Guilty

By Daniel Roberts  |  October 5, 2018 | 6:52pm
Supreme Court

In the past week, we’ve been inundated with information about Dr. Christine Ford’s allegations about Judge Brett Kavanaugh. And while we have seen (and been prevented from seeing) a great deal of new material, as well as their highly personal testimony, it appears that few minds were changed. Democrats found Ford’s testimony powerful and believable, while Republicans were impressed by Kavanaugh’s impassioned denials. It has left us, at least according to the panels of talking heads assembled on the various cable networks, in something of a stalemate; a quintessential “he said-she said” where no one could ever determine exactly what happened.

That is, for much of the media and its viewers, an easy and comfortable mantra, sort of akin to elementary school sporting events in which everyone’s a winner. It’s also a welcome storyline for those Republicans who desperately want to confirm Kavanaugh without appearing insensitive to a sexual assault victim; they can shrug and say that the allegations would definitely be disqualifying but “there’s no corroboration.” There’s only one problem with this narrative: It isn’t true. When one takes a step back and looks at all the evidence in context, as a judge and jury would, a clear, internally consistent and highly corroborated narrative emerges. Viewed as a whole, this collection of well-established facts would satisfy the burden of proof in any courtroom in this country.

Guilt, in a courtroom, has a specific and quantifiable threshold. In the context of a criminal trial, guilt must be proven “beyond a reasonable doubt.” Notably, the standard does not require guilt to be proven beyond any doubt—merely all reasonable alternatives. Legal scholars tend to equate this burden to approximately 95 percent certainty that the accused did it. But this criminal standard also represents the highest such threshold under the law. In a civil matter—that is, effectively any matter where jail is not a possibility—the standard is much lower: a preponderance of the evidence, a fancy way of saying anything above 50 percent certainty. That’s right: you can lose virtually anything you own—your home, your money, your ability to perform certain jobs—if someone can show that you are more likely than not responsible for their harm. And the government can effectively deprive you of your property at an even a lower standard. They can seize it simply by making a showing to a magistrate (without your presence or participation) that they have a reasonable suspicion that the property is derived from illegal activity.

Finally, we reach the lowest standard of proof—the standard of proof for a Senate confirmation hearing, which is no standard at all. For all the shouting you heard in the past week about “presumptions of innocence” and “due process,” none of that exists in a confirmation hearing for a job Kavanaugh does not yet have. Senators can reject him if they don’t like the tie he wore or the smug look on his face.

In Kavanaugh’s case, though, it really does not matter which of these standards we judge him against: there is enough evidence to support a finding of guilt under all of them.

Ford’s Testimony Alone Is Sufficient to Demonstrate Kavanaugh’s Guilt

One of the arguments Republicans have repeatedly trotted out was that Ford’s story was “uncorroborated.” First of all, this is simply untrue (more on that in a bit), but second and perhaps more importantly, there simply is no requirement in any legal setting that a victim’s account be corroborated. In fact, testimony supporting a conviction very often is not. This should make good sense. Imagine a scenario in which you are walking alone through an alley at night when you’re attacked by a mugger. You shake him off and later visit the police station, where you are able to identify your assailant from a lineup. There will be nothing to corroborate your identification in this situation and yet, unless a defense attorney could poke holes in your story, it’s likely that your testimony would be enough evidence to sustain a conviction. As it should be. None of us should want to live in a world that denies us justice unless a crime is caught on videotape. Put simply, a victim’s uncorroborated credible testimony often suffices for a criminal conviction.

It seems almost beyond dispute that Ford’s testimony was compelling and credible. Even the liberal snowflakes on Fox News said as much. A number of pro-Kavanaugh Republicans said that they believed she was assaulted, just not by Brett Kavanaugh. This response is remarkable to anyone who has ever followed legal proceedings. Good lawyers can always find a hole somewhere in even the most honest person’s testimony. And victims of sexual assault tend to have more holes in their stories than most—not because they are being dishonest, but because the extraordinarily traumatic nature of the offense is powerful enough to disorient the brain. And, yet, after four hours of withering examination, the Republicans did not land a single blow against Ford’s credibility. She never flinched, never got defensive, never lost her composure, and never contradicted herself. This simply does not happen.

The facts are clear and consistent: Brett Kavanaugh is who Christine Blasey Ford said he is.

Not only was her testimony credible, it demolished the few outs that Kavanaugh’s defenders had hoped to find. She eviscerated the always-idiotic doppelgänger theory—the innocent man whom she was alleged to have mistaken for Kavanaugh turned out to have been a romantic partner of hers at the time. She also disposed of its less developed twin, the mistaken identity theory. When pressed on how certain she was that the man who attacked her was Kavanaugh, she didn’t hesitate, saying, “100 percent.” Her testimony, even lacking corroboration, would be more than enough to support a finding of guilt in a criminal setting, let alone a confirmation hearing.

There’s a Lot of Corroboration for Ford’s Account

But Ford’s testimony does not lack corroboration; in fact, it is remarkably well-corroborated. Let’s look at six key points of corroboration, plus another key fact the Senate could consider:

  1. Her therapist notes from 2012, six years before Kavanaugh was a nominee for the position. Given Ford’s self-evident credibility, the briefly-floated idea that she is a political hack out to sabotage Kavanaugh’s nomination has pretty well disappeared, but the therapist notes take it even a step beyond that. She would have to not only be a political hack, but a political hack with ESP to have pulled that trick off.
  2. The account of Ford’s husband, another credible individual with no identifiable axe to grind or political agenda, to support her claim that she identified Kavanaugh as her attacker in 2012. Several of Ford’s other friends and acquaintances also lodged sworn declarations saying that she told them about the incident in some degree of detail before Kavanaugh’s nomination.
  3. The statement of Leland Keyser—the other girl present at the party according to Ford—in which she states that she believes Ford’s account of what took place. Keyser had said, truthfully, that she did not have any recollection of the party (Kavanaugh gleefully cited Keyser when he thought she supported his version). But Keyser’s account is entirely consistent with Ford’s testimony that no one else saw the attack and that she told no one what happened to her until 2012.
  4. Ford’s behavior is consistent with that of a survivor of sexual assault. Certain partisan talking heads have suggested that her failure to report the attack in 1982 is evidence that it didn’t happen; but in fact, experts on sexual assault will tell you it is absolutely the norm for victims to wait months or years before coming forward. Some Republicans have tried to make hay out of the fact that Ford has a very clear memory of the events leading up to the attack, and the attack itself, but does not recall how she got home after it. But in fact, this is exactly how a victim of sexual assault is likely to behave. The brain goes into survival mode after fear kicks in and less important functions, like forming memories, take a backseat. In the words of Harvard psychologist James Hopper, “[v]ictims may remember in exquisite detail what was happening just before and after they realized they were being attacked, including context and the sequence of events. However, they are likely to have very fragmented and incomplete memories for much of what happens after that.” If anything, Ford’s incomplete memories of what followed the attack corroborate her claims.
  5. Ford’s description of the teenaged Kavanaugh as an aggressive and belligerent drunk has subsequently turned out to be remarkably accurate. At the time Ford came forward, Kavanaugh was perceived very differently. In fact, just before her allegations were made public, the Washington Post observed that Kavanaugh was seen as “genial” and “soft-spoken.” Given this widespread perception of Kavanaugh’s personality, it’s very unlikely that Ford would have (correctly, as the evidence now establishes beyond any doubt) guessed that Kavanaugh was a boorish drunk unless she knew it from firsthand experience. The fact that she knew of Kavanaugh’s “Dr. Jekyll and Mr. Hyde” tendencies, which have been on display often in the past two weeks, is strongly corroborative.
  6. Ford’s claim to have run in the same circles as Kavanaugh is amply demonstrated by Kavanaugh’s own calendars. Kavanaugh’s good friend, Chris “Squi” Garrett, was seeing Ford at the time and he appears on Kavanaugh’s calendar no fewer than 10 times during the summer of 1982 alone.

Finally, Ford took and passed a polygraph examination. True, this would not be admissible in a criminal trial, but for the purposes of the Senate review, it is powerful corroborative evidence (a fact that Kavanaugh himself recognized in a 2016 legal decision). Her willingness to take a polygraph (as well as the results of it) contrast notably with Kavanaugh’s evasiveness and dishonesty.

Given the relative brevity and out-of-sight nature of the assault itself, the only possible witnesses to it are Kavanaugh himself, and Mark Judge, a good friend of Kavanaugh who, according to Ford, was complicit in the attack and said in a written statement that he has no memory of the party and said he didn’t recall Kavanaugh behaving that way. It’s hardly a surprise that neither of them has confirmed Ford’s account.

Ford’s credibility, her absolutely certain identification of her assailant, and these seven corroborating facts should be enough. But it’s only the beginning of the case against Kavanaugh.

Kavanaugh Has Repeatedly Demonstrated Consciousness of Guilt

The law allows evidence that demonstrates an accused person’s “consciousness of guilt.” For example, if someone destroys or doctors evidence, attempts to flee, or changes their appearance from how it looked at the time of the crime, prosecutors can admit this as evidence of a guilty mind. Has Kavanaugh demonstrated evidence of a guilty mind? You be the judge.

A general outline of Ford’s allegations was made public on Sept. 13, but her name was not publicly attached to those allegations until the afternoon of Sept. 16. Earlier that same day, the Washington Post notified the White House of Ford’s identity. Within 90 minutes of that notification, Ford sent an email to a colleague reporting that Ed Whelan had visited her LinkedIn page. This was still hours before her identity had been made public to anyone outside of the White House. Because Ford sent the email after Whelan had visited her page, and because the actual LinkedIn time records have not been made public, it is unclear whether Whelan visited Ford’s profile before or immediately after the White House was informed of her identity. But what we do know is that Whelan told the Post that he had not spoken to Kavanaugh or anyone at the White House about his investigation (his carefully worded statement left open the possibility that he communicated via an intermediary).

So how did Whelan know who was making the allegations? Unless the time issues are resolved definitively, we are left with just two options, both of which are damning for Kavanaugh: (1) the White House immediately notified Whelan upon learning Ford’s name, a fact that Whelan subsequently felt the need to lie about, or, (2) he learned her name from some other source before the White House learned Ford’s name.

If the first option is correct, it establishes both that, at a minimum, the White House and Whelan were in cahoots, that they both felt an immediate need to discredit Ford’s story, and that they then felt the need to lie not only about the fact that they discussed the matter prior to Ford’s name becoming public, but that they communicated about the allegations at all.

The second option, however, is far worse for Kavanaugh. He claims that the incident never occurred. If that is true, he could not possibly have known Ford’s name until after it became public. But, if that were so, how did Kavanaugh recognize the source of the supposedly fictitious allegation before her identity was publicized?

Kavanaugh blatantly lied. Repeatedly. Under oath. This year.

What makes this behavior especially probative is that we’ve recently learned it was not an isolated incident. Just as he had with Ford, Brett Kavanaugh testified that he did not know of Deborah Ramirez’s allegations until they were made public in late September (he also told a Senate investigator that he learned from a New York Times account that Ramirez was contacting his classmates in the period after the allegations became public). However, NBC now reports that text messages and other supporting evidence show Kavanaugh’s “team” began discussing a preemptive strike against Ramirez as early as July, and swapped photos of Ramirez and Kavanaugh at a wedding in the days before her account became public.

Once again, this begs the question: If the allegations were an unfounded invention, how did Kavanaugh and his team know to anticipate them in advance? And why is a federal judge who is up for confirmation to the Supreme Court engaging in a political opposition research campaign against someone who, according to his testimony, he would not even have cause to believe would speak out against him?

Brett Kavanaugh’s Reputation for Dishonesty

In criminal matters, it is possible to introduce evidence that a witness has a poor reputation for truthfulness. In a case where a jury has trouble reconciling two witnesses’ testimony, the fact that one has a history of lying can hold considerable weight. And while it is generally not permissible to introduce evidence of a witness’s reputation for being truthful, it can be done if that witness’s credibility has been attacked by the other side. So let’s take a look at both Kavanaugh and Ford’s reputation for truthfulness.

Ford, as mentioned above, has a sterling reputation and her credibility is acknowledged by all. The same cannot be said for Kavanaugh. The following are just some of the major media outlets that have demonstrated and cataloged some of the lies Kavanaugh told under oath: The New York Times, The Washington Post, USA Today, GQ, Esquire, Slate, CNN in partnership with the highly regarded and non-partisan FactCheck.Org, the LA Times, and NBC. Let’s put a pin for a moment in Kavanaugh’s denial of responsibility for Ford’s assault, and focus on just a few of the other times he appears to have lied under oath or encouraged others to be dishonest.

  1. Kavanaugh testified that he had never gotten drunk to the point of passing out. However, we have a 2001 email to a group of friends in which he says he does not recall “getting aggressive after losing yet another game of dice.” Many have taken that as a reference to blacking out. Perhaps more persuasively, numerous former classmates and even old drinking buddies have reported that Kavanaugh drank to excess and surely blacked out on many occasions.
  2. In that same email, Kavanaugh admonished his friends to be “very, very vigilant [with respect to] confidentiality on all issues and all fronts, including with spouses.” While we don’t know exactly what those issues and fronts were, we do know the trip involved drinking and gambling, and that at least one of his friends had made a joking reference to arranging “rub-n-tug massage[s] for the group.” Whatever happened, it’s clear Kavanaugh did not want it to get out, even if that meant lying to spouses.
  3. Kavanaugh testified that a yearbook reference that he and 13 other boys made to “Renate Alumnius” was not a boast about a supposed sexual “conquest,” but rather “clumsily intended to show affection and that she [Renate Schroeder Dolphin] was one of us.” This explanation has been roundly dismissed by classmates who remember Kavanaugh and his friends treating Dolphin “very disrespectfully” and noted that she was often a subject of their sexual boasts. Beyond that, Kavanaugh’s testimony also directly conflicts with Kavanaugh’s own initial denial, issued via his lawyer, in which it was claimed that Kavanaugh and Dolphin had gone on a date to a high school event and shared a brief kiss, and that “the language from Judge Kavanaugh’s high school yearbook refers to the fact that he and Ms. Dolphin attended that one high school event together and nothing else.” Dolphin immediately denied ever having kissed Kavanaugh. So which is it? Was it to show Dolphin “was one of us,” was it to reference a single kiss that Dolphin denies ever took place, or was it a (false) sexual boast as claimed by multiple classmates (and which is clearly the explanation most consistent with the context of the 14 references to her in that yearbook).
  4. Kavanaugh’s yearbook contains a number of other cryptic references (“boof,” “devil’s triangle,” the Keg City Club) for which he has provided innocuous explanations. However both former classmates and online dictionaries have supplied far more salacious and contextually-believable explanations.
  5. Kavanaugh has testified on four separate occasions that he was unaware that a Republican staffer hacked the accounts of Democrats on the Senate Judiciary Committee. Sen. Patrick Leahy, a victim of the hack, has extensively documented instances in which he believes Kavanaugh’s testimony was clearly false, and the Washington Post investigated it and awarded Kavanaugh “three Pinocchios,” which is defined as statements that contain “significant factual errors,” “obvious contradictions,” and/or are “very misleading.”

The point is not that Kavanaugh was, in his own words, a “loud, obnoxious drunk” while he was in high school. Many of us—myself definitely included—habitually drank too much at that age, said stupid things that we regret, and generally behaved like jackasses, but have done a great deal of growing up since and probably should not be disqualified from government service as a result. The issue here is that Kavanaugh blatantly lied. Repeatedly. Under oath. This year. That’s an unpardonable sin for anyone, let alone a would-be Supreme Court justice, and it also raises the question of why Kavanaugh felt that it was necessary to do so. Whatever the answer, Kavanaugh’s reputation for truthfulness is in tatters.

Conclusion

The evidence against Kavanaugh is daunting. What perhaps stands out most of all is that every key fact is part of a pattern of behavior in Kavanaugh’s life. He was repeatedly accused of the same type of sexual misconduct. Peers would repeatedly describe him as a boorish, aggressive drunk, a characterization he himself confirmed on multiple occasions in contemporaneous accounts. He was repeatedly disrespectful of young women and seems to have been prone to making false sexual boasts (up to and including his recent claim of having shared a kiss with Renate Dolphin). He has lied, repeatedly, about a wide range of potentially damaging allegations. He engaged in what appears to be nearly identical preemptive strikes against his accusers, even though he could not have even known who they were if he was telling the truth. He has lashed out aggressively at Democrats. He has even offered up similar lame excuses and apologies on multiple occasions. These are not isolated incidents. The facts are clear and consistent: Brett Kavanaugh is who Christine Blasey Ford said he is.

The facts are also consistent with Ford. She was universally hailed as credible. She came forward even though she had nothing to gain by doing so and knew she was exposing herself and her family to harassment and abuse for years to come. Her testimony, behavior and demeanor are consistent with being a survivor of a sexual assault. Her testimony is corroborated by or consistent with every available data point other than those supplied by the accused, Kavanaugh and Mark Judge. For all the fury and indignation from the right, they have presented not a single reasonable justification to doubt her story: Christine Blasey Ford also appears to be who Christine Blasey Ford said she was.

Imagine this case, in a courtroom, with two anonymous individuals. What chance is there that a jury would side with a liar, an aggressive drunk, a Dr. Jekyll and Mr. Hyde type personality who has every incentive to lie over a calm, credible, consistent and, yes, well-corroborated victim who has nothing to gain by lying? And despite what some Republicans have tried to claim, the fact is that Ford’s story is simply irreconcilable with Brett Kavanaugh’s. You cannot split the baby; you cannot believe them both. So, now you’ve seen all the evidence. Which one of them do you believe?

Daniel Roberts is a lawyer and an occasional contributor to Deadspin and Splinter. He can be reached at [email protected] or on twitter at @drobertsIMG.

 
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