Trial by Ambush and The Nomination Of Judge Brett Kavanaugh

Almost all of us are shocked they way that Judge Kavanaugh has been treated in his Supreme Court confirmation hearing.  Many on the Far Left have made it clear that their mission is to prevent his confirmation at all costs.  What has been especially irritating is the Far Left's hypocrisy regarding the value of truth (including Senator Blumenthal), their hypocrisy regarding the valuing of women (including President Bill Clinton, Senator Booker who sits on the Senate Judiciary Committee and Congressman Keith Ellison who is the Democrat Party's nominee for Attorney General in Minnesota) and their hypocrisy regarding the value of due process (the Judge Kavanaugh hearing).

Listening to many voices last week, Senator Grassley agreed to extend by one week (as requested by Senator Coons) the investigation of the accusations made by Dr. Ford.  However, Dr. Ford's lawyers have continually refused to provide corroborative evidence to the Senate Judiciary Committee including information about the therapy notes that she shared with at least one news outlet, the polygraph that she took to bolster claim that she was telling the truth and other information about Dr. Ford's allegations.

Senator Grassley's letter is a great example to discuss how the discovery process works in a court.  In the letter, he states that he is seeking (once again) the therapy notes, the polygraph examination material and the other information about the allegation from Dr. Ford's attorneys.  Thus far, the attorneys have refused to provide a response to that request.

Here is why the failure of Dr. Ford's attorneys to provide the requested information from the Senate Judiciary Committee is important from a trial attorney's point of view.

First, having myself a voluntary subject to the jurisdiction of a lawfully recognized tribunal or court, I try very hard to not ever be in violation of that court or tribunal's directive even if it is going to be contrary to my client's position.  I have to comply with that court's or tribunal's orders.  Their house, their rules.

Second, Dr. Ford does not have any right to withhold the information sought by the Senate Judiciary Committee.  Certainly, she has not sought relief from that order by a higher authority.

At the very least, I suggest that Dr. Ford waived her right to confidentiality of certain records once she shared them with a third party (in this case the Washington Post). Additionally, it is a basic premise of law that you cannot cite a source for your own credibility and then trying to play hide the football after trying to score a point.

I also suggest that Dr. Ford's citing of passing a polygraph without producing the examination is also an attempt to play hide the football. Here is why: New Mexico is one of the few jurisdictions that permits the introduction of polygraphs into evidence. However, prior to bringing up the existence of the polygraph, there is an in camera hearing (i.e., a hearing outside the jury's view) in which the court determines if the prerequisite foundation has been laid. The foundation includes all notes, all graphs, the pre-interview tapes, and many more items.  In the present case, Dr. Ford's attorneys have refused to turn that information over to the Senate Judiciary Committee.  

In all courts that I have appeared before (both civil and criminal courts), if any party drops that kind of evidence in to the main case in front of the jury and then refused to supply that requested material, the court would most likely sanction that party.

Sanctions could include 

1). The imposition of fines, fees and costs;

2). The striking of that witness' testimony; or,

3). The dismissal of the Plaintiff's case (if they are the ones who fail to comply with the discovery request).

I might also add, that the attorney or attorneys representing that party who dropped that evidence in front of the jury without providing the evidence to the other side would likely get referred to their state bars for doing what they did.

Almost everyone agrees that the goal of many on the Left is to delay the confirmation vote until after the mid term election.  Most of us understand that goal.  But, the means to achieve that goal is what Democrats, Republicans, Libertarians and Independents are so mad about.  I see a long term backlash from the Far Left's tactic which the country may have to endure for all future nominations unless those on the Far Left can be brought back to reality.

Here is Senator Grassley's letter:


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