Christine Blasey Ford and Brett Kavanaugh were not on trial, but it might have seemed that way during a nine-hour long Senate Judiciary Committee hearing on Thursday. Both provided powerful testimony, at times full of raw rage in the case of Kavanaugh, the Supreme Court nominee who Ford is accusing of sexual assault.
Still, many questions remained unanswered, even now that a supplemental FBI investigation will be conducted. Who was lying? Could both Ford and Kavanaugh be telling the truth? Was the process tilted in favor of the accuser or the accused?
Earlier this week, two lawyers — Alan Dershowitz and Eric MacLeish — squared off on the Globe opinion pages each outlining six rules they thought the Senate panel should follow to ensure a fair hearing for both Ford and Kavanaugh.
Here they provide lessons on what went wrong at the hearing and what the FBI should be looking at:
Who’s more credible?
MacLeish, an attorney who has been representing victims of sexual abuse for 25 years, found Ford to be a remarkable witness. “I have tried a lot of sex abuse cases. With maybe one exception, this is the most compelling testimony I have ever heard from a survivor,” MacLeish said in an e-mail. She provided “an education on traumatic memory and why it is credible. Her testimony on this does not look staged and is natural. She was clearly a reluctant witness and tried very hard to avoid the type of hearing” that took place Thursday.
As for Kavanaugh, MacLeish said, he showed “rage and a lack of temperament” when he vehemently denied Ford accusations. Much of this hearing centered on what a good person Kavanaugh is. “I have met a lot of perpetrators with similar backgrounds,” MacLeish added. “It’s just irrelevant.”
Overall, Dershowitz gave the proceedings a D minus. He found Ford to be very believable and compelling. Ditto for Kavanaugh. So, who to believe? “There is no such thing as a truth detector,” Dershowitz said. “This could be a case of mistaken identity.” Which is why he supported putting Kavanaugh’s confirmation on hold until an FBI investigation could be conducted.
The female prosecutor
Dershowitz had called for “an experienced and sensitive female litigator” to conduct the hearings. Nonetheless, he thought Rachel Mitchell, the Arizona sex crimes prosecutor picked by Senate Republicans to do the questioning on their behalf, was highly ineffective. She did not help shed light into the accusations.
“I can’t imagine a worst choice than this nice woman,” Dershowitz said. “She was way over her head.”
He thought the five-minute intervals Mitchell had to pose questions for Ford were ridiculous. “It was a terrible process. It was not designed to get to the truth. Each side should have had two consecutive hours to cross-examine both witnesses,” he said.
MacLeish agreed on Mitchell’s inadequacy. There was “no effort from the majority or the ‘prosecutor’ to make [Ford] feel comfortable or to elicit relevant facts,” he said.
Mitchell then delivered, what MacLeish described as “softball questions” to Kavanaugh, and just gave him the chance to restate his innocence. “The supposedly neutral prosecutor was a Republican tool who was transparently partisan,” he said. “She was abandoned by those who hired her shortly after Judge Kavanaugh testified.”
Dershowitz thinks both witnesses are tied in terms of credibility, and the FBI should now take a closer look at corroborating evidence and further testimony.
But MacLeish warned that “there are rarely witnesses for sexual assaults and many cases where there is no forensic evidence. To suggest that allegations lack merit because there are no witnesses or because the allegations are old displays a fundamental ignorance about the nature of this horrible crime.”
MacLeish thought Thursday’s hearing should have included experts in sexual assault to educate the committee on the criteria of testing the reliability of memories. But in greenlighting an FBI investigation, the Senate is sort of acknowledging what it doesn’t know.