IS SUPREME COURT JUSTICE BRETT KAVANAUGH GUILTY?

I’m recovering from a second rotator cuff repair on my left shoulder, a recovery which is predicted to take 3-4 months. The first came in January of this year, and I almost immediately re-tore the cuff when I fell hard on a concrete floor. A very eventful year caused me to repeatedly put off rotator cuff repair because of other commitments, and I just had the second surgery last week. The recovery is projected to take 3-4 months, and I will be hors de combat for a long time. I am trying to be extremely careful not to re-tear the cuff. The result is that I’m spending a lot of down time on my iPhone.

In my enforced idleness I discovered a website called Quora, a question-and-answer website which ought to be more popular than it is. You join the site, tell it what subjects you are interested in, and it sends you questions on those subjects that have been asked by other members. You can read the answers to those questions given by others, or you can write your own answers. Or you can ask your own questions. Some of the questions are near-unintelligible, and some of the answers are so far out in left field that they’re not even in the ballpark, but most questions are good and most answers are thoughtful. And it gives you a chance to talk about a lot of stuff that would probably bore your friends to tears. There are very few people in my circle of friends who are interested in the philosophy of the Ante-Nicene Fathers or the military campaigns of Subotai Bahadur.

So in my downtime I have answered a boatload of questions on Quora and engaged in some thought-provoking discussion. I have decided to publish some of my discussions on Quora as blog posts. I’ll try to steer clear of some of the more arcane subjects, but I may stray into areas that will bore you to tears. I apologize in advance if I do so.

Here’s a question on a subject that I don’t think anyone will find boring:

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QUESTION: Is Supreme Court Justice Brett Kavanaugh guilty?

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MY ANSWER: I have prosecuted numerous “historical” sex assault cases, the oldest conviction came around 1996 for a crime which happened in 1966 when I was a senior in high school.

I have declined to charge in even more “historical” sex assault cases because I believed the evidence was insufficient to give the requisite reasonable prospect of conviction.

Along the way I learned some things about human memory: It is fallible, and it is malleable. Uncorroborated eyewitness testimony is fraught with peril. Most exonerations in wrongful conviction cases come from cases where eyewitnesses are positive the defendant did it, but DNA shows them to be wrong. It’s like the definition of positive in “The Devil’s Dictionary:” Mistaken at the top of your voice.

In historical cases we did not file on the uncorroborated testimony of an eyewitness, and we were very careful about filing charges in current cases with uncorroborated eyewitnesses.

If the Kavanaugh case had been brought into our office when I was prosecuting sex crimes, I would never have filed it; and I could have made the decision without an FBI investigation.

None of which means that I think Ford was lying. Decades after I graduated from high school, I was accused of being drunk out of my mind at a high school football game by a high school classmate who had known me for years. She said I fell on her while trying to climb to the top of the grandstands and she could smell the alcohol on me. She had no corroboration, but I had this corroboration:

When I was old enough to drive after dark, I was on the football field playing football. Before I was old enough to drive after dark, my parents drove me to every game. I didn’t start drinking until I was a sophomore in college. (I reached my lifetime quota for alcoholic beverages in 1980).

But she was positive, and nothing I could do or say would convince her otherwise.

Do you think I was guilty of being drunk and disorderly at a high school football game?

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My answer provoked another member to ask me this question:

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QUESTION: “None of which means that I think Ford was lying.” This one sentence of yours seems to not fit in with the rest of your response. Are you maybe being sarcastic, or what? Or are you splitting hairs about the meaning of “lying?”

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MY ANSWER: The dictionary defines “Lie” as “A false statement made with deliberate intent to deceive; an intentional untruth.” You can tell the biggest whopper imaginable (E.g. “The earth is flat and rests on four elephants standing on the back of a turtle”) and not be lying, if you believe you’re speaking the truth.

During my 32 years in the courtroom I came to the conclusion that most false testimony is given because witnesses are mistaken, misinformed, or have misinterpreted what they saw or experienced.

I became very careful about tossing around the L word, never accusing anyone of lying unless I had rock-solid evidence of intent to deceive. That is a hard-and-fast rule that I have tried to adhere to outside the courtroom as well.

If that’s splitting hairs, so be it.

Here’s what I think of Ford’s credibility. Something unpleasant happened to her all those years ago. Being under the influence of alcohol, she was not certain who the offending party was. It was easy to think Kavanaugh was the offender because of the past difficulties between their parents, but initially it was too foggy an identification to make an accusation. Over the years her memory transmogrified the offense into something more serious than it actually was, and as Kavanaugh’s success grew so did her anger at him. As her anger grew, so did her certainty that he was the offender.

When Kavanaugh was nominated to the Supreme Court, she shared her belief about the incident with forces aligned against him. She thought that what she said would be held in confidence. Instead it was weaponized and deployed at the time it was calculated to be most likely to derail Kavanaugh’s nomination.

Having nothing but vague memories of the event, she initially refused to testify. She was eventually persuaded to testify by two things: (1) pressure from anti-Kavanaugh forces, and (2) vilification from pro-Kavanaugh forces. I think (2) had more to do with causing her to decide to testify than (1).

When witnesses take the stand, they have a tendency to become advocates for their own side rather than impartial reporters of what they saw. This is what happened with Ford. When a witness becomes an advocate for the truthfulness of her testimony rather than an impartial reporter, the witness embellishes her story to make it sound better.

The result of all this was testimony which didn’t have sufficient force to be believed from a witness who probably was not lying. She was not making statements she knew to be false with intent to deceive. She was embellishing an account of a memory she had with intent to get others to believe what she believed—that her memory was true.