Just when you thought the Supreme Court nomination process couldn’t get any more partisan or divisive, Washington pulsates with a new level of political pandemonium.
Christine Blasey Ford now claims nominee Judge Brett Kavanaugh attempted to grope her at a drunken high school party in 1982. If she’s telling the truth, it was an inexcusable criminal act from Kavanaugh. If she’s not, it’s despicable political smear.
As a prosecutor, I’ve often reviewed allegations like this, to determine whether charges should be brought. Typically, filing a criminal case nearly four decades after an incident is all but impossible, either since the applicable statute of limitations bars prosecution or because of a scarcity of corroborating witnesses who can testify clearly and convincingly. If I do bring a case, I have a high burden of proof.
But the burden of proof in politics is largely amorphous in a polarized environment where tribal instincts overthrow logic and cool consideration. With the Kavanaugh allegation, you don’t need a weatherman to know that category five cognitive dissonance will bring a storm surge of partisan-driven conclusions.
While we’re all entitled to have our own view about whether this stale accusation is true, spouting opinions is easy and discerning facts is hard. The latter is the arduous work of a prosecutor.
When I prepare a case for indictment and trial, I must hew to the rules of evidence and the canons of ethics. These legal dictates sometimes hamper my mission and always limit my options. That’s why, when black letter law blends with the gray hues of distant memories, you can color me dubious about getting a conviction.
Obstacles to truth-finding abound here. For one, an attorney representing Ms. Ford steered her to a polygraph examiner, who deems the assault allegations genuine. While the lawyer certainly knows that notoriously unreliable lie detector data are almost always inadmissible in the court of law, political operatives recognize that polygraph results are exuberantly embraced in the court of public opinion.
Similarly, allegations in court must be made under oath, where the witness risks prison if she perjures herself. There are no so such constraints in media testimony. True or not, the more heinous the allegation, the more hyped the reporting. Clicks are acquired, ratings points are scored and public opinion begins to shift.
Claims brought to trial face a rigorous testing. After evidence is presented, the judge will tell the jury how to determine whether the assertions were proven. Jurors must use the same common sense they employ when making important life decisions like buying a car or taking a new job.
Given the court rules barring it, a jury reviewing Ms. Ford’s claim would never hear about the polygraph. And during deliberations, jurors would discuss the fact that Ms. Ford had been drinking at the time, to the point where she forgot how she got home. Common sense would lead many of them to believe that alcohol and the passage of time made her memory less reliable.
Ms. Ford’s account suggests that another young man saved her from the clutches of Kavanaugh. He specifically denies that the event ever occurred. Jurors would likely give his third-party account significant weight, changing what was a he-said, she-said narrative to a question of they said, she said.
Indeed, unless the facts, evidence, or witness list changes in the Kavanaugh conflict, a court case alleging sexual assault would probably fail. Of course, the U.S. Senate has a different standard and each senator is free to decide these issues of credibility and evidence differently. After all, advice and consent lie in the eye of the beholder.
No matter what the age or blood alcohol level, sexual assault is a heinous act. That’s why victims ought to report such crimes immediately. We should empathize with the reluctance of abused women to draw attention to an embarrassing and painful incident. Yet due process requires that claims brought forward decades later – particularly when rancorous politics is woven into the context — draw the highest level of skepticism.
Mark R. Weaver is a former spokesman for the U.S. Department of Justice, the former deputy attorney general of Ohio, and has prosecuted numerous sex offenders as a special prosecutor. Mr. Weaver is the author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
