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Kavanaugh’s accuser might be better off with a criminal trial. So might Kavanaugh.

  • Author: Deanna Paul
    | Opinion
  • Updated: September 22
  • Published September 22

FILE - In this Sept. 4, 2018, file photo, Supreme Court nominee Brett Kavanaugh, left, attends his confirmation hearing with the Senate Judiciary Committee on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin, File)

Televised nationally, Anita Hill’s 1991 interrogation by an all-male panel of senators was broadcast to a country that could not peel itself away from the paralyzing spectacle - a grueling and humiliating experience that Christine Blasey Ford may take on next week.

Years later, Hill said that testifying during Clarence Thomas's Supreme Court confirmation hearing was "worse than being put on trial, because in a trial you've got legal protections."

But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee - at least for Ford.

Ford alleges that President Donald Trump's Supreme Court nominee, Brett M. Kavanaugh, sexually assaulted her decades ago. Like Thomas, who was accused by Hill of sexual harassment, Kavanaugh denies the allegations.

Now the Senate Judiciary Committee hopes to hear from her and Kavanaugh.

At Thomas's confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. "And Professor Hill would be the one on trial," she recalled recently.

Ford's lawyer, Deborah Katz, has attempted to limit her client's exposure to a triallike experience, requesting that Ford testify without Kavanaugh present; additionally, she has raised concerns about outside counsel questioning Ford, according to The Washington Post's Seung Min Kim.

But in Ford's case, some legal experts say, a trial might actually be better than a congressional hearing.

It's a purely thought exercise at this point, since the Montgomery County, Maryland, prosecutor's office has not announced plans to bring charges against Kavanaugh over the 1983 incident. Maryland has no statute of limitations for crimes such as murder and rape, though it does for many less serious offenses.

But here are some of the reasons experts wonder whether Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.

They're some of the same reasons experts wonder whether Kavanaugh might be better off as a trial defendant, too.

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At a criminal trial, juries are drawn from the general population and winnowed through an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.

It's not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however - as several Republican senators have already done - would constitute grounds to dismiss a prospective juror.

And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify.

Sen. Orrin G. Hatch, R-Utah, said that Ford must be "mistaking [Kavanaugh] for someone else," in a statement to Fox News. (Hatch also questioned Hill in 1991, and famously referred to her as an "allegator.")

Sen. John Cornyn, R-Texas, said he was concerned by "gaps" in Ford's version of events.

Neither man has heard Ford's account firsthand. Instead, both have relied on Katz's statements in the media, according to Arthur Aidala, a former New York prosecutor who now practices criminal defense and serves as a legal analyst for Fox News.

"It defies reason for one human being to attribute credibility to another based on a third party," Aidala told The Post this week.

The Supreme Court has made the Sixth Amendment's Confrontation Clause, which guarantees the accused a right to confront his accuser in court, paramount to a fair system of judgment.

"It's how jurors can reach an accurate finding. People who evaluate credibility are entitled to look into witnesses' eyes and assess them," Aidala said.

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The rules of evidence aren't enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues.

"For Ford, I don't know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn't be able to do that in a court of law," Aidala said, referring to protections known as Rape Shield Laws. These protections, crafted for sex crime victims, limit admissible evidence about a victim's past sexual behavior.

More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic.

For Ford and Kavanaugh both, Aidala said, "the protection they have at a trial is that the lawyers aren't playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign. Some of senators aren't very artful in their questioning. A judge would protect them both."

A judge would also control the courtroom and keep the inquiries from wandering too far.

Unlike defense attorneys, who are focused on zealously defending the client, or prosecutors, whose job is to deliver justice, senators have different motivations and are playing to a different audience.

Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.

"They all make speeches and then say, 'What do you think about that?' " he said. "They don't want to ask questions and their minds are already made up. It's very ineffectual when you have a real witness."

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A congressional hearing would not be a trial, where the prosecutor carries the burden of proof. The Judiciary Committee's role here is not to determine guilt or innocence, but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.

Ford has alleged that in the early 1980s, at a house party in the suburbs, Kavanaugh pinned her to a bed, groping her over clothing and rubbing his body against hers, The Post reported. Then, she said, he tried to take off her bathing suit, covering her mouth when she called for help. Ford, who described the assault as a "rape attempt," also said she thought Kavanaugh "might inadvertently kill me."

Katz, the attorney for Ford, told NBC's "Today" show that her client believed "if it were not for the severe intoxication of Brett Kavanaugh, she would have been raped."

"As a lawyer, there's a big stretch from Ford's description of [Kavanaugh's] actual actions versus what she says is happening or about to happen," explained Aidala, the criminal defense attorney and former prosecutor.

If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, "and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt," he said.

As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.

Still, Black said that he would probably call Kavanaugh to the stand.

"He makes a good witness. He's smart, he's presentable, he's articulate, and he'll categorically deny it so I don't see any downside," Black said.

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Mark Judge, Kavanaugh's prep school classmate whom Ford placed in the room, said in a letter to the Senate Judiciary Committee that he had no memory of the alleged assault. "I have no more information to offer the Committee and I do not wish to speak publicly regarding the incidents described in Dr. Ford's letter," he wrote.

But whether Judge wished to testify at a criminal trial would be irrelevant.

Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution's case.

"He obviously comes with baggage because of the various things he's written about," said Black. But, he added, assuming Judge was called by the prosecution, "I think that would be a positive trial witness for Kavanaugh to cross examine."

At a Senate hearing, neither side will be required to call Judge to speak. Nor would they likely want to.

Because Judge claims he does not recall the night in question, he has little to offer Democrats, Black said. Republicans probably wouldn't call him in for testimony, either, because of the history he brings to the witness stand.

Now a filmmaker and author, Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school's yearbook: "Certain women should be struck regularly, like gongs."

He has described himself as having had a blackout drinking problem, and his 1997 memoir, "Wasted," references high school "masturbation class," "lusted after girls" at other Catholic schools and a "Bart O'Kavanaugh," who passed out drunk and threw up in a car.

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Maryland has no statute of limitations for the crimes of rape and assault, meaning Kavanaugh could theoretically face criminal charges.

But theory and reality are not one and the same, and being able to file charges does not mean a prosecutor will or should.

Under the law, a district attorney does not need more than one witness's word to prove a case. Still, a prosecutor doesn't want to bring charges she'll have to dismiss or doesn't believe she can prove, Black said.

“I think Ford may well be telling the truth, but when you’re putting forward a proposition - in a criminal court, the Senate or an administrative hearing - there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”

Deanna Paul covers national and breaking news for The Washington Post. Before joining The Post, she spent six years as a New York City prosecutor.

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