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Prosecutors disagree with Mitchell's Ford memo

In the United States, the standard of proof for bringing a sexual assault case to the courtroom is high. And if Christine Blasey Ford's case came across Arizona prosecutor Rachel Mitchell's desk today, she wouldn't think it met that standard, Mitchell wrote in a memo.

Posted: Oct 2, 2018 5:39 PM
Updated: Oct 2, 2018 5:55 PM

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."

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."

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.

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