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Seth Abramson @SethAbramson
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(THREAD) This thread considers the Kavanaugh-Ford case as an investigator would—an important perspective, given that the GOP is petrified of a proper investigation and Trump allies are doing all they can to obscure how an investigation would proceed. I hope you'll read and share.
1/ First, understand that American society determines how long a crime can still be investigated and prosecuted by one means and one means only: a statute of limitations. Crimes without a statute of limitations—which can be charged at any time—are carefully chosen by our society.
2/ If a homicide or rape allegation has no statute of limitations in a given jurisdiction, its alleged date of offense is only relevant as a matter of the investigative obstacles an investigator might face—we don't re-litigate the statute of limitations when an allegation's made.
3/ As Montgomery County (MD) police have confirmed, Dr. Ford's allegation—of a completed sexual assault and attempted rape (which carries the same potential maximum penalty as a rape)—can still be charged. In law enforcement, that *ends* the statute of limitations debate. Period.
4/ So at this point, the age of the allegation is merely an investigative matter—basically, law enforcement must determine the extent to which evidence has deteriorated. And certainly, after 30+ years, the physical (hard) evidence of the case is largely (but not *entirely*) gone.
5/ Fortunately, hard evidence isn't the chief form of evidence in criminal law—testimonial evidence is. And fortunately, in many criminal cases a wealth of circumstantial evidence—*not* a dirty phrase in the law—is present and probative, even where direct evidence is more scarce.
6/ There are different types of evidence, and certain cases may not produce certain types of evidence. So, for instance, a sexual assault/attempted rape of the sort Dr. Ford describes might not produce physical evidence like documents or trace biological evidence like hair/semen.
7/ Even had Dr. Ford reported the assault immediately, there's no sense semen would've been found on the scene—and perhaps there wouldn't have been any documentation about the event, either. Trace biological evidence like hair *may* have been on-scene but wouldn't be dispositive.
8/ In short, a case like this—on the facts we know—would've been primarily a case involving *testimonial* evidence, as well as investigators' ability to corroborate certain "physical" evidence (the presence/absence of persons in certain places, locations and distances and so on).
9/ It's possible there could've been other documentary evidence available at the time—phone records, receipts—or biological evidence like fingerprints, but some of these forms of evidence disappear/degrade so quickly they aren't available by the time many sex crimes are reported.
10/ In short, the situation of an investigator one year after an alleged sex crime isn't *as* different as you'd think from an allegation made many, many years later—but *still within the statute of limitations*—except to the extent that people's *memories* may have deteriorated.
11/ Republicans would like you to think investigators are morons—all they can do is show up at someone's house and say, "Uh, did you do this?" and then add, "Are you sure?" when/if the person says no. That portrayal of police is *so* offensive to law enforcement. It's outrageous.
12/ In fact one of the first things an investigator would do is consider the credibility of all the parties and their accounts in a contextualized way that considers the allegation, the parties, their accounts, and a basic understanding of human nature that investigators develop.
13/ Let me give you a for-instance, based on my own training as a criminal investigator. Consider the following three categories of possibility in the Kavanaugh-Ford case, which taken together offer an important starting-point for any credible discussion of an investigation here:
14/
a) Ford made this up; Kavanaugh/Judge never did anything like this in their lives.
b) Ford may/may not have made this up, but Kavanaugh/Judge—who *did* do things like this—didn't do *this* thing.
c) Ford is telling the truth and Kavanaugh/Judge did this and things like this.
15/ In scenario a), Kavanaugh and Judge could readily speak to law enforcement and testify under oath because they never behaved in a way with women that could accrue criminal liability. They'd have no difficulty saying that this didn't happen and nothing like this ever happened.
16/ In scenario b), Kavanaugh/Judge wouldn't want to speak to law enforcement or testify because they did in fact do things they wouldn't want to talk about—and maybe did things they can't remember—and that would severely compromise their discussion with law enforcement/Congress.
17/ In scenario c), Kavanaugh/Judge did this—and remember doing it. They can only testify/speak to law enforcement by perjuring themselves, lying to law enforcement, or potentially committing other crimes like hindering prosecution, witness tampering, and obstruction of justice.
18/ Investigators would likely rule out a)—which I call "Well I never!" (an indignant/incredulous response from Kavanaugh/Judge)—because in that case both men would be racing to Congress/law enforcement to say that never in their lives did they come within miles of this behavior.
19/ But investigators would *also* rule out scenario a) because *every single piece of evidence they have available to them now* suggests that both Kavanaugh and Judge were blackout drunks who treated women as objects to be conquered and were quite smugly proud of such conquests.
20/ Moreover, they'd rule out scenario a) because the very fact that Judge and Kavanaugh were proudly blackout drunks in high school means that they *can't remember what they did or didn't do*. In short, they are "per se" less-credible witnesses for reasons of their own devising.
21/ So the problem facing Kavanaugh/Judge is i) they may not know what they did, and ii) they can't/won't discuss the things they do remember doing because nearly every one of them that investigators would ask about would *confirm* they were more likely to do something like this.
22/ So the starting position for a criminal investigator here would be (three items to follow):

(1) testimonial evidence is absolutely key;
(2) Kavanaugh and Judge were not *then* reliable percipient witnesses, even of their own conduct; and
(3) they either recall doing this...
23/ (3, cont.) ...or else they don't recall but *may* have done this, or else they *do* recall never having done this (i.e., they have some evidence to offer on that score), but they can't *say* they didn't do it because of what that questioning would reveal about other conduct.
24/ One thing is clear: given the known conduct of Kavanaugh and Judge *at that age* (which is *all that matters* in this case), their self-serving statements of innocence would be given very, very little weight—as would *ridiculous* evidence like Kavanaugh's "personal calendar."
25/ Other weak evidence (meaning, evidence that'd mean little to law enforcement) includes:

(a) lack of contemporaneous documentation of the party;
(b) what women thought/think of Kavanaugh at a different time in his life;
(c) the deteriorated memory of non-percipient witnesses.
26/ So for instance, law enforcement wouldn't necessarily take it as compelling evidence that someone who went to parties almost every weekend 35 years ago doesn't specifically remember *this* party *if* nothing significant happened *to* them—or *in their presence*—at this party.
27/ On the *other* hand, law enforcement *would* find it probative if there was evidence that Brett Kavanaugh perjured himself before Congress within the last two weeks, or used obviously stolen Congressional documents in the 2000s, as that'd shade their view of his truthfulness.
28/ And it *would* be probative if there were whispers of an incident happening between the students of Kavanaugh's and Ford's schools around the time Dr. Ford says this event happened—which is what Cristina Miranda says and did *not*, in fact, retract, contrary to media reports.
29/ And it would be considered *unbelievably* probative—instructive to law enforcement and possibly indicative of the suspect's guilt—if, as *did indeed happen*, Dr. Ford disclosed her allegation to *multiple parties law enforcement can speak to* well *before* 2018 or even 2016.
30/ I daresay—in a full investigation of this matter—that investigators would even talk to Mitch McConnell, who now says Kavanaugh is a slam drunk but who, prior to his nomination, warned Trump that he wasn't sure Kavanaugh could be confirmed. Investigators would want to ask why.
31/ FBI investigators would *also* want to know why Senator Grassley had a letter from 65 women attesting to Kavanaugh's good morals *ready at hand* the moment Dr. Ford's allegations surfaced. As with McConnell's bizarre reversal, they'd want to know what Grassley knew and when.
32/ And FBI investigators would *also* be very interested in Kavanaugh's unwillingness to talk (under oath) about his high school years in a question from Senator Kennedy (R-LA), *particularly* given that the question was about whether Kavanaugh was a troublemaker in high school.
MAJOR BREAKING NEWS/ Looks like my experience as a criminal investigator and criminal attorney was putting me on the right track, as news is breaking of a second sex-crime allegation against Kavanaugh—now from college—about indecent exposure (maybe worse). newyorker.com/news/news-desk…
33/ I'd been about to add—when I saw the New Yorker story—that investigators would also be incredibly keen to hear more information about Kavanaugh's refusal to answer questions about his high school/college conduct while working with Senate investigators. thehill.com/regulation/cou…
34/ One thing law enforcement would ignore completely is the empty GOP rhetoric—largely canards—about Kavanaugh. His life *hasn't* been exemplary, whether it's things I already mentioned or the news he discriminated against less attractive women in hiring. nbcnews.com/politics/supre…
35/ Moreover, law enforcement would interview at length every person (and we know their names) who Dr. Ford disclosed her allegations to *prior* to having an inkling Kavanaugh was a candidate for the Supreme Court. They would not, like the GOP, refuse to speak to these witnesses.
36/ And because FBI and state investigators know standards of proof inside and out, they'd know that while they're investigating under a "probable cause" standard (for arrest) and "beyond a reasonable doubt" (for conviction), the Senate's standard of proof is *lower* and must be.
37/ That's right, I'm stating that anyone in law enforcement would have a reasonable suspicion that Kavanaugh did this—which is enough to investigate—and perhaps probable cause for an arrest. Whether they'd have proof *beyond a reasonable doubt* is 100% *immaterial* to senators.
38/ If there's even "probable cause" to believe someone committed a sex crime—in the law, that'd be something like 20-25% likelihood of guilt—they don't end up on the Supreme Court. That's true whether or not there's "beyond a reasonable doubt" proof (something like 90% or more).
39/ In short, "law-and-order" Republicans aren't *just* insulting law enforcement the nation over by backing a president who savages the integrity of federal and state police whenever they displease him—they're *also* giving all America a *comical* view of how investigators work.
40/ If you're sitting at home thinking that in a normal time Trump would've listened to McConnell and not nominated Kavanaugh; that the GOP would've let there be an FBI probe here; and that Kavanaugh would then have withdrawn and rightly so—you're correct. America is adrift. /end
MAJOR BREAKING NEWS/ Michael Avenatti—who, whatever you think of him, *has* delivered the goods many times before—now says there's a third Kavanaugh accuser. This all explains why McConnell told Trump don't nominate this man and why the GOP is rushing now.
PS/ Deborah Ramirez's allegation is of a sexual assault by Kavanaugh; she has a corroborating witness; a new witness now says Mark Judge admitted to her having sex with a drunk woman; Judge's yearbook quote advocated violence against women. Cops would see *all* this as probative.
SOURCE/ This article has a lengthy discussion of the backroom campaign McConnell waged to *avoid* Kavanaugh. Note the repeated reference to a "paper trail," which the GOP will claim but I'm starting to doubt *solely* had to do with his judicial decisions. nytimes.com/2018/07/07/us/…
CORRECTION/ Tweet #30 should say "slam dunk," not "slam drunk," though I suspect the reason my subconscious typed the latter phrase is now, post-thread, pretty obvious to all of us.
PS2/ This thread continues at the link below with some *major* breaking news (far bigger and more disturbing, in fact, than even the already distressing breaking news I've previously live-tweeted as I've been completing this thread):
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