So, yesterday’s Supreme Court Senate Confirmation Hearings for Judge Brett Kavanaugh ostensibly was a job interview played out on a national stage. But with the question of whether he committed sexual assault 36 years ago weighing in the balance, and with even the President of the United States using terms only associated with active criminal cases such as “presumed innocent” and “reasonable doubt,” I figured that I would play along and analyze what we heard over eight hours of testimony yesterday from the perspective of a criminal defense lawyer who has tried 158 cases in federal and state courts.
Before I begin, I have noticed some pundits making a crucial mistake–suggesting that “they need to see more evidence of an attempted rape” beyond what Dr. Christine Blasey Ford provided through testimony. The mistake being that testimony IS evidence and that many a rape case has boiled down to “she said, he said” and a jury, with no corroborating testimony or DNA evidence, is forced to decide which person they believe.
At the close of evidence in a criminal case, criminal court judges instruct jurors as follows: “Members of the jury, you should consider how the witnesses acted, as well as what they said. Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the things about which the witness testified:
Dr. Blasey Ford definitely remembered the details of the sexual assault, as she carefully described the smell of alcohol on the breath of a then 17-year old Brett Kavanaugh and his best friend Mark Judge. She remembered feeling as if Kavanaugh would kill her with his hand over her mouth. She remembered looking at Judge for help, but no help came until a drunken Judge jumped on the bed and forced them all to fall over–thus allowing her to escape to a bathroom that she locked.
Dr. Blasey Ford remembered listening at the bathroom door as the two drunken football players lumbered down the stairs, bouncing off of the walls with each step.
Judge Kavanaugh, on the contrary, denied having ever attended such a party with Blasey Ford, and declared that he has no memory of this event. His lack of memory will be analyzed further below.
(Dr. Blasey Ford crying during her testimony)
2. Did the witness seem to have an accurate memory?
Dr. Blasey Ford had a very accurate memory of the attempted rape, as discussed above. Her memory was not as accurate with regards to what day the traumatic event occurred, whose house it happened at, or how she arrived at the party or got home.
While I have never been raped, the most traumatic event of my young adulthood was the time that I got caught in the middle of a shootout as I hung out with members of a fraternity that I was interested in (and eventually did) pledge. As fecund as my mind is, I do not remember what day it happened on or who I went with to the meeting. I don’t remember what I was wearing or what time I made it back to my dorm room. But I do remember those shots; I remember ducking underneath a Suzuki Samurai with another future frat brother (who now is a prominent state court judge). I remember those bullets hitting the pavement near our locale and thinking that I was going to form And I remember making a dash once it was clear that the shooter had emptied his clip.
My point? My memory of the substance–getting shot at–is razor-sharp, even if my memory of the before and after details has waned after 26 years.
As for Judge Kavanaugh, his memory of what happened is non-existent. I sense that his memory does not exist because there are ample witnesses, from the writings of his best friend Mike Judge, to his own yearbook entries, to James Roche, his roommate at Yale (male roommate I might add), who all have described Judge as being a heavy drinker and an aggressive and angry drunk. Meaning, Kavanaugh is likely telling the absolute truth that he does not recall this event not because it did not happen, but because he was a drunkard who blacks out like drunkards are known to do.
3. Was the witness honest and straightforward in answering the attorneys’ questions?
The differences in how Dr. Blasey Ford and Judge Kavanaugh appeared during yesterday’s hearing could not be more pronounced. Dr. Blasey Ford, despite admitting being terrified, was calm, respectful to both Republican and Democrat questioners alike, deliberate and fully resolved in her memories of what transpired 36 years ago.
Judge Kavanaugh, from the moment he took his seat, appeared incandescent; his face was ruddy, his tone was arrogant and angry, his replies to questions from Democrats were haughty and dismissive, his demeanor throughout his testimony was petulant, entitled and showed that even beyond the sexual allegations, that his judicial temperament simply is not suited for the Supreme Court.
(Kavanaugh, irate, under questioning)
In consideration of my last point, judicial temperament, when the completely unhinged Kavanaugh suggested that Dr. Blasey Ford’s testimony was a coordinated smear campaign by Democrats seeking the “revenge of the Clintons,” he made a critical error in that if confirmed, Kavanaugh may be forced to recuse himself from every single case or controversy that arises from Democratic sponsored legislation by Congress or the individual states all because of his ill-tempered and highly politicized opening remarks.
Some will counter, “well Hobbs, wouldn’t you lose your cool if you were the subject of such highly personal attacks?” My answer is, “no,” not if I know that the attacks are lies. Not if O know that they are lies and if I calmly refute the same, my confirmation is not in doubt. Indeed, even when Clarence Thomas denied Professor Anita Hill’s allegations of sexual harassment, he did not scream and yell like a deranged lunatic.
Further, Judge Kavanaugh played lawyer with a number of his answers yesterday. For example, when asked about why his best buddy, writer Mark Judge, was not testifying, he responded that Judge and several other witnesses had provided sworn affidavits refuting Dr. Blasey Ford’s claims. Folks, a lawyer can get a witness to sign an affidavit saying that the sky is purple and that the Earth is flat. That said, a witness appearing before a Senate panel or trial, subject to direct and cross-examination, is the only real way to confront them and flesh out the truth. Indeed, I find it telling that Judge did not testify; if any of my best friends from my school days were being falsely accused about acts that I witnessed back then, there is nothing on Earth that would prevent me from appearing to testify on their behalf.
But perhaps the worst part of Kavanaugh’s testimony was what he DID not say in response to questioning from Democratic Senator Dick Durbin. Durbin asked Kavanaugh multiple times whether he would agree to delay the proceedings for a week to allow the FBI to investigate both Dr. Blasey Ford’s testimony, and the new allegations of sexual misconduct levied by his Yale classmate Deborah Ramirez, and Jennifer Swetnick, an acquaintance from high school who holds high-level government clearance who claims that she witnessed Kavanaugh, Judge and their crew behave precisely in the manner described by Ford and Ramirez. Kavanaugh simply could not compel himself to say “yes, bring on the FBI.”
Now, the casual reader or blind Kavanaugh supporter may say, “but Kavanaugh has been examined by the FBI six times.” What most that are unfamiliar with judicial nominations do not know is that the FBI, during the nomination process, ONLY interviews names of people submitted by the candidate(s). Meaning, the FBI is not going out and fishing for dirt. Meaning, the FBI, now that alleged crimes and bad acts have been alleged, should have an opportunity to interview these witnesses and provide a memo to the committee and President Trump of their findings.
Such is why this morning, the American Bar Association, the same one that Kavanaugh bragged about giving him its highest “well qualified” ranking, has demanded that the proceedings stop to allow the FBI to fully vet these sexual misconduct allegations.
4. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?
As for Dr. Blasey Ford, the only prior inconsistency is in the number of people that she remembered at the house the night of the attack.
Judge Kavanaugh, however, sat for an interview with Fox News where he portrayed himself as a choir boy who worked hard in school, and treated all women with respect. The problem is that not only are their independent witnesses who have testified that he and his crew were drunken Hellions, but he made some admissions under oath that yes he drank beer–often to excess–and that he did some things that he looks back upon and cringes.
For the majority of my life, I grew up in mostly black settings. With the exception of two years at the FSU Developmental Research School and three years at the University of Florida College of Law, I spent very little time around wealthy white boys/men like Judge Kavanaugh and his crew.
When I enrolled at UF Law at the age of 23, I was able to observe some “Frat boys” of Kavanaugh’s ilk and see the drunken behavior, the drug use, the alcohol abuse, the groping and wanton disrespect of women, some of whom laughed it off all the while wiggling to get free from some drunken frat boy’s vise grip. So I am not surprised, in the least, to think that Kavanaugh could be accused of such deeds and claim that they are false–and be sincere in his belief that it didn’t happen because he was in an alcoholic’s purple haze.
But what I find most troubling is that instead of admitting that he was a drunken reveller, Kavanaugh lied about his past acts. First, he lied about his yearbook entries: (For those who don’t know, the whole “Renate Alumni” reference in the yearbook was Kavanaugh and his friend’s way of boasting that they had sexual relations with Renate Schroeder Dolphin, a woman who this past week detailed how the revelation of such has truly hurt her. If you believe Kavanaugh’s explanation that such was merely a friendly reference and not related to sex, you are naive or conscientiously ignorant).
Kavanaugh also lied under oath about the meaning of the slang “Devil’s Triangle,” a reference in his yearbook that most everyone born in Generation X and beyond knows to be a sexual liasion involving two men and one woman.
Why has Kavanaugh lied? He has lied because power is an addictive opiate. He lied because from the beginning of this American pageant, wealthy white men have raped or defiled white women, enslaved Black women, and conquered Native American women with impunity. He lied because in his mind, he simply did not believe that his past would ever come back to bite him, because the media do not cover lower court judicial nominations the way that a Supreme Court nominee is covered.
This last point, the coverage of the Supreme Court proceedings, is what led Dr. Blasey Ford to write her letter to Senator Diane Feinstein. A letter that was written, mind you, long before President Donald Trump selected Brett Kavanaugh. A letter that, had Feinstein forwarded to the president’s advisers prior to the selection, may have allowed Trump to select one of the other 20 plus conservative judges on his list.
Or maybe not; Trump may have received this info timely and still selected Kavanaugh in that Trump, like many other rich white men, gives little credence to allegations of sexual misconduct by himself or anyone else, whether it’s pedophile former senate candidate Roy Moore in Alabama, or Baccanalian Brett Kavanaugh in Washington.
(Minutes after eight hours of testimony, President Donald Trump issued this Tweet that showed that once again, he disbelieves a woman who was sexually assaulted)
Which leads to why I believe Dr. Blasey Ford: Ford has nothing to gain, has been subjected to death threats, and she provided this information to her therapist in 2012, and to a sitting member of Congress long before Kavanaugh was picked. Dr. Blasey Ford does not deserve to be pilloried like some modern-day Hester Prynne for telling the truth about what happened, nor should her claims be summarily dismissed amid the sophistry that “I believe she was attacked, I just think she doesn’t have the right attacker.” Such is the same lie that was used to smear Sally Hemings, with “historians” swearing that her children were fathered by Thomas Jefferson’s nephew, not the third president himself.
No, Dr. Blasey Ford deserves the utmost respect for having the courage to say #MeToo, and to confront her attacker in the very halls of power that have promoted and protected patrician rapists from time immemorial.