Prosecutors Don’t Bring Cases the Way Rachel Mitchell’s Kavanaugh Memo Says — Not Even in Her Own Arizona Office

From the moment Arizona sex crimes prosecutor Rachel Mitchell was chosen by Republicans to question Christine Blasey Ford before the Senate Judiciary Committee, colleagues were quick to describe her as fair and trustworthy — an attorney who shuns controversy. “Rachel doesn’t seek attention as a lawyer,” her former supervisor Cindi Nannetti told the Arizona Republic. “She has excellent judgment. She demands thorough investigation by police officers. Her bottom line is justice.”

That may be an apt description of Mitchell’s objectives and track record in Arizona. But whatever her rationale for accepting her role in the saga of Brett Kavanaugh’s nomination to the Supreme Court, it has not been about justice for victims. Mitchell’s one-sided questioning of Ford last week may have been no fault of her own — the Republican senators suddenly removed Mitchell partway through Kavanaugh’s testimony, suggesting that she was not working out as well as they had hoped.

“I think this was the wrong assignment at the wrong time for her,” her old boss, former Maricopa County Attorney Rick Romley, told the Phoenix New Times last week after the hearing.

The real value in bringing Mitchell to the hearing — apart from avoiding the “bad optics” of a bunch of old, white men grilling Ford — became clear this week, when she released her “independent assessment” of Ford’s allegations of sexual assault by Kavanaugh in the early 1980s.

Mitchell’s nine-page memorandum cast Ford’s case as unusually weak. “A ‘he said, she said’ case is incredibly difficult to prove,” Mitchell wrote, invoking her 25 years of experience working on sex crimes prosecutions. “But this case is even weaker than that.” Mitchell concluded, “I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee.”

The memo sent the message the committee’s Republicans had presumably wanted and delivered it with the legitimacy of a career prosecutor’s assessment. But, beneath the surface, Mitchell’s memo on the Ford-Kavanaugh case obscures how prosecutors — in Maricopa County, Arizona, and elsewhere — actually decide when and how to pursue criminal cases.

As an analysis of the memo published by The Intercept shows, Mitchell’s findings are slanted at best. There was no weighing of the credibility of the accuser versus the accused. And Mitchell went so far as to repeat many of Kavanaugh’s talking points throughout the hearing, including some that are highly misleading. For instance, Mitchell wrote that Ford “struggled to identify Judge Kavanaugh as the assailant by name.” But anyone who was watching the hearing saw that Ford never wavered about the identity of the boy who assaulted her. The fact that she did not name him to her therapist or husband does not mean she did not recall who he was.

At least one case currently pending in Maricopa County suggests that old or incomplete evidence isn’t always a deterrent for Mitchell. Former prosecutor Matthew Long is representing a man in a 30-year-old case only now being pursued by Mitchell’s office. “That was investigated back in the late ’80s, early ’90s, and it was determined there’s not enough evidence to go forward,” Long told The Intercept. “Well, they came back 30 years later. No new evidence, and [they] said, ‘Yeah, we think we should prosecute now.’”

“It didn’t seem to be at all consistent with what was laid bare there in the actual hearing. Nor was it consistent with the training that Mitchell herself provides and relies on in handling her own cases.”

Mitchell’s memo proved particularly offensive to Long, who has been outspoken since it was released on Sunday. Mitchell supervised Long for about two years between 2005 and 2007, when he worked as a sex crimes prosecutor in Maricopa County. (He went on to head up sex crimes prosecution in a neighboring county before turning to defense work.) “When I first saw her involvement in this, I was at peace,” he said. In his experience, Mitchell was someone he relied upon to seek truth “through a fact-based, evidence-based approach.” Mitchell’s questions at the hearing reflected this, he said, although “she clearly was there in order to cross-examine Dr. Ford.” But when she released her memo, Long was deeply disturbed: “It didn’t seem to be at all consistent with what was laid bare there in the actual hearing. Nor was it consistent with the training that Mitchell herself provides and relies on in handling her own cases.”

Mitchell’s office had already raised controversy for the partisan posturing of her boss, Maricopa County Attorney Bill Montgomery, who, from his personal Twitter account, retweeted a statement by Sen. Lindsey Graham, R-S.C., calling Kavanaugh’s treatment “despicable.” In a subsequent tweet, Montgomery compared the Democrats on the Judiciary Committee to a “pack of hyenas,” adding the hashtag #ConfirmKavahaugh. To Long, the memo highlights the way in which the Kavanaugh hearings boil down to “politics and emotion. Apparently even Ms. Mitchell is not immune to that.”

Partisanship aside, prosecutors in Maricopa County aren’t exactly known for their restraint when it comes to pursuing convictions. Quite the opposite. The office has gained notoriety for zealousness — overreach, overcharging, and blatant misconduct. The examples are many, though the best known and highest profile may be that involving former elected County Attorney Andrew Thomas, who was accused of pursuing politically motivated and meritless prosecutions of his perceived enemies. In 2012, Thomas and one of his deputies were actually disbarred because of this conduct, while a third lawyer had her license suspended. In a scathing 247-page ruling, the state supreme court’s disciplinary judge wrote that Thomas and his colleagues had “prosecuted innocent people, without evidence, and did not blink.”

(Thomas, for his part, penned a 2001 biography of U.S. Supreme Court Justice Clarence Thomas, which, according to reviews, included counterarguments to the sexual harassment allegations brought against the judge during his 1991 confirmation to the court.)

Long, the former Maricopa prosecutor, said it was fair to characterize the county attorney’s office as overzealous — though he noted that the office is hardly an isolated example of such an approach. “It’s a function of the politics,” he said, “and that’s really the problem of all prosecutor offices throughout this country.”

Rachel Mitchell makes an opening statement in the trial of priest Karl LeClaire at court in Mesa, Ariz., on Oct. 27, 2004.

Mitchell’s insistence that prosecutors would not proceed with a case based on Ford’s allegations rings especially hollow considering a case handled by Thomas beginning in 2004, which seemed to take the opposite approach — to proceed despite countervailing evidence.

In that case, which sparked protests at the Arizona State Capitol, Courtney Bisbee, then 33, was accused of sexually molesting a 13-year-old boy while working as a school nurse in Phoenix. Convicted following a bench trial in 2006, Bisbee was sent to prison for 11 years. Yet the case against her began to unravel soon after her conviction. In 2007, the alleged victim’s brother recanted his testimony in a sworn deposition, saying that the allegation against Bisbee was concocted by his mother, who hoped to win money in a lawsuit. The father of the boys provided an additional affidavit saying that he told both detectives and the Maricopa County Attorney’s Office as early as the fall of 2004 that the story had been “coerced” by the mother of Bisbee’s accuser. Yet prosecutors withheld this crucial exculpatory evidence.

In a 2008 investigation, the Phoenix New Times revealed that Maricopa County prosecutors were “well aware of the new evidence in the Bisbee case.” Among those who repeatedly contacted the office was a private investigator who spoke to Rachel Mitchell. As she recalled it, the private investigator told Mitchell, “We have a young lady sitting in prison that doesn’t need to be there.” In response, the New Times reported, Mitchell gave her “the runaround.” Bisbee was released from prison in 2016 at the end of her sentence, but the state of Arizona has fought her attempts to clear her name.

The scant evidence against Bisbee and Mitchell’s apparent lack of discomfort with the idea that her office might have sent an innocent woman to prison stands in stark contrast to the case she makes in her memo, questioning Ford’s credibility and claiming that a case based on her allegations alone is one that no “reasonable prosecutor” would take on.

“No one else was invited to testify under oath to offer potential corroboration.”

In Ford’s case, the factors that Mitchell points to as being dispositive — like the lack of corroboration — are not uncommon in sex crimes cases and unsurprising in the Kavanaugh case. For instance, there is a simple explanation for the absence of a witness backing up Ford’s account: “No one else was invited to testify under oath to offer potential corroboration,” Daniel Medwed, a professor at Northeastern University’s law school, whose research includes a focus on prosecutors, wrote in an email to The Intercept.

Medwed noted that Mitchell’s assessment cuts against her credentials as an experienced sex crimes prosecutor. “There is no corroboration requirement generally for crimes, and this language by Mitchell reminds me of outdated rules that did apply things like corroboration and resistance requirements” for rape cases. “Strange and disturbing, especially for a sex crimes prosecutor who should presumably have a better handle on the realities of these cases.”

Prosecutor Rachel Mitchell points to a map as she questions to Christine Blasey Ford at the Senate Judiciary Committee hearing on Sept. 27, 2018.

Mitchell’s list of deficiencies in Ford’s allegations bothered Long, the former prosecutor. Put simply, he said, Mitchell knows better. In the memo, he said, she betrayed her training and the standards he knew her to have when vetting cases.

One thing that particularly disturbed him was Mitchell’s focus on Ford’s inability to narrow down a date for when the alleged assault occurred. That, he said, “is absurd. It is offensive. It is laughable, because she knows better.”

It is not at all uncommon for prosecutors to leave at least some wiggle room around the date that a crime is believed to have happened — using the phrase “on or about” is nearly ubiquitous where filing criminal charges is concerned. And in Maricopa County, Long says that Mitchell’s office “routinely” files charges with an expanded, even multi-year, window during which a crime is alleged to have taken place. “In the criminal justice system, date is not an element” of the crime, he said. “It’s not … something that we have to prove. She knows this.” And Mitchell trains prosecutors to understand this, he said: “In fact, we expect the date is going to be the one thing a person is not going to remember.” Mitchell’s decision to suggest otherwise in the letter “appears to be merely designed to mislead the public,” he said. “Not something I can abide.”

“It’s misleading because that is not the only option that a prosecutor agency has: They have an option to file charges, to turn charges down, or to ask for a further investigation.”

Long took exception to Mitchell’s suggestion that this case is not one that could be prosecuted, if it were to come to that. He notes that she is “absolutely correct” in saying that, in its current form, the case is not one that she would file — which might be true, but doesn’t tell the whole story. “It’s misleading because that is not the only option that a prosecutor agency has: They have an option to file charges, to turn charges down, or to ask for a further investigation,” Long said. Mitchell should have pointed to that latter option in her memo, declaring that further inquiry was needed. In sex crimes, he said, that happens in “the majority of cases.”

The FBI is doing that now, but it is unclear to what end. News outlets have reported accounts of individuals with information about Kavanaugh’s conduct trying to contact the FBI, but failing to get responses. Meanwhile, a second accuser, Deborah Ramirez, reportedly gave FBI agents a list of nearly two dozen people who could corroborate her allegation that Kavanaugh exposed himself to her while in college. “We need to start by listening and demonstrating that we can prove what they say by independent objective evidence,” said Long. “But the reality is nobody knows even what to look for.”

Long said that the question the Senate Judiciary Committee should be asking is, “What could we do to ensure that we get this right? The fact that they didn’t ask that question and that Rachel Mitchell didn’t offer that demonstrates that nobody is concerned with getting it right, they’re concerned with being right; that is, getting the [Supreme Court] seat.”

Long said he views both Republican and Democratic senators as failures on this point. (Long decried the Democrats’ use of a polygraph, a notoriously unreliable form of evidence that is typically inadmissible in criminal proceedings.)

“They would all rather have the argument rather than the facts, because what it comes down to is nobody gives a fuck about this victim,” he said. “Victims are being stood on, on their throats, as each side plays … ‘victimhood’ as a pawn in this goddamn war, this cultural war.”

Top photo: Rachel Mitchell at a Senate Judiciary Committee hearing in Washington, D.C., on Sept. 27, 2018.