The American prosecutorial community held its collective breath when prosecutor Rachel Mitchell was selected to question Dr. Christine Blasey Ford during Judge Brett Kavanaugh's Senate confirmation hearing. This was the first time that members of the Senate Judiciary Committee hired an active state prosecutor to question a witness -- and the nominee -- in front of the world. Generally, the consensus amongst prosecutors was that Mitchell had a good reputation, there was no precedent for this, and we would wait and see what happened. What ultimately did happen is that leading up to, during, and after the hearing, Mitchell improperly leveraged her position as a prosecutor to further the goals of a private client. Prosecutors in this country are rightly held to a different standard than other lawyers. This is not a partisan issue, and Mitchell’s conduct must not become accepted precedent in prosecutorial practice.
The National District Attorney's Association (NDAA) National Prosecution Standards, set forth by the nation’s largest prosecutors’ organization, which represents 2,500 elected and appointed district attorneys and 40,000 assistant district attorneys, establish that in counties that cannot afford to hire a full-time prosecutor, prosecutors are allowed to advocate for private clients provided there is no conflict of interest. And in such private practice, the prosecutor "should not represent clients in any criminal or quasi-criminal related matters, regardless of the jurisdiction or the case.” Reasonable minds can disagree about whether the Senate hearing was a quasi-criminal related matter. Senate hearings are not state or federal criminal court proceedings, although facts elicited under oath could help determine whether local authorities should commence criminal proceedings.
Even if the hearing did not constitute a "quasi-criminal proceeding," the standards go on to state that, “The prosecutor should avoid representing to private clients or prospective clients that the status of a prosecutor could be an advantage in the private representation.” Moreover, “The prosecutor should not indicate his or her status as a prosecutor on any letterhead, announcement, advertising or other communication involved in the private practice.” But in blatant disregard of this prohibition, the Senate members, understanding the “status of a prosecutor” as a tactical advantage, intentionally sought one out. Indeed, the committee staff interviewed 30 sex crime prosecutors before selecting Mitchell. Then, Mitchell and her clients indicated her status as a sex crimes prosecutor on every announcement, and in every local, state, national and international news outlet. And in fact, Mitchell further evoked her status in a memorandum she drafted for her clients after the meeting, citing a “reasonable prosecutor standard.”
Surely all experienced prosecutors and survivor advocates appreciated that Mitchell began her cross-examination of Dr. Ford: “...the first thing that struck me from your statement this morning was that you are terrified, and I just wanted to let you know I’m very sorry. That’s not right.” And consistent with survivor-centered best practices, Mitchell neither interrupted Dr. Ford nor rushed her through her answers. However, the four hours of Dr. Ford’s testimony reflected that Mitchell had been hired to defend Judge Kavanagh. For a total of 55 minutes, in short bursts of 5-minute increments, Mitchell asked leading questions intended to highlight perceived discrepancies within Dr. Ford’s testimony. She questioned Dr. Ford on her motive in coming forward, gaps in her memory, whether she was receiving any political payment, whether she was on medication, who paid for her polygraph and when it occurred, and whether the Democratic senators colluded with Dr. Ford’s lawyers. On the other hand, Mitchell questioned Judge Kavanaugh for about 15 minutes, notwithstanding that given her background, her real expertise as a cross-examiner is in the cross-examination of alleged perpetrators rather than survivors. Mitchell's questions were intended to introduce evidence that her clients thought exonerated him, and allowed Judge Kavanaugh to dispense with potentially damaging issues early in a non-adversarial manner.
The totality of the hearing clarified that Mitchell was hired outside counsel for the Republican members of the Senate Judiciary committee looking to defend Kavanaugh from Dr. Ford’s allegations. Mitchell’s one-sided memorandum addressed to the “Republican senators of the Judiciary Committee” further highlighted this. If the real concern was finding a questioner who had expertise in trauma-informed survivor-centered best practices, the Senate members could certainly have hired a forensic Interviewer whose only job is to gather facts from alleged trauma survivors. Rather the Senators opted to have the alleged survivor cross-examined by a sitting sex crimes prosecutor on live television.
Mitchell was hired by and received payments from members of the Senate to advocate on behalf of Judge Kavanaugh. She used her status as a sex crimes prosecutor to the advantage of a private client, in violation of the National Prosecution Standards. The act of hiring a sex crimes prosecutor to fill this role telegraphed skepticism about Dr. Ford's testimony even before it began. Perhaps that was the point. The NDAA establishes a higher standard for prosecutors, and Americans should expect better from our prosecutors, and must not stand for this to happen again.
Lucy Lang is the executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice.