I'm about to start watching Brett Kavanaugh's Congressional testimony, and I'll say that—having watched Dr. Ford's testimony—I expect what I'm about to watch will be the most shameful and offensive few hours of television I've seen in the past few years. Hope he proves me wrong.
2/ Holy *crap* he's visibly angry. Didn't see such an obviously fake performance coming. But here it is, just seconds in.
3/ The anger is bullsh*t because there are *so many things* he could've done to help clear his name over the last two weeks. He did *literally none of them* and he *chose* not to. Most notably, he wouldn't ask for other witnesses to appear before Congress or an FBI investigation.
4/ He could have answered Senator Kennedy's questions many days ago about his past. He could've explained his yearbook comments. He could've publicly called for enough of a pause in his nomination for him to be able to clear his name. No—he wanted to "plow through" the process.
5/ I note that many of the "smears" he complained about in his statement (e.g. the Rhode Island allegation) were *leaked by Republican staffers* who were *working with Kavanaugh* in order to sully Dr. Ford's allegation—pretty crazy that he's blaming Democrats for all of that now.
6/ I rewatched Clarence Thomas's hearing recently—I think Kavanaugh did too. This level of defiance—and the means by which it is executed—resonates with what Thomas did.
He just pulled the "I have a friend who was assaulted" card—which is digging deep in the barrel very quickly.
He just pulled the "I have a friend who was assaulted" card—which is digging deep in the barrel very quickly.
7/ As I watch this, I remain open to the possibility that of the three people in that room in Maryland in 1982—Ford, Kavanaugh, and Judge—*only Ford* didn't black out afterward and forget that Kavanaugh and Judge had committed a sexual assault. But that wouldn't exculpate him.
8/ I do feel immediate empathy when I see a witness in a hearing cry. Sometimes the crying is sadness, sometimes pain, sometimes indignation, and sometimes it's instead (as I think it is with Kavanaugh) simply the fact that he's emotional because this is an emotional process.
9/ The number of Kavanaugh's statements that are *actually exculpatory* is far, *far* fewer than many think. Leland Kaiser just doesn't remember the party—because it was unremarkable *for her*—so *no*, she doesn't "refute" anything. Kavanaugh overstates *every* piece of evidence.
10/ His "calendars" aren't exculpatory evidence. Dr. Ford not recalling how she got to the party isn't exculpatory evidence. The location of the house isn't exculpatory evidence. Him not remembering the party isn't even exculpatory because *he was known to black out when drunk*.
11/ I agree wholeheartedly that it's tough to refute an allegation from 1982. But his own choices that year created a mountain of circumstantial evidence suggesting he could have and *would* have done this. Add to that an *incredibly* compelling account by Ford and no, no SCOTUS.
12/ Republicans want this to appear like a trial so that the standard of proof will be "beyond a reasonable doubt." But that's not the standard. The standard is probable cause—no one for whom there's probable cause of a sexual assault who won't acknowledge it should be on SCOTUS.
13/ Right now—I'm behind—he's telling his life story (circa '82). But I want to know how the life he's described leads to a) the yearbook entries he made, which describe a very different life, and b) a friendship with Mark Judge—whose life in 1982 was depraved by his own account.
14/ Investigators look at what people say when they don't know they're being judged. Kavanaugh's yearbook is inculpatory evidence that's powerful because he didn't know he'd be judged by it. His statements *today* are self-aggrandizing and made—naturally—with intense calculation.
15/ Kavanaugh's yearbook is *not* inculpatory because he admits drinking. It's inculpatory because of the binge drinking, extreme drinking, and the degrading references to women. There are also unexplained—believed offensive—phrases he now says were just intentional "absurdity."
16/ That said, I've no doubt that prep-school yearbook summaries are intentionally quite overheated. The problem is that there are *many other accounts* that confirm that Kavanaugh was accurately describing his social milieu—including how he saw women—in his high school yearbook.
17/ Republicans swayed by Kavanaugh's crying need to understand something: black men cry in court also. I've sat beside many as they did so. And when I looked around as a public defender for years and years I never saw a Republican pol give a sh*t about black male tears. *Ever*.
18/ Republicans must ask themselves, "Why do I find it compelling when *Brett Kavanaugh* cries, but I give *zero shits* for the billion tears of *all other criminal defendants and accused persons in U.S. history*?"
A lot of people need to challenge their own predilections today.
A lot of people need to challenge their own predilections today.
19/ As a longtime criminal justice professional I had to learn to *ignore tears*. Tears can be faked; can be undeserved; can lead you from truth—everyone in law enforcement or who's an officer of the court knows this. I ignore Kavanaugh's tears because it's the right thing to do.
20/ If you ignore Kavanaugh's tears; if you ignore the fact that—*like every accused person*—Kavanaugh *has* been good to people and done nice things and accomplished things; if you ignore his non-exculpatory "exculpatory" evidence; you're left with probable cause for an assault.
21/ I just want to hammer this home: America doesn't care about the tears of accused people; it never has; and if it starts doing so today—after billions and billions of tears have been shed by millions and millions of accused persons of all races and classes—it's pure politics.
22/ America's men *aren't* scared about allegations every day of their lives because they know *there will be investigations by law enforcement* if they're accused. It's *Republicans* who are creating an environment in which there's *no investigation* and it's "he said/she said."
23/ Kavanaugh is even trying to hide that he drank underage—by talking about what "seniors" were doing but not noting he wasn't a senior—and I'm telling you as a longtime defense attorney that that's a *bad sign*. Evasiveness on *minor* issues is a sign of defensiveness and fear.
24/ Kavanaugh's testimony about his drinking habits and the effects of his drinking is not just *uncorroborated* testimony but *contradicted* by a *number* of witnesses, including *multiple* friends (*friends*) of Brett Kavanaugh.
25/ I've never—in my life—seen a defendant or accused person introduce *his own calendars* as exculpatory evidence *unless* they were seized from him at a time he didn't know he was in trouble. That we're discussing his personal calendars under *these* circumstances is a *farce*.
26/ What's frustrating to me is that those who haven't watched or participated in many—or any—criminal trials will be swayed by Kavanaugh's *performance* (tears, indignation, and so on) and not realize that the *facts* here are incredibly light on *any* exculpation. *Incredibly*.
27/ I'll tell you something else about guilty defendants: they *refuse to answer questions as they're asked*. Kavanaugh is evading questions to play for time and won't give direct questions to *very* simple questions—I think law enforcement officers will agree with my assessment.
28/ OK, I'm on Leahy's questioning—this is officially a shitshow. Ask any cop you know off the record if they respect a defendant or accused person who answers questions under oath in this way and they'll say, "*That* sort of asshole is the one you *know* is guilty." I'm serious.
29/ What Republicans are no doubt interpreting as righteous indignation would be considered disrespect for the court/Congress were the *exact same conduct* exhibited by a nonwhite defendant facing *identical* charges. We have 2 justice systems and it's so humiliating for America.
30/ Realize that Attorney Mitchell is a PROSECUTOR—in her mind (I *promise* you) the idea of asking an ACCUSED PERSON to exculpate themselves using *their own calendar* is not just preposterous, but *offensive*. But she is pretending otherwise, today, for rank political purposes.
31/ Mitchell just *misstated* Ramirez's and Swetnick's allegations to make them sound preposterous—and she did so deliberately. That makes me *really* angry, because a *sex crimes prosecutor* would *only* do that for political purposes. It's pretty sick that that just happened.
32/ U.S. Senator Lindsay Graham (R-SC) just said to a man credibly accused of sexual assault, "You've got nothing to apologize for."
On national television.
This a low moment in American history.
On national television.
This a low moment in American history.
33/ (I say "just said" because I'm behind everyone else! I'm trying to catch up.)
34/ I'll say it simply: black people in America accused of crimes don't get the leeway Kavanaugh is getting in yelling at questioners, talking over them, asking them questions, belittling them. Guess what black defendants or accused persons who act like that do: they go to jail.
35/ It must have taken Kavanaugh all of five minutes to come up with the ridiculous exculpatory explanations for the obvious drinking and misogyny-themed references from his high school yearbook. Five minutes tops.
36/ Really want to turn off this livestream as Cornyn speaks. The man is such a monster on criminal justice issues—he cares so little about defendants' constitutional rights—that Zeus should strike him with a million lightning bolts for pretending to care about false accusations.
37/ Yep—Cornyn, a former judge, whose CJS policies have destroyed thousands of lives, is now pretending he doesn't know what the word "corroboration" means in sex crimes. The man is, as I said, basically a monster.
38/ Fortunately, Cornyn's also stupid—and I say that advisedly. He is dim. The claim that this is akin to a criminal trial is preposterous. The standard for getting on the Supreme Court is *not* that your sex-crime accuser couldn't prove her allegations beyond a reasonable doubt.
39/ The Democrats' arguments are so *obviously* correct—like saying the FBI can ask *follow-up questions* of Mark Judge, whereas Mark Judge issuing a statement to Congress allows for no follow-up. I hate that we have to pretend the GOP has any argument any attorney would respect.
40/ I'm going to close down the live-tweet here—unless something major happens post-Klobuchar—as this is *so embarrassing* to watch for anyone who's ever defended people in court. Republicans mock the FBI, rule of law, proper witness decorum, CJS, legitimate investigation... /end
PS/ My last point here wasn't meant to suggest that the hearing isn't hard to watch for nearly *everyone*. But Kavanaugh is getting treated *so* differently—to his *benefit*—as compared to the hundreds of men I've known who went to jail that I feel physically nauseous. I'm sorry.
PS2/ Remember that Kavanaugh—under oath—isn't allowed to lie *once* or fib "a bit." And no one of good faith could hear his testimony and not see *several* points where almost any listener would conclude he was lying. That *destroys* a witness's credibility—you can't lie "a bit."
PS3/ So when attorneys watch and analyze this testimony and seem to "nitpick" Kavanaugh, that's because he *doesn't get to lie even once* without his entire testimony being largely discredited—and I'm sorry, but that's just the way questioning in a court or court-like setting is.
PS4/ So—that said—the yearbook stuff *is* incredibly damaging *not* because it proves a crime but because it proves that he just lied repeatedly under oath. And *that* discredits him as compared to Dr. Ford's incredibly compelling testimony—which didn't evince any untruthfulness.
PS5/ So, for instance (but the yearbook issue is much, much bigger than this, with many *more* instances of Kavanaugh testimony that most people wouldn't credit):
NOTE/ I shouldn't have called Cornyn a "monster"—I really try to avoid that sort of dehumanizing. I was angry for reasons that have to do with things I saw as a public defender. In a way that's hard to explain, this sort of legal farce is triggering for me. Still, it's no excuse.
NOTE2/ Journalists can't fall prey to Kavanaugh's "evidence drift"—the slow, gradual mischaracterization of inculpatory or neutral evidence that suggests a person is guilty or for some other reason systematically evasive. "Four witnesses" did *not* say the event "never happened."
NOTE3/ Here's what actually happened (contra Kavanaugh's claim):
(1) A "codefendant" professed his innocence, then refused to testify.
(2) Two non-bystanders to whom nothing happened said they couldn't remember the party.
(3) The "defendant"—Kavanaugh—gave a self-serving denial.
(1) A "codefendant" professed his innocence, then refused to testify.
(2) Two non-bystanders to whom nothing happened said they couldn't remember the party.
(3) The "defendant"—Kavanaugh—gave a self-serving denial.
NOTE4/ So "all four witnesses say it didn't happen"—a line Kavanaugh repeated *multiple* times—is a *lie*, and a knowing one. If the Senators had more time each (which they should have had), they would have been able to call him on it. Instead, we get Grassley yelling repeatedly.
NOTE5/ As far as I can tell, the 3 people who spoke the *longest* today are:
1. Kavanaugh
2. Mitchell
3. Grassley
And the two people able to (allowed to) cut off other people—Kavanaugh and Grassley—did so repeatedly.
Notice that Ford's name isn't here. What does that tell you.
1. Kavanaugh
2. Mitchell
3. Grassley
And the two people able to (allowed to) cut off other people—Kavanaugh and Grassley—did so repeatedly.
Notice that Ford's name isn't here. What does that tell you.
