Dems are looking into filing charges against Kavanaugh

[BigmanPigman]

in Maryland since there is no statute of limitations there. Howard Fineman just said this on Hardball.

[dalton99a]

1. Awesome.

[Ohiogal]

2. Good!

[ProudLib72]

3. With Ford's lawyer? With her consent?

I didn't watch Hardball.

[Sherman A1]

4. That's good news, but wouldn't

his accuser have to file the complaint? I'm a little short on information on the process.

[BigmanPigman]

8. I have no other info. That's why I posted it to see if I was hearing things.

Chris Matthews gives his guests two seconds to "tell me something I don't know" at the end of each show and that's when Fineman said it. I wish he had brought it up earlier and they could have discussed more details but then Chris would've interrupted him 5,000 times and we wouldn't get that much info anyway.

[ancianita]

37. Rachel reports that the police dept announced that the accuser would have to file the complaint.

[BigmanPigman]

39. I caught that too.

I am glad someone else mentioned this besides the last 7 seconds of Hardball.

[saidsimplesimon]

5. Fineman had a dream?

Who knew?

[onenote]

6. I'll believe when it happens

Which I bet it won’t.

[Deb]

7. Assault or perjury?

This is excellent news if true.

[Solomon]

47. Kidnapping. It's a felony.

[FBaggins]

9. Link?

What standing would "Dems" have to "file charges"???

And there most certainly is a statute of limitations in Maryland. The only thing that lacks one would be felony assault or similar... and (despite the fantastic imaginations of a couple creative attorneys), what has been alleged is not felony sexual assault.

Don't get me wrong. It's more than bad enough (assuming he's guilty) to keep him off of the Supreme Court (particularly since he denied it outright and thus would have clearly lied)... but it wasn't felony sexual assault.

[BigmanPigman]

11. I don't have more info.

I was hoping someone on DU would know more. Fineman was given 7 seconds to tell Chris Matthews "something he doesn't know" before the show ended. It was the first I heard of it all day.

[FBaggins]

14. The WaPost checked with a sex-crimes-specializing attorney in MD recently

COULD KAVANAUGH FACE STATE CHARGES?

The allegations Ford detailed to The Washington Post appear to be misdemeanors that would be beyond the statute of limitations under Maryland law, said Randolph Rice, a Baltimore-based attorney who specializes in sex crimes.

The allegations could be interpreted as second-degree assault and a fourth-degree sex offense, Rice said. But both charges are misdemeanors and would be far beyond the statute of limitations, which is typically one or three years, depending on the offense.


https://www.washingtonpost.com/politics/courts_law/can-allegation-against-kavanaugh-lead-to-criminal-charges/2018/09/18/1b5298ea-bb73-11e8-adb8-01125416c102_story.html?utm_term=.264554034f8f

[uponit7771]

25. Thx for this, could an investigation be open? Sounds like that's all they're asking for. Regards

[Jarqui]

29. I'm not sure if he could face state charges or not. Some feel he could or

some sort of investigation:

MARYLAND PROSECUTOR ON KAVANAUGH ALLEGATIONS: “WHEN THERE’S SOMETHING THE POLICE HAVE BROUGHT TO US, WE’LL ADDRESS IT”
https://theintercept.com/2018/09/19/brett-kavanaugh-maryland-prosecutor-well-address-it/

Brett Kavanaugh Could Still Face Charges For Attempted Rape In Maryland
https://hillreporter.com/brett-kavanaugh-could-still-face-charges-for-attempted-rape-in-maryland-7580

If the Allegations Are True, Could Brett Kavanaugh Face Criminal Charges? Maybe.
https://lawandcrime.com/high-profile/if-the-allegations-are-true-could-brett-kavanaugh-face-criminal-charges-maybe/

What Would a Serious Investigation of Brett Kavanaugh Look Like?
https://www.newyorker.com/news/our-columnists/what-would-a-serious-investigation-of-brett-kavanaugh-look-like

[spooky3]

32. The Post published another piece earlier that argued just the opposite.

The author was a former deputy attorney general for the state of MD. I posted the link in two places here at DU. I suggest you and anyone else who hasn’t read it do so.

[FBaggins]

46. I've read it.

I'd be happy to comment on-thread if you point me to it... but to simplify my reaction, he's wrong.

Before we run into the appeal to authority fallacy, what people need to understand is that even in 9-0 supreme court cases, there's a top attorney on the other side making her best argument, and to a layman, they're going to sound plausible. But that doesn't mean that the argument was correct.

For instance. In that piece, the former dept AG claims that just moving Ford into the bedroom by force means that he could be charged with kidnapping. That's simply false. I've read the ruling that he's referring to and it actually says exactly the opposite. You can't tack a kidnapping charge onto sexual assault if the only restraining force applied was that which was part of the sexual assault. She doesn't allege that.

[spooky3]

49. Are you an attorney? A prosecutor?

[FBaggins]

56. Didn't I warn you about that fallacy?

I'm neither (though I have more than a couple law courses under my belt)... but I'm pretty experienced at analyzing appellate court rulings for appeal and helping people craft arguments on either side.

The case that he's referring to (Burton v. State - which wasn't in MD, which already makes it a stretch), did allow a kidnapping charge to stick in addition to two counts of rape, but not because moving the victim to another room qualified as kidnapping (that was merely one of three requirements that all had to be met). The decision turned on the amount of restraint involved and that it was "much more" than what was required for the two rapes.

The relevant text that is being ignored in his analysis is (emphasis mine):

It should be noted, however, that a person is not guilty of kidnapping under subsection (4) every time he commits the crime of rape or assault. Both of those crimes inevitably involve some restraint of the person but much more is required here before the additional and aggravated offense of kidnapping is committed. The State must prove that the restraint interfered substantially with the victim's liberty. Such a requirement means that there must be more interference than is ordinarily incident to the underlying offense.

In the Delaware case, they ruled that there was much more force/restraint applied than what was incidental to the rape... because the assailant kept her for half an hour and dragged her back and forth between three rooms/hallways


The key differentiator when trying to tack on additional charges is generally whether the additional crime has some necessary component that the underlying crime does not already satisfy. Holding his hand over her mouth in a way that could suffocate her could easily qualify as simple assault (apart form sexual assault) if the court/jury believes that it's distinct enough from the sexual assault (my guess would be it would turn on whether he's covering her nose as well because the sexual assailant has to keep her from shouting, but not from breathing).

[spooky3]

58. I am not persuaded by legal opinions issued by non-experts,

Particularly not when they contradict those of experts. And I am a professor at an “elite” university, so appreciate your “warnings”, but they are unnecessary.

[FBaggins]

62. You're a professor of law?

Did you miss that my first reference was a MD attorney that reportedly specializes in sex crimes? A deputy AG wouldn't necessarily trump that if we're playing the "my dad can beat up your dad" game.

legal opinions issued by non-experts

Note that I didn't give you my legal opinion there (except in the covered nose speculation which now think was wrong because MD does include suffocation in their statute)... I cited a state supreme court. Again... a couple rungs up on the credibility ladder from a deputy AG (particularly when he was citing that ruling in his claim).

This is why appeal to authority is fallacious. There are qualified people stating opinions on both sides. The difference is that I said why the opinion was incorrect (and backed it up from the very case he was referring to). I didn't say "because he said so"

[SomethingNew]

83. I am an attorney.

While I'm no expert in the exact law in question here, the statement at the end of the post you're replying to is an accurate statement of the common law crime of kidnapping (and is at least the majority position in state law). Fir example, if I grab someone off the street and pull them into an alley to take their wallet, I've committed robbery but not kidnapping, even though I restrained and moved the person.

[Solomon]

51. You're wrong. Distance doesn't matter in a kidnapping charge. So drop the sexual assault charge

and charge him with kidnapping instead. You act like a person can't be charged with rape and kidnapping. That's absurd.

[FBaggins]

57. See my 56.

Last edited Thu Sep 20, 2018, 11:34 PM - Edit history (1)

I'm not arguing that distance matters in the referenced case (though in MD I have yet to see that and the model penal code (§ 212.1) does require a "substantial distance)

[spooky3]

52. Here is another thread started by a DUer attorney:

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=11159335

Notice a link in the replies to a Laurence Tribe tweet also arguing against your position. And, the author of the WaPo piece I mentioned earlier is a Harvard Law School grad and was Editor of the Harvard Law Review when there:

https://www.baltimoremagazine.com/2018/5/23/siblings-krishanti-and-thiru-vignarajah-discuss-running-for-office-side-by-side

I would not be so quick to dismiss what he has to say and would not speculate that he is unfamiliar with the cases relevant to his argument. But I am not an attorney.

[ancianita]

38. They don't have standing. Only the accuser may file charges, according to Rachel.

There's also no statute of limitations on this felony in the state of Maryland.

[FBaggins]

42. I have yet to see a plausible theory for a felony charge

Let alone one that could be proven beyond a reasonable doubt

[OliverQ]

60. Attempted rape is a felony charge.

[FBaggins]

63. Of course

But all she has alleged was that he had groped her outside of her clothing and tried unsuccessfully to remove it. But her (or our) belief that if he hadn't been stopped he would have raped her isn't enough to call it attempted rape. Fortunately for her (and unfortunately for that charge), the event ended prior to that point.

If he had pulled out a condom... or said something that made clear he was going to rape her... we could plausibly argue attempted rape (though I can't see how it would be proven at this point)


(obviously... forgive me on the "all". What he did was well beyond some tiny offensive behavior. It just isn't a felony)

[JonLP24]

71. They kidnapped her and moved her against her will

That's false imprisonment.

[FBaggins]

76. Can you cite some precedent for that?

Obviously the allegations add up to sexual assault. In order for it to also be some other crime, there have to be elements of that crime that are not incidental to the assault.

And, of course, “false imprisonment” in Maryland it’s not a felony. In fact, I think it’s just a finable offense.

[samnsara]

78. yes i thought that was essentially kidnapping as well as restraining her...

[elleng]

10. Which Dems?

[empedocles]

12. A timely filing by 4p Friday would be nice.

And have some more likely impact no matter what.

[john657]

13. The Dems can't file charges,

it has to be Dr. Ford, who is the alleged victim.

[john657]

17. I hope you've got your fire retardant suit on.

[MichMary]

24. What would a prosecution be based on?

This will be enough to keep him from the SC, but in order to prosecute, you need some proof. If there is any, I would really like to hear it.

[spooky3]

33. I suggest that you look for CTYankee's post on

What a prosecutor told her are the facts that point to Dr. Ford’s credibility and corroboration.

[LanternWaste]

73. The pretense of oppression is fun.

it certainly allows us the opportunity we're more important than we may be.

[john657]

80. Wow, that is so deep. N/T

[Tarc]

20. Why are you here?

[uponit7771]

22. They're asking for an investigation and not a prosecution correct? Thx in advance

[MichMary]

26. The OP said

"filing charges." Much different than an investigation.

[john657]

27. Correct.

But MichMary is 100% in the post, it's going to be very difficult to prove, beyond a reasonable doubt, that this did happen.

It has been, after all, 36 years since the alleged crime happened.

[uponit7771]

31. I'm thinking they're asking for an investigation minimum, I would like one too if the SC Nomin

... nominee lies to police or is proven to have lied during the congressional testimony about this I would like to know.

I think there's more benefit than just a prosecution

[john657]

35. We are in agreement. N/T

[Lee-Lee]

70. Even an investigation is far fetched with what we have now

All law enforcement agencies have limited assets.

They have to prioritize effort, resources and manpower in cases that are actionable and stand a chance of going somewhere.

This case simply isn’t there.

She can’t say when or where it happened or even say how she got there or how she got home. She can’t name any witnesses that support her claims.

The only people she has named all deny it.

After 35 years and not knowing exactly where or when it’s almost impossible to go out and find witnesses as part of an investigation. Both because time has passed and because you don’t know specifics. If this was 3 weeks ago you could pin down where and ask neighbors if the suspects cars were there, review surveillance video that catches the streets leading there, find people who were there, etc. After 35 years you can’t and if all you can ask is “hey over this 3-4 month period 35 years ago did you go to parties” it’s just too broad. And people’s memories are too faded.

On top of that her own testimony places the key elements of the crime behind closed doors. That means that the key elements of the crime can’t have any witnesses other than Judge, who already has denied it. If you can’t prove those hapoened beyond a reasonable doubt then you have nothing.

So looking at it as someone who has investigated things like this- it’s sinoly not a case you can push others aside to focus on. You take a statement, interview the accused, and unless something comes up in that file it away as unable to substantiate. Then go back to working on the cases that you stand a chance of actually being able to be productive on.

That’s just reality.

[uponit7771]

81. Hmmmm, Still worth it for FBI to interview KNaw ... something comes up later which proves

... he lied he goes to jail.

At minimum an interview investigation should be done and witness's interviewed

[Lee-Lee]

82. That's about all anyone can realistically expect to happen

And honestly the FBI wouldn’t interview him as part of the background check process. They would only interview her and people she gives who may have knowledge.

Rarely does the subject of a background investigation get interviewed directly on specific subject unless they have found something substantiated enough that it’s disqualifying and they need him/her to try and clear it up.

[ancianita]

40. Probably true. Evidence and witnesses have to exist. She did pass a polygraph, if that counts.

[john657]

43. Polygraphs are not reliable,

that's why most states don't allow them to be used as evidence in a criminal proceeding.

[ancianita]

44. All these states do, but Maryland isn't among them.

Alabama, Arizona, Arkansas, California, Delaware, Georgia, Idaho, Indiana, Iowa, Kansas, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Utah, Washington, Wyoming.

In California, Arizona, Nevada, Georgia, and Florida, they can be used but both parties must agree.

[john657]

48. Correct.

My state is in there also, Wyoming.

I'm opposed to poly's being used in a criminal case, they're just too unreliable and suggestive.

My younger brother is an undersheriff and he's been to the FBI's course on polygraphs and he says that if someone believes something, whether true on false, they can pass a poly.

[Lee-Lee]

68. Even in states that allow an polygraph you can't bring your own results

You have to use the one provided by the agency investigating s

Bringing your own is considered worthless because you can take and retake them and often get results, so when someone walks in having results in hand you don’t know if it was the first try or 21st tryZ

It’s also worthless to bring your own because when you take an “on the record” one it’s there for all to see regardless or results. But if you take them on your own and fail you can just never say you took it, meaning you only produce the result if it’s favorable to you.

Her polygraph is good for swaying the public opinion, but worthless as for as criminal charges or even civil court go.

[ffr]

16. Turning up the heat. So proud to be a democrat!

[ecstatic]

18. Awesome. Will he have to take a mugshot? nt

[mountain grammy]

19. Don't know how but don't care..

Happy it’s being discussed

[BigmanPigman]

21. Rachel Maddow just said that it can be done even if he is confirmed.

She said that there is no statute of limitations in that state and charges can be filed...even if he is seated on the SCOTUS!

[mountain grammy]

23. That'll fine with me. Just do it.

[Duppers]

28. GOOD!

With his history, he deserves it:

https://heavy.com/news/2018/07/brett-kavanaugh-vince-foster-vincent-death/

[underthematrix]

30. Yes. She said the victim can do it. Not the Democrats.

[ancianita]

45. It won't hold up. From all accounts so far, there's insufficient evidence.

[underthematrix]

54. Well that didn't stop the trial and conviction of Bill Cosby

And don't know that there's insufficient evidence.

[FBaggins]

64. Didn't it?

Most of the claims against him never made it to court because they occurred too long ago. Yes, that was mostly a statute of limitations problem... but part of the reason there is a statute of limitations is because evidence is harder to come by the more time passes.

I confess that I didn't follow the Cosby case (I enjoyed that show and his earlier work)... but I think that his primary conviction was because of the unsealing of evidence from a civil trial that ended with a settlement, where he admitted under oath that he purchased Quaaludes it was in order to use them on women that he wanted to have sex with. That's pretty damning evidence. I think I saw one juror say that the five women who testified didn't even need to be there because that was enough.

[spooky3]

55. Not true. There are multiple posts on DU, with links,

To sources saying they disagree. That is not “by all accounts.”

And what did some people say about the very old pedophilia cases involving priests? And what happened to those cases?

[ancianita]

59. Fair points.A filed complaint needs to be made, though;a police investigation is not the final word.

[spooky3]

61. I definitely agree that an investigation should occur. I

Hope that she will request a local police investigation is the FBI is not told to conduct one. Maybe even if it is.

[ellie]

34. YESSSSSS!

I love the fighting Dems!

[bucolic_frolic]

36. Republicans won't know what hit them

[uponit7771]

41. At this point I'm pissed enough to want them to seat that bastard and he gets indicted later for

... attempted rape and assault or whatever.

I'm sick of taking a gun to a tank fight

[bucolic_frolic]

65. It might be the most sure-fire way

If they reject him now, or before the elections, they run the risk of McConnell ramming a nominee through in December. Or Trump using a recess appointment. Whereas this one has known major-league baggage, with unpopularity to boot for November.

[lancelyons]

50. I think Dr Ford has to press charges

The dems won't and can't. I may be wrong on this but that's how I understand it.

[former9thward]

53. Democrats (or Republicans) can't file charges.

I wish people knew how the legal system works.

[Lee-Lee]

66. Lets all get into the real world people

Last edited Fri Sep 21, 2018, 07:52 AM - Edit history (3)

I was a deputy for 10+ years. For about half that I worked exclusively on the domestic violence task force.

I worked a lot of cases with similar circumstances of this.

There is not a responsible cop or prosecutor anywhere who is going to file charges in this case given what we know now. Not gonna happen. It’s fantasy.

It makes for good reading to draw you into websites. It makes for fun theory. It isn’t going to happen.

You have an alleged victim who cannot say when the assault happened, where it hapoened, how she got to the location, how she got home and cannot name who took her there, who took her home or anyone else who was there who can back her story up.

You can’t arrest someone based on that. You can’t charge someone based on that.

That doesn’t mean she ain’t a credible victim or witness. It doesn’t mean it didn’t happen. It does mean that in our legal system you need much more than what has been provided to actually charge a person with a crime. And it does mean that on the witness stand the prosecution would have a very hard time making her testimony seem totally credible. While it’s true sexual assault victims often have memory issues that leave some parts vividly clear, it is equally true that when your a 15 year old out drinking and don’t even remember how you got home it can be the alcohol also. And nobody can prove what is the reason, placing doubt into her testimony on the stand. And her testimony is the only evidence. Doubt there= no case. All yeh defense has to do is plant doubt. The prosecution has to prove beyond any reasonable doubt. 35 year old memories from a person who was 15 and drinking and can’t remember most of the evening are not enough.

And at more than 35 years later getting the evidence you you need to reach the burden of proof needed to actually charge a person is virtually impossible. Her own account puts the most important details behind a closed and locked door- so that eliminates any witnesses to the key elements making it only her world against his where she already admits faulty memory surrounding the incident. Since she can’t say where or when the party was going to search for witnesses that put them both at the right party is impossible. And after 35 years memories cloud and fade. Lots of cases are out together by small details from witnesses you don’t expect, like a neighbor who saw the cars of the attackers there on the right place and time at the party- but after 35 years you don’t have them especially since you don’t even know a time and place to ask about.

It’s nice fantasy to dream of him being charged. It isn’t going to happen.

And let’s be real here- we should all be glad we don’t live in a world where a person can be arrested and drug into court based on such a weak case. Imagine if you had an old employer that suddenly said “That person stole $5000 from me when they worked here. I don’t remember the exact date or have any record but I’m sure they did it” and had you arrested based just on that. We don’t live in that world, for good reason.

An no, no law enforcement agency is going to go all out like an episode of SVU and pour resources into trying to track all this down after 35 years starting with such flimsy testimony to start. Maryland has thousands of untested rape kits and there are even more unsolved rapes and murder cases not as old as this with much stronger evidence behind them. Diverting limited resources from newer and or more prosecutable cases to this one isn’t going to happen- and shouldn’t in an agency that puts the priority on law enforcement for the pursuit of justice and not one that is influenced to change priorities based on political concerns.

[onenote]

67. +1

[john657]

69. K&R

[DeminPennswoods]

72. People are arrested and convicted on flimsy evidence

for sure.

This is an old case, but the only public evidence is the letter Dr Ford wrote. We don't know all of what she recalls, only what she's stated in it and what she told the Washington Post. I wouldn't necessarily assume that's all she recalls.

She has named two other attendees, neither of whom want anything to do with testifying under oath and both of whom claim they don't know nor can add anything to the case. Another HA alum has said she recalls hearing second hand about the party. There are other people who could be interviewed. I don't know if Dr Ford's parents are still living, but if so, they are a starting point. There is at least one classmate who has known Ford for 40 years and spoken publically about her. She knows the other teenagers in their circle of friends. Would this be a hard case? Probably. An impossible one? Doubtful.

[JonLP24]

74. Yes

We don't know all of what she recalls

That part is key I can't believe all the arrogant certainty. A lot of police departments have a terrible track record investigating rape so Im not impressed with the idea of a responsible cop. NOPD, BPD, Sheriff's Joe department underinvestigated rape and sexual assault.

Plus if a mayor get's his lawn furniture stolen they will send out forensics so the idea that police aren't under political pressure is ridiculous.

[DeminPennswoods]

75. Norfolk 4, originally 7

I believe Frontline did a documentary on this case awhile back. It was shocking that men who were not even in the area and several unknown even to each other were arrested and charged with murder and 4 were convicted. The 4 were eventually freed but only after having to take Alford Pleas and agree to register as sex offenders for the rest of their lives for a crime none committed.

[samnsara]

77. i heard this just as i drifted off to sleep.. made me smile!