Prosecutor: ‘He Said, She Said’ Case Incredibly Difficult to Prove, Kavanaugh Allegation Even Weaker Than That

Rachel Mitchell questions Christine Blasey Ford during a Senate Judiciary Committee hearing / Getty Images
• October 1, 2018 8:52 am


Rachel Mitchell, the chief of the Maricopa County attorney’s office Special Victims Division, wrote in a memo that Christine Blasey Ford's allegation against Supreme Court nominee Brett Kavanaugh is weaker than a "he said, she said" case.

"A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that," Mitchell wrote to Senate Republicans in a memo Sunday, which was obtained by the Washington Post. "Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them."

Ford first spoke with Rep. Anna Eshoo's (D., Calif.) office and wrote a letter to Sen. Dianne Feinstein (D., Calif.) in July about her allegation, but she expressed her desire to remain anonymous. In September, however, she told the Washington Post that Kavanaugh, then a junior in high school, attacked her when they were at a party in Maryland in the early 1980s. She alleged Kavanaugh forced her onto a bed, groped her, and tried to remove her clothes while he was heavily intoxicated, all while his friend Mark Judge watched. She said she managed to escape after Judge jumped on them, sending them tumbling and giving her an opportunity to get out of the room.

Kavanaugh had denied the accusation, and both he and Ford testified before the Senate Judiciary Committee last Thursday. Mitchell, who has worked extensively on sex crime cases, was brought in by committee Republicans to question Ford.

Mitchell, clarifying that her evaluation of Ford's allegation is from a legal point of view, said there is not enough evidence for a prosecutor to try the case and there isn't sufficient evidence to satisfy the preponderance-of-the-evidence standard.

She outlined several points as to why Ford's allegation is weaker than a typical "he said, she said" case.

  1. Dr. Ford has not offered a consistent account of when the alleged assault happen.
  2. Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.
  3. When speaking with her husband, Dr. Ford changed her description of the incident to become less specific.
  4. Dr. Ford has no memory of key details of the night in question–details that could help corroborate her account.
  5. Dr. Ford's account of the alleged assault has not been corroborated by anyone she identified as having attended–including her lifelong friend.
  6. Dr. Ford has not offered a consistent account of the alleged assault.
  7. Dr. Ford has struggled to recall important recent events relating to her allegations, and her testimony regarding recent events raises further questions about her memory.
  8. Dr. Ford's description of the psychological impact of the event raises questions.
  9. The activities of congressional Democrats and Dr. Ford's attorneys likely affected Dr. Ford's account.

Mitchell provided details to each point using Ford's own testimony, her polygraph test, and the letter she sent to Feinstein.

The Post reported Ford described the assault to her therapist in 2012, but she has refused to authorize the release of the notes taken by the therapist. There have been reports discrepancies exist between Ford's letter she sent to Feinstein and the therapist notes, particularly when it comes to who was at the party. Ford said during testimony Thursday that the therapist made a mistake in her notes in saying four men were involved in the assault. She added that while she could confidently say there were at least four others who attended, in addition to herself and Kavanaugh, she could not guarantee there weren't others.  Ford did release the results of a polygraph test she took in August, where she was determined to be telling the truth. However, the polygraph notes also have discrepancies when compared to Ford's letter.