Rachel Mitchell, the experienced sex crimes prosecutor from Arizona who appeared at the behest of the Republicans on the Senate Judiciary Committee to question Christine Blasey Ford last week, submitted a five-page memorandum on Sunday to the committee outlining her professional independent assessment of Ford’s testimony.
Mitchell emphasizes at the outset that her assessment was not reviewed or pressured in any way by any of the committee members. While acknowledging that she is a registered Republican, Mitchell also highlights the fact that she is “not a political or partisan person.”
For anyone who has practiced law in the context of the criminal justice system (and I have), we can fully understand that the lines are not drawn in the courtroom based on political affiliation, but generally based on prosecutor versus defense sides of the table. Litigation is designed to be an adversarial system because the prosecutor has an interest in justice for society and the defense has an interest in justice for the accused.
[Also read: Rachel Mitchell's memo is damaging to Christine Blasey Ford's case against Brett Kavanaugh]
Naturally, these two interests will clash when the prosecutor is attempting to convince the jury to make a finding of guilt when the defense is maintaining the accused is not guilty. Thus, our fact-finding process requires all elements of due process, including bringing forth evidence (both physical and testamentary) and affording the jury an opportunity to assess the weight and credibility of both cases.
But there is very interesting point of intersection where these two interests of justice actually align. Our justice system is built on the foundational philosophy that liberty cannot be abridged arbitrarily. Our system intentionally affords the accused the presumption of innocence, and puts squarely on the prosecutor’s shoulders the burdens of proof and production.
What this means is that at the outset of a trial — before any evidence has been submitted, before any witnesses have spoken — if the jury were required to render a verdict at that moment, the law requires a verdict of not guilty. Why? The prosecutor must work to sufficiently fulfill its burden, otherwise the law will recognize the accused is presumptively innocent.
This is to avoid wrongful convictions and social and liberty consequences for accusations that cannot be substantiated. In the criminal context, prosecutors evaluate the evidence initially, including strength of witness testimony and corroboration, to determine whether they believe in good faith that they could fulfill their burden if they took a case to trial.
So, the point of intersection for interests of justice for both society and for the accused is when there is no evidence sufficient for a reasonable prosecutor to bring charges because the prosecution cannot fulfill its burden. That is exactly what Rachel Mitchell discusses. Prosecutors do not work for the alleged victim or reporting party. One of my first mentors who was and is still a prosecutor told me that prosecutors are always on the side of the truth. Whatever the facts show, whether that means an accused person should be charged or whether that means there is no evidence to support the allegations, the prosecutor should make an independent assessment.
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Often, even if a prosecutor determines to take a case forward, there is still not enough evidence to actually convict a defendant. This is not a design flaw in our system, but a protection against false allegations and against overcharging by an aggressive prosecutor, which helps preserve the presumption of innocence and due process. Criminal charges intentionally require the highest standard in our law — proof beyond any and all reasonable doubt.
Kavanaugh’s confirmation hearing isn’t a criminal trial, but the allegations are of criminal activity. Though the Senate is not bound by a criminal standard of proof, this is the mindset of Rachel Mitchell, a career prosecutor, in evaluating and assessing the weight and credibility of Ford’s testimony last week.
What would Mitchell do if she were tasked as a prosecutor with this case?
She said in the memo, “That is how I approached my job. There is no clear standard of proof for allegations made during the Senate’s confirmation process. But the world in which I work is the legal world, not the political world. Thus, I can only provide my assessment of Dr. Ford’s allegations in that legal context.”
Her five-page memo shows exactly how she would evaluate the evidence in a legal context, and shows how the interests of justice align between a prosecutor and the accused. Mitchell states “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that.” She goes on to show in detail precisely how inconsistent Ford’s statements were and how other witnesses refuted or failed to corroborate Ford’s story.
Her conclusion is key:
“I do not think that a reasonable prosecutor would bring this case based on evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.”
She’s saying that not only would a reasonable, nonpolitically driven prosecutor decline to prosecute this allegation based on the evidence, but the case would not even meet the preponderance, or a “more likely than not,” standard that is used in the civil law context — a standard far below beyond a reasonable doubt.
Why is this important? Because the presumption of innocence still matters and proof for allegations still matters. Our society, including the Senate, still recognizes that in this country that we do not punish a person or impugn their character and integrity with insufficient evidence. As Alan Dershowitz said, “Being on the Supreme Court is a privilege, not a right. But being disqualified based on a false accusation of a crime would be a violation of the fundamental right to fairness.”
Our society stands for constitutional protections, justice, fairness, and reasonableness. Shouldn’t we expect the Senate to also?
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner's Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at email@example.com.