Maricopa County prosecutor Rachel Mitchell’s unprofessional memo

Republican strategist Rick Wilson authored the book Everything Trump Touches Dies.

This is likely to include the professional legal career of Maricopa County prosecutor Rachel Mitchell.

Hired to be a “human shield” for Republican senators in questioning Christine Blasey Ford last week, she proved to be ‘not effective’ in questioning Ford.

Mitchell had barely begun asking questions of Judge Kavanaugh when she zeroed in on his July 1 calendar entry which might corroborate Dr. Blasey’s recollection of a party. Republican senators insulted her by summarily dismissing her, never to be heard from again.

Eleven old white men didn’t want to hear from any woman, even their hired gun.

Mitchell has since compounded her catastrophic performance by providing a partisan political memo to the GOP senators who hired her. Her memo violates the rules of professional conduct for attorneys and prosecutors. Her desire to be in the national spotlight may wind up costing her.

Mimi Rocah, a Distinguished Criminal Justice Fellow at Pace University Law School and former assistant U.S. attorney for the Southern District of New York from 2001 to 2017, and Daniel S. Goldman, a Fellow at the Brennan Center for Justice and formerly an assistant U.S. attorney for the Southern District of New York from 2007 to 2017, explain, GOP prosecutor Rachel Mitchell’s critique of Christine Blasey Ford is incomplete and flawed:

Rachel Mitchell, the Arizona state prosecutor hired by the Republicans on the Senate Judiciary Committee to conduct questioning during the Judge Brett Kavanaugh hearing on Sept. 27, has released a memo analyzing the sexual assault allegations by Dr. Christine Blasey Ford. Mitchell concludes that no “reasonable prosecutor would bring this case based on the evidence before the Committee” and that the evidence was not “sufficient to satisfy the preponderance-of-the-evidence standard.” As former federal prosecutors in the Southern District of New York who prosecuted and supervised cases involving human and sex trafficking as well as child exploitation, we find her analysis to be incomplete and deeply flawed.

As an initial matter, many questions exist about Mitchell’s claimed independence, including whether and how much she is being paid, and by whom; what Senate Republicans talked to her about before the hearing; and why she ceased asking questions shortly after Kavanaugh began testifying.

When senators question a witness at a hearing, their political biases are obvious. The same is true when prosecutors question witnesses in court — their client is “the people.” But in this unprecedented scenario, these biases were far less clear. Indeed, although Mitchell cross-examined Ford on behalf of the Republican members of the Judiciary Committee — quite unsuccessfully in our view — the committee chairman, Sen. Chuck Grassley, R-Iowa, cut off her questioning of Kavanaugh shortly after his testimony began. Notably, this happened right after Mitchell questioned Kavanaugh about the possibly incriminating July 1 entry on his calendar. The end result was that Mitchell did not question Kavanaugh in the same way that she did Ford, nor did the Republicans make any attempt to do it for her. This alone severely undermines her assessment.

Moreover, we are stunned that a career prosecutor like Mitchell would not acknowledge that, at least prior to the hearing, no meaningful, independent investigation had yet been conducted. Nor did she call for such an investigation. We can confidently say that no “reasonable prosecutor” in this country — state or federal — would ever assess the merits of a case without conducting a basic investigation. Such an investigation would always include interviewing any other persons alleged to have been in the room at the time of the incident in question.

A reasonable prosecutor evaluating this case would attempt to corroborate the stories of both Ford and Kavanaugh by interviewing other witnesses, tracking down alleged witness Mark Judge’s employment records and by drilling down on Kavanaugh’s calendar to see if it could corroborate the party in question. These are all basic investigative steps that would need to be completed before assessing the credibility of allegations such as Ford’s. And yet none of these steps were taken before Mitchell wrote her memo.

Mitchell’s memo also fails to address a central question that any reasonable prosecutor would examine: motive. There can be no doubt that Ford’s life has been turned upside down — no one would want to endure what she has since her allegations have been made public. Moreover, when she first told her couples therapist about the assault — prompted by her irrational but understandable desire to feel secure in her own home — Kavanaugh was not, contrary to Mitchell’s assessment, on the short list of Supreme Court candidates. On the other hand, Kavanaugh has said numerous times that being on the Supreme Court was a lifelong ambition of his, and it became clear that the only thing standing between him and that seat are the current allegations against him.

Similarly, any reasonable prosecutor would also weigh the fact that Ford has repeatedly requested an FBI investigation and has submitted to a lie-detector test, while Kavanaugh repeatedly refused to directly call for either despite being pressed at the hearing to ask for an investigation. Mitchell’s failure to even address these issues is stunning.

Worst of all, the Mitchell memo does not even address Kavanaugh’s testimony. It is one thing for a purportedly neutral prosecutor to misleadingly frame Ford’s allegations as a case of “he said, she said.” It is something else altogether to ignore what “he” actually said. Mitchell does not address Kavanaugh’s evasiveness, his combativeness, his anger, his highly suspect answers to questions about whether he had ever blacked out from drinking or his suspect responses to questions about specific references in his yearbook.

As all prosecutors know, small lies matter, particularly where the small lies are meant to protect an unequivocal denial. In this case, Kavanaugh’s denial would be rendered essentially meaningless if he admitted that he blacked out in high school from alcohol. Moreover, in our experience as prosecutors, the witnesses and defendants who thumped their chest the most were not doing so because they were falsely accused; rather, they were the most likely to be lying. They were relying on passion and emotion — not the facts — to convince others of their truthfulness.

Even if you overlook the underlying issues with Mitchell’s memo, her assessment of the truthfulness of Ford’s testimony also suffers from obvious analytical flaws. Here are just a few examples:

• Mitchell concludes that “Dr. Ford has not offered a consistent account of when the alleged assault occurred,”including assertions Ford made about the timing of the event which changed slightly between her original letter and her Senate testimony. Anyone who has dealt regularly with victims of traumatic crime knows that date specificity is challenging, particularly when the event was 36 years ago, and that people’s memories improve the more they think about a particular incident and frame it differently. Even Mitchell acknowledged that “it is common for victims to be uncertain about dates.” Yet, she completely ignores this in her conclusion. What’s remarkable in our view is actually Ford’s consistency about the time frame — the attack happened during a summer while she was a teenager. Anything more or less than that is just unrealistic nitpicking.
• Mitchell concludes that Ford “struggled” to identify Kavanaugh as the assailant by name. The critique here is apparently that Ford did not tell her therapists the name of her attacker. As Mitchell surely must recognize, the identity of one’s attacker isn’t relevant in therapy; rather, the focus is on the attack and its emotional impact, not the identity of the individual. In fact, Ford’s explanation for why she told her husband about the assault in 2012 — because she wanted two front doors in her renovated home due to PTSD she connects back to the attack — was so powerful and so sensible that this unfounded line of analysis from Mitchell reeks of desperation and overreach.
• Many of Mitchell’s critiques of Ford’s testimony are related to her arguing that Ford has “no memory of key details of the night in question.” Mitchell’s definition of “key details” is surprising for a prosecutor of so many years. One doesn’t need to be a trained investigator or a psychologist to understand how human memory works. Ford remembers the traumatic events of the night — the stairs, the bed, “the laughter, the uproarious laughter” — not the superfluous, secondary details of who else was there or how she got home. It is the job of investigators — not crime victims — to fill in the blanks or refute them. Surely Mitchell knows this.
• A major point in Mitchell’s memo is the assertion that Ford’s account of the assault “has not been corroborated by anyone she identified as having attended” the party. This is result-oriented wordsmithing. Mitchell, more than any senator, should know that letters of denial sent by lawyers are no substitute for thorough questioning under penalty of perjury. Regardless, others not involved in the assault would have no reason to remember an otherwise unremarkable night 36 years ago. But most important, everyone other than Brett Kavanaugh — including Mark Judge — did not refute Ford’s testimony; rather, they simply said they have no recollection of it. Thus, Mitchell’s reliance on a lack of corroboration is misleading at best and disingenuous at worst, because any prosecutor knows that individuals who did not witness the assault would have no reason to remember it. Further investigation is necessary to attempt to jog witnesses’ memories or otherwise corroborate or refute the account. Without that, a lack of corroboration is meaningless.

Finally, Mitchell’s analysis ignores the fact that some corroboration already does exist. First, Kavanaugh’s own calendars show that during the time period Ford reported he socialized with the several of the key people she singles out. In fact, all of the boys that Dr. Ford can identify from that party were in Kavanaugh’s calendar on July 1, 1982. Second, both Kavanaugh and Ford’s families were members of a country club where Ford says she had been before the attack, which is consistent with her testimony that she was in her bathing suit during the attack. Third, statements in his own yearbook and by high school and college classmates point to a man who drank excessively and was an aggressive drunk, which is also consistent with Ford’s testimony and the nature of the assault. Finally, Ford’s statements in 2012 and 2013 are corroboration for her Senate testimony that would be admissible in a court of law.

Rachel Mitchell may be a very fine prosecutor. But her one-sided, misleading memo draws broad conclusions without any foundation, doing a great disservice not only to the reputation of prosecutors and trained investigators everywhere but also to this confirmation process.

I smell a possible bar complaint.

E.J. Montini of The Republic sums it up nicely. Rachel Mitchell went from respected prosecutor to political hack:

It’s astonishing how quickly politics corrupts people.

Latest example?

Maricopa County prosecutor Rachel Mitchell.

By all accounts she has had a long and honorable career as a tough, fair prosecutor. Then she got her 15 minutes of fame and … poof! … political hack.

Mitchell provided a memo to the Republicans on the Senate Judiciary Committee who hired her to serve as cover for the cowardly men on the committee and question Dr. Christine Blasey Ford over her allegations that Supreme Court nominee Brett Kavanaugh sexually assaulted her when they were in high school.

Professional at the hearing, then

Mitchell was straightforward and professional in her questioning but it was clear from the beginning that she didn’t have enough information and not nearly enough time to pursue the case.

Still, at the end, Mitchell produced a memo to her Republican benefactors in which she writes:

“In the legal context, here is my bottom line: A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.”

What a sad statement from a seasoned prosecutor.

What the memo should have said

Mitchell must know better.

The only thing Mitchell should have included in her memo, given the fact that she chose to write one, is that she didn’t have nearly enough time or information to draw ANY conclusion.

That’s what would have happened if the case brought before her in Maricopa County. She wouldn’t have discounted Dr. Ford’s accusation but told investigators to go out and do their job and provide her with enough material to make an informed decision one way or the other.

A former associate of Mitchell’s in the Maricopa County Attorney’s office took Mitchell and her memo to task in Mother Jones.

Matthew Long, a former sex crimes prosecutor, told Mother Jones, “I’m very disappointed in my former boss and mentor. I find her willingness to author this absolutely disingenuous and that she knows better…Because she should only be applying this standard when there’s an adequate investigation … Mitchell doesn’t have sufficient information to even draw these conclusions.”

* * *

Any good prosecutor knows that when evaluating a case like this it is important to thoroughly explore the personal histories of the two parties in order to provide insight into which one is telling the truth.

Those are the kind of things that Mitchell could have – and should have – suggested in her memo.

Instead, she chose the position of a hired gun and unloaded on Dr. Ford.

I’d guess that Mitchell would never accept such sloppy, superficial work from a junior prosecutor at the Maricopa County Attorney’s office.

But then, this wasn’t about justice. It was about politics.

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