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With Brett Kavanaugh, it's not a question of guilt beyond a reasonable doubt. It's a question of credibility

With Brett Kavanaugh, it's not a question of guilt beyond a reasonable doubt. It's a question of credibility
Supreme Court nominee Brett Kavanaugh has denied allegations that he sexually abused Christine Blasey Ford in the summer of 1982. They testified before the Senate Judiciary Committee on Sept. 27, 2018. (Win McNamee / Getty Images & Saul Loeb/AFP/Getty Images)

In the national cacophony that arose after Christine Blasey Ford testified that Supreme Court nominee Brett Kavanaugh sexually assaulted her in high school, one refrain from his supporters has begun to drown out all others: Our country has abandoned its cherished ideal that a person is innocent until proven guilty.

“We just can’t assume that every nut job who makes accusatory proclamations is right,” wrote a reader in one of the many angry emails I have received in the past week. “You must get that through your thick head!”

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Thank you for sharing, sir, but the people who need to get something through their thick heads are the ones who believe, as you do, that Judge Kavanaugh is on trial.

He is not.

He is interviewing for a job.

Senators will not determine guilt or innocence; they will determine his fitness for a lifetime seat on the Supreme Court.

Most have already made up their minds, but what the three undecided Republican senators must determine, finally, is whether they believe that Ford is telling the truth about Kavanaugh, and whether he, in turn, has told the truth about himself under oath, and whether his partisan outburst in the hearing room befits a justice on the high court.

The question for a lot of Americans is how, exactly, are they going to make up their minds? It’s not clear whether the new, limited FBI investigation is going to turn up much in the way of fresh evidence. We know the FBI doesn’t render judgments based on its background checks.

But there’s a group of professional investigators who are trained to do just that. They are impartial seekers of truth, and their job is to determine to the best of their ability who is more likely to be telling the truth.

I called four of them to ask what they thought about last week’s hearing. Two got back to me by deadline.

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Amy Oppenheimer is a Berkeley attorney whose firm specializes in workplace and school investigations. She is past president of the Assn. of Workplace Investigators and is a contributor to the group’s training handbook.

Obviously, she said, no prosecutor would bring criminal charges against Kavanaugh for an alleged assault that happened so long ago. “But,” she added, “if an employer found out that an employee had engaged in this sort of conduct at work, even though it’s an old complaint, they might investigate because it’s so serious.”

In any case, she said, the standard of guilt, she said, would not be “beyond a reasonable doubt.”

It would be, as it is in civil court, “a preponderance of the evidence,” which some people describe as “50% plus a feather.”

In Oppenheimer’s estimation, Kavanaugh is likely to have assaulted Ford when they were in high school.

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Kavanaugh undercut his credibility in many ways, Oppenheimer said. “He obfuscated on his drinking, and on what he said about the meaning of phrases in his yearbook.” (“Devil’s Triangle.” “Boofing.”Renate Alumnius.”)

Also, his anger and evasiveness with Democratic senators who questioned him — for example, demanding of Sen. Amy Klobuchar whether she had ever drunk to the point of blacking out — are the kind of red flags that investigators watch for when they are determining credibility.

Kavanaugh’s performance, Oppenheimer said, was a textbook case of how to undermine your own credibility: “The fact that he argued rather than answered questions directly. When people lie or obfuscate, one of the things they do is get angry. His repetition of certain facts, and not answering questions, his putting it back on the questioner, undermined his credibility. He made all these assumptions, like ‘I would not have been partying on a weekday,’ when his own calendar shows he was.”

To give Kavanaugh the benefit of the doubt about the alleged assault, she said, “He may not be out-and-out lying.” But given his own dramatically professed love of beer, and what so many of his high school and college friends have said about his sloppy behavior while drunk, “It’s entirely plausible that this happened and he doesn’t remember it.”

In conclusion, Oppenheimer said, “I would say that a preponderance of the evidence supports the finding that the assault occurred essentially how she reported it, based on her certainty about the perpetrator. There was corroboration in his own calendar, making it entirely plausible.”

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Like Oppenheimer, Keith Rohman is a veteran workplace investigator. He is president and founder of the Los Angeles firm Public Interest Investigations, and is also president of the Assn. of Workplace Investigators.

He said he hadn’t seen the entire hearing and did not have a firm opinion about Kavanaugh’s credibility, but he dismisses the idea that the truth cannot be sussed out, especially in “he said/she said” situations.

“There is something inherently biased ... about that term,” Rohman said. “We don’t apply it to any other kind of wrongdoing. If I walk into an alley and a guy puts a gun in my face and robs me, and I go to the police station to report it and there are no witnesses and the guy with the gun said it didn’t happen, we don’t call that a ‘he said/he said.’ We figure out what happened. We do this in no-witness cases all the time.”

This one may be challenging, but it is possible to determine whether an assault is likely to have occurred.

“Anytime you are looking at an older allegation of assault or misconduct,” Rohman said, “you are always going to be peeling back layers of an onion, but it doesn’t mean it’s impossible to do fact finding.”

So, for instance, reports of Kavanaugh’s excessive drinking at Yale and the allegation that he exposed his penis to fellow student Deborah Ramirez may not prove that he drunkenly assaulted Ford. But such behavior is consistent with Ford’s story that he drunkenly assaulted her in a bedroom during a party in the summer of 1982 when she was 15 and he was 17.

Likewise, the party notation on his calendar around the time Ford said she was assaulted is not a smoking gun, but “it does impeach his credibility.”

“You put together a stack of those and say, if he’s lying about all these small things,” Rohman said, “is it possible he is lying about more significant things?”

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The point is, as Rohman put it, “If you can’t decide about this, then you can’t decide about the guy who mugged me in the alley.”

Like any American, Kavanaugh is innocent until proven guilty.

But this is not court, there are no charges and no one is putting him on trial.

This was a job interview. He does not deserve to be hired.

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