Lawyer calls out Rachel Mitchell over 'misleading' Kavanaugh memo

A lawyer trained by Rachel Mitchell says her memo to Republican Senators stating she would not bring criminal charges against Brett Kavanaugh is "disingenuous at best."

Matthew Long was mentored by Mitchell and says the memo is 'inconsistent' with what she taught

Rachel Mitchell was hired by Republicans on the Senate judiciary committee to question Brett Kavanaugh and Christine Blasey Ford on their behalf. (Win McNamee/Getty Images)

Read Story Transcript

Rachel Mitchell is an Arizona prosecutor who has tried many sex crimes cases — and she says she would not bring criminal charges against Brett Kavanaugh.

The U.S. Supreme Court nominee is not on trial. But he did appear before the Senate judiciary committee last Thursday, along with Christine Blasey Ford — the woman who accuses him of sexually assaulting her in high school. Mitchell is the lawyer the Senate Republicans hired to question them both.

Following the session, Mitchell wrote a memo to those Republicans stating that no reasonable prosecutor would take the case to court. 

She did not respond to As It Happens' request for comment.

Matthew Long, an attorney who was trained by Mitchell, told told As It Happens host Carol Off he finds Mitchell's memo misleading.

Here is part of their conversation.

What did you first think when [Mitchell] was chosen by the Republicans on the Senate judiciary committee to be their interviewer?

I was very much at peace with the selection because of my associations with Ms. Mitchell, having known her to be someone who cares very much about balancing victim rights and the rights of the accused.

Mitchell prior to Blasey Ford's testimony before the committee. (Saul Loeb-Pool/Getty Images)

What did you make then of this memo?

That it was offered from a prosecution standpoint and from a sex crimes expert standpoint —​ both of those are particularly concerning.

Given the format, there's no way that any prosecutor, including Ms. Mitchell, would make the assessments and judgments that she did in that memo with the limited information that she was given and that we were given up to that hearing and in that hearing.

Instead, a prosecutor, and including Ms. Mitchell, would certainly have demanded additional investigation. 

I find the memo disingenuous at best and misleading at worst — because it doesn't reflect the realities of what happens in prosecution offices every day. 

Long says with the limited information given at the hearing, Mitchell's memo was wrong to make claims about Ford's credibility. (Win McNamee/Getty Images)

But she's very definitive, isn't she? She writes in this memo, she said, "a 'he said, she said' case is incredibly difficult to prove but this case is even weaker than that." And she says that Dr. Ford identified other witnesses to the event and those witnesses either refuted her allegations or failed to corroborate them. She said there was not enough evidence to satisfy the preponderance of the evidence standard. That's pretty strong, definitive language, isn't it?

It's strong and definitive language. It's absolutely also misleading.

It's misleading because the only witness statements that she is referring to are in these written statements. Not as it relates to an interview, or any type of follow-up to these witnesses where their memories can be verified, or whether or not the way in which they answer questions can be evaluated.

Ms. Mitchell knows that this type of a statement, a written statement, would never be considered as evidence in her office or anywhere else. If that came in, she would have demanded that those people be interviewed before she put any weight into those statements. 

In her memo, she is going against what she knows to be true.

Kavanaugh speaks at his Senate nomination hearing. (Michael Reynolds-Pool/Getty Images)

These are the things that she taught you in how to proceed with these cases. Perhaps the most controversial part is that she questions Christine Blasey Ford's memory of the timing of the event — the dates of what happened and when it happened. This is what she points to as being evidence that Blasey Ford is not a credible witness. How does that fit with what Ms. Mitchell taught you about how to question and examine memory of victims?

It's directly inconsistent to how I was trained.

That, perhaps, was the most misleading part of the memoranda, because currently in the Maricopa County Attorney's Office, where Rachel Mitchell supervises, they have many, many, many cases where they have a charging document, their indictment, has an expanded time frame, an expanded date of multiple years that highlight a specific instance of assault.

Because they know — we know, experts know — that the ability to pinpoint a date in time is very, very difficult, if not impossible, as a result of memory. That's why the law does not require date as an element of offence. 

Ford shakes hands with Mitchell as she finishes testifying before the Senate judiciary committee. (Andrew Harnik/AFP/Getty Images)

What consequences are there from this memo and this performance on her career?

I can only speak to the calls and emails that I've gotten from prosecutors in this state and throughout the country, including those that were trained by Ms. Mitchell and hold her in high regard, who are very concerned with the damage that she has done to prosecution offices as far as calling into question their objectivity.

As well as the damage that she has done to victims, who will feel that prosecution offices, some of the last places that they feel they can go, will also not believe them, but instead rely on an unrealistic standard, a false standard, for what they think a victim ought to look like.

I'm the rare person that has to be right about this because I represent both victims and those who were accused. 

Both of them deserve a real voice, and neither of them have got one in this proceeding. 

Written by Kate Swoger and John McGill. Produced by Kate Swoger. Q&A has been edited for length and clarity. 


To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.