a memory of the alleged assault.  It was an interesting moment in her testimony.  During a major remodeling of her home, she wanted two front doors, and this led to her and her husband going into therapy.

The special counsel let this go by, proceeding to her next prepared question.

4. The Impact

From the questions about flying, a viewer could infer that Ford had claimed that as a result of the alleged assault, she was afraid of being in confined spaces, but this was never explained.  The special prosecutor did not make clear that she was refuting a fictitious claim about a lasting trauma.

5. Why did Ford come forward, and what were her expectations?

In the first place, Creampuff might have stated what "#MeToo" is all about.  All the cases involve older males who use their positions, their celebrity, their wealth, and their power to come on to younger women or men.  The approaches have ranged from unwelcome advances to rape.  And the offenses are always repeated.  Eventually, we'll learn the names of other women who shared the fate of Paula Jones, Juanita Broaddrick, Kathleen Willey, and Monica Lewinsky.

"#MeToo" is not about one-time encounters with drunken seventeen-year-olds.  The question unasked by Mitchell, but also by the GOP senators and the mainstream conservative media, is what bearing the alleged incident 36 years ago has on Kavanaugh's ability to serve as a Supreme Court justice.  Fortunately, Kavanaugh made the case himself in his testimony.  With regard to women, he has an extraordinarily exemplary record, as a judge and a human being.

Maybe the question can't even be asked in America anymore.  But there is a question the special counsel could have posed. 

Does Ford imagine that she lives in Nazi Germany, Soviet Russia, or the Islamic Republic of Iran – where an anonymous accusation is sufficient to deprive someone of a position or send him to a gulag or concentration camp?  We supposedly live under the rule of law, and if individuals believe they have been the victim of a crime, they go to the police – in this case, the Montgomery County Sheriff's Office.  The police investigate, and if they feel there's sufficient evidence, they refer the case to the prosecutor's office.  Then, if it proceeds, there's a trial, in which the accused has chance to confront the accuser and testify on his own behalf, etc., etc.  There is no statute of limitations on sexual assault in Maryland.  Why didn't Ford approach the sheriff's office in 2012?

The special counsel might also have pointed out that the FBI does not investigate allegations of sexual assault.  What is there for the agency to investigate?  It has state-of-the-art forensics labs, but there's no semen-stained blue dress, no fingerprints, no texts, emails, or letters from the time of the alleged assault.  There are only the four supposed witnesses, each of whom denies being at the gathering. 

Late in the day, it dawned on the Republican senators that they were not being well served by Creampuff.  They took over the questioning of Kavanaugh, with some good results.  Lindsey Graham's tirade was one of the high points of the hearing – except he forgot to conclude with a question to Dianne Feinstein: "Senator, have you no shame?"

Joe McCarthy had too much self-respect to behave as the Democrats have done.  But with the prospect of losing control of their nine-person Politburo, no smear is too vile.

Image courtesy Maricopa Attorney's Office.

Maybe the optics required a female special counsel.  But wasn't it possible to find someone who understands that the job of a prosecutor is to undermine the credibility of any witness testifying against the victim he's supposed to be representing? 

In the case of the alleged event sketchily recalled by Christine Ford, this shouldn't have been difficult.

Any good attorney does not stick to scripted questions and takes advantages of openings provided by witnesses.  This is something Rachel "Creampuff" Mitchell failed to do.

The special counsel needed to use all her time to question Ford about five things: 

1. How well she knew Brett Kavanaugh
2. The alleged assault
3. The process by which she recovered the memory
4. The impact on her life
5. Why she chose to come forward when she did and what her expectations were

It's fine to lob a softball or two at the start; you want the witness to feel comfortable and trusting.  But then you bear down and turn up the heat.

Instead, we got repeated questions about irrelevancies such as where the polygraph test took place; who ordered and paid for it; who was paying for Ford's lawyers; and the dates of various communications with Anna Eshoo, Dianne Feinstein, the lawyers, and the Washington Post.

Here are some things Creampuff should have asked:

1. How well did Ford know Kavanaugh?

This is crucial, given that Ford's best friend, Leland Keyser, told the committee that she "does not know Mr. Kavanaugh and has no recollection of ever being at a party or gathering where he was present."  All the other individuals supposedly at the gathering also deny being there.  The obvious question is, did Ford, if she was really assaulted, misidentify the perpetrator?

The special counsel asked no questions about how long Ford had known Kavanaugh, on how many occasions she had spent time with him, when and where, conversations they had, etc.  A golden opportunity to expose Ford's unreliability was thrown away.

2. The Assault

There are lacunae in Ford's recollection of the event that you could drive a semi through.  The special counsel had no interest in exposing these gaping holes.

a. Ford stated that Brett Kavanaugh and Mark Judge were "inebriated."  How did she know this?  What did they do or say that gave her that impression?

b. Ford was presumably very upset when she left the party.  The four or five individuals supposedly at the gathering were still in the living room.  When you leave a party, you normally say goodbye to everyone.  Surely, her best friend must have noticed she was upset.  It would have been reasonable to expect Keyser to have followed Ford outside and ask what was wrong.  Mitchell left these questions unasked.

c. How did Ford get back from the party?  This was the pre-cell era.  Did she call someone from a pay phone?  She would have had some recollection of her rescuer.  Or did she walk the six to eight miles from the party to her own home?  This would certainly have left an impression.

3. Recovered Memory

When Ford first disclosed in 2012 that she'd been assaulted in 1982, was this a recovered memory or a memory she'd retained but hadn't bothered telling anyone?

A memory recovered in a therapy session has to be treated with a great deal of caution.  There's a large body of literature on the unreliability of recovered memories.  Two of the best books are Victims of Memory by Mark Pendergrast and The Myth of Repressed Memory by Elizabeth Loftus and Katherine Ketcham.  The prosecution of daycare providers in the mid-1980s was as discreditable an episode in American legal history as the Salem witch trials.   

Ford herself revealed how it came to pass that she recovered a memory of the alleged assault.  It was an interesting moment in her testimony.  During a major remodeling of her home, she wanted two front doors, and this led to her and her husband going into therapy.

The special counsel let this go by, proceeding to her next prepared question.

4. The Impact

From the questions about flying, a viewer could infer that Ford had claimed that as a result of the alleged assault, she was afraid of being in confined spaces, but this was never explained.  The special prosecutor did not make clear that she was refuting a fictitious claim about a lasting trauma.

5. Why did Ford come forward, and what were her expectations?

In the first place, Creampuff might have stated what "#MeToo" is all about.  All the cases involve older males who use their positions, their celebrity, their wealth, and their power to come on to younger women or men.  The approaches have ranged from unwelcome advances to rape.  And the offenses are always repeated.  Eventually, we'll learn the names of other women who shared the fate of Paula Jones, Juanita Broaddrick, Kathleen Willey, and Monica Lewinsky.

"#MeToo" is not about one-time encounters with drunken seventeen-year-olds.  The question unasked by Mitchell, but also by the GOP senators and the mainstream conservative media, is what bearing the alleged incident 36 years ago has on Kavanaugh's ability to serve as a Supreme Court justice.  Fortunately, Kavanaugh made the case himself in his testimony.  With regard to women, he has an extraordinarily exemplary record, as a judge and a human being.

Maybe the question can't even be asked in America anymore.  But there is a question the special counsel could have posed. 

Does Ford imagine that she lives in Nazi Germany, Soviet Russia, or the Islamic Republic of Iran – where an anonymous accusation is sufficient to deprive someone of a position or send him to a gulag or concentration camp?  We supposedly live under the rule of law, and if individuals believe they have been the victim of a crime, they go to the police – in this case, the Montgomery County Sheriff's Office.  The police investigate, and if they feel there's sufficient evidence, they refer the case to the prosecutor's office.  Then, if it proceeds, there's a trial, in which the accused has chance to confront the accuser and testify on his own behalf, etc., etc.  There is no statute of limitations on sexual assault in Maryland.  Why didn't Ford approach the sheriff's office in 2012?

The special counsel might also have pointed out that the FBI does not investigate allegations of sexual assault.  What is there for the agency to investigate?  It has state-of-the-art forensics labs, but there's no semen-stained blue dress, no fingerprints, no texts, emails, or letters from the time of the alleged assault.  There are only the four supposed witnesses, each of whom denies being at the gathering. 

Late in the day, it dawned on the Republican senators that they were not being well served by Creampuff.  They took over the questioning of Kavanaugh, with some good results.  Lindsey Graham's tirade was one of the high points of the hearing – except he forgot to conclude with a question to Dianne Feinstein: "Senator, have you no shame?"

Joe McCarthy had too much self-respect to behave as the Democrats have done.  But with the prospect of losing control of their nine-person Politburo, no smear is too vile.

Image courtesy Maricopa Attorney's Office.