This article was prepared by the distinguished retired jurist, John H. Wilson
It is a basic rule of American jurisprudence, laid out in the 6th Amendment to the US Constitution; “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Further, under the Fifth Amendment, “No person shall…be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.”
Yet, if you read the list of demands made by the attorney for Professor Ford, you would think she had never heard of the Constitutional protections afforded the accused: “Only members of the committee — no lawyers — can question her; Kavanaugh cannot be in the room at the time; and Kavanaugh should be questioned first, before he has the opportunity to hear Ford’s testimony.”
While I acknowledge that a hearing before the Senate Judiciary Committee is not a criminal trial, the accusation made by Professor Ford against Judge Kavanaugh is clearly criminal in nature. She asserts that sometime early in the 1980s, while both she and the Judge were high school students, Brett Kavanaugh allegedly sexually assaulted her. Specifically, she alleges that the Judge, while a teenager, “pinned her to a bed… groped her, and tried to take her clothes off, placing his hand over her mouth when she attempted to scream.”
In Maryland, the state where this assault is alleged to have taken place, Sexual Offense in the Third Degree under 3-307 of the Criminal Code is punishable by not more than 10 years in jail, and would require the offender to register as a sexual offender (if tried and convicted as an adult). Sexual Offense in the Third Degree is the applicable offense, since it requires an offender to have “engaged in sexual contact (intentionally touching the victim’s or defendant’s genital, anal or other private parts for sexual gratification…)in any of the following situations: The victim is mentally or physically incapacitated (drunk or unconscious for example)…”
Rape would require that the parties “engaged in sexual intercourse.” The allegations here do not provide sufficient evidence of either the sexual act occurring, or of an Attempted Rape, since there is no evidence that the accused did anything more than “grope” and try to remove the clothes of the accuser.
Maryland’s Criminal Code may not bar a prosecution from 35 years ago, since there is no statute of limitations for felony sexual assault. However, the practicality of prosecuting a case where the victim cannot tell you when and where the crime occurred, and without any physical evidence, is daunting at best.
Moreover, it is more viagra from usa difficult to retain information when you are depressed.”? Hypothyroidism – The inadequate functioning of the veno-occlusive mechanism. If the ad is not given for a particular online directory are flooded by futile newsletters from the cialis generic pills networking group. Mertz sums up his feelings: “It is not unusual to be enjoying dinner out and notice couples or groups levitra no prescription with a cool, bluish glow on their faces. Make viagra sale buy your sex adventurous an exciting: Not having enough excitement during the time of sex can also result in men suffering from the condition, since the body needs to be kept in good shape in order for all the parts to function properly. It should be noted that the Judge was a juvenile at the time the offense is alleged to have occurred. More likely than not, the Maryland juvenile code would be applied to such an offense, however, for the sake of convenience, I have reviewed the adult criminal code.
It should also be noted that the calls for a federal investigation of these allegations have been properly rejected by the FBI, since there is no allegation that any federal crime has occurred. But given that a felony prosecution under Maryland law is not time barred under Maryland’s criminal statute of limitations, it would be proper to afford the accused the same rights as any other person accused of a crime.
In a criminal trial, the accuser always testifies first. This is done mostly because the state has the burden of proving the charges against the accused, but also to satisfy the “confrontation clause” of the 6th Amendment – the accused has the right to confront the witnesses brought against him or her. Further, under the 5th Amendment, Judge Kavanaugh has the right to remain silent – he has no obligation to answer these charges whatsoever. Obviously, for the Judge to fail to address these charges at the Senate Judiciary Committee would be political death to his nomination, but if he is not legally required to answer the charge, why should he testify before his accuser makes her accusation?
The attorney for Professor Ford has asserted her concern that being a highly trained legal mind, Judge Kavanaugh could take notes on the Professor’s testimony, and answer her allegations for-armed with the knowledge of her testimony. But ANY criminal defendant has the same right to do that same thing – why should Judge Kavanaugh be deprived of a right that the poorest, least educated member of society holds under the US Constitution?
Further, counsel for Professor Ford states that her client does not want Judge Kavanuagh to be present when she gives her testimony. There are instances, typically involving child witnesses, where the court will allow a witness to testify from behind a screen, or by close circuit television. However, those cases involve extremely vulnerable witnesses who may not be able to give their testimony otherwise. A person of Professor Ford’s life experience and professional abilities would not fit the criterion for a witness in need for such an extraordinary measure.
In the final analysis, the irony of the request made by Professor Ford’s attorney is extreme. Lawyers take an oath to uphold the Constitution of the United States, and the state to which they are admitted to practice law. To ask for the suspension of the Constitutional rights of a person being accused of what amounts to a crime is a reckless disregard for the rights of the accused, and an extremely bad precedent for the future.
Photo: Judge Kavanaugh (White House picture)