Brett Kavanaugh would not have been treated fairly had he been a defendant in federal criminal court

Throughout the confirmation process of Justice Brett Kavanaugh, the President and the GOP have trumpeted how important it is for our society to value the presumption of innocence. Many criminal defense lawyers smiled as they heard conservatives champion this principle.

The sad truth, however, is that if Kavanaugh had been criminally charged in federal court, he would not have been treated so fairly.

Our criminal justice system is set up crush defendants, even innocent ones.

Obtaining an indictment against Brett Kavanaugh would have been easy.  The old saying is that a grand jury would indict a ham sandwich if a prosecutor asked. The reality is that a ham sandwich would be indicted even if it had no ham.{mosads}

There is no requirement that prosecutors tell the grand jury about exculpatory information (evidence that would help show that Kavanaugh did not commit the assault).  Even if prosecutors only had one uncorroborated statement, that would be enough to charge Kavanaugh. And that statement could be introduced through an agent, without even calling the accuser.  In other words, hearsay is admissible before the grand jury — the accuser need not testify, and a law enforcement agent can summarize the statement for the grand jury. 

It’s so ridiculous that the defense is not permitted in the room and is not permitted to cross examine any of the prosecutor’s witnesses.

Kavanaugh would be arrested and likely held without bond.  Once an indictment is returned, federal agents would arrest Kavanaugh in front of his wife and children at 6am.

Prosecutors could then ask for the bail hearing to be put off for three days while Kavanaugh sat in a detention center. Prosecutors almost always ask for defendants to be detained without bond because they know that detained defendants are more likely to plead guilty.

More and more, courts are granting these requests.

Brett Kavanaugh would not be entitled to witness statements or to take depositions.  The discovery process in federal criminal court is a joke. Remember those witnesses called before the grand jury? The defense is not entitled to see their statements until the witness testifies at trial.  And if one of the grand jury witnesses does not testify at trial, then the defense is not entitled to review that statement.  So too with other statements taken by law enforcement. They aren’t discoverable until after the direct examination of the witness at trial.

Forget about taking those witnesses’ depositions. Depositions do not exist in federal criminal trials, which may make you wonder how Kavanaugh would know what the witnesses were going to say. He wouldn’t, and he would find out at the same time the jury heard it.

Even if some of the witnesses who were interviewed provided helpful information for Kavanaugh, it would be up to prosecutors as to whether to disclose that information.  Judges typically will not get involved in defense requests for information. They will say the government knows that it must disclose helpful information if it is material to the defense and that they trust the government will do so. Of course, prosecutors often view defenses narrowly and therefore do not disclose information a defendant would find useful.

Most judges would have permitted the jury to hear other allegations against Kavanaugh, no matter how extreme.  The Federal Rules of Evidence allow prosecutors to use other bad acts to show intent, motive, identity or lack of mistake.

For example, in one appellate case, the court held that in a prosecution for sexual assault where the victim claimed she escaped, prior accusations of rape were admissible to show that the defendant would have gone through with it if the victim had not escaped. United States v. Williams, 816 F.2d 1527 (11th Cir. 1987).

Additionally, if Kavanaugh argued that the accuser was mistaken, prosecutors could then put in evidence of other allegations against Kavanaugh to show that this accuser was not mistaken.

If a jury convicted Kavanaugh at trial, he would get a much higher penalty than had he pleaded guilty.  The National Association of Criminal Defense Lawyers just came out with an extensive paper explaining the trial penalty and why it has led to the near-extinction of trials, even for innocent defendants.

So even if Kavanaugh was innocent, there would be an enormous amount of pressure for him to plead guilty and accept a modest sentence so he could see his girls grow up instead of spending 20+ years in prison. 

On appeal, the court of appeals would be required to accept as true the accuser’s claims.  If Kavanaugh proceeded to trial and challenged the sufficiency of the evidence, the court of appeals would be obliged to accept the accuser’s claims in the light most favorable to her.

As for the other issues — like disclosure of favorable information or admission of prior bad acts — the appellate court would only reverse if Kavanaugh could show prejudice: that the trial would have ended in a different result absent the mistake. 

These standards make it almost impossible to win an appeal after a guilty verdict.

These are just some of these systematic problems in our criminal justice system that is set up to convict and has unfortunately moved far away from the principle that it is better for 10 guilty to go free than for one innocent person to be convicted. 

Lawmakers who forcefully backed Kavanaugh on the presumption of innocence — and Kavanaugh himself — should support the important change that is needed to breathe life back into presumption of innocence in federal court.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C. and as an Assistant Federal Public Defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.