As a partisan, I wanted the Brett Kavanaugh hearing to be decisive. I wanted Christine Blasey Ford’s testimony to crumble and Judge Kavanaugh’s to be flawless. Ultimately, however, as with most political debates, each side made points and neither could claim victory. The main take away for objective observers was that both were credible.
How is that possible? The answer seems to be more in psychology than politics.
A colleague of mine has lots of experience when the law meets trauma. Luka Misetic is a veteran international defense lawyer who has tried many war crime cases at The Hague. His client list includes the famous Croatian Gen. Ante Gotovina as well as a variety of individual soldiers. Misetic was heavily involved in reconciling the atrocities and chaos of the Bosnian war.
In 1998 he defended a soldier accused of raping and torturing a Muslim woman. Shortly after the incident she gave a detailed description of her assailant. However, three years later, in the trial, her description entirely changed. To explain why, Misetic called in the distinguish Yale School of Medicine psychologist Dr. Charles Morgan. As an expert witness, Dr. Morgan testified that “past memories can be impaired through exposure to misleading information.“ That is, shortly after trauma, stress causes the brain to accurately record some facts while selectively discarding others.
During cross-examination by Sen. Dianne Feinstein, D-Calif., Ford said that “indelible in the hippocampus is the laughter” of the perpetrators during the assault. But is anything really so “indelible”?
In 2013, Dr. Morgan completed an exhaustive study of 850 special operation soldiers. These elite soldiers were trained to resist brainwashing, the power of subliminal messaging, and anything that would alter an accurate memory of a traumatic event.
They were placed in a mock prisoners-of-war camp and interrogated in conditions that simulated a real prison. Afterwards, they were asked such questions as, what sort of clothes did your interrogated wear? What did he look like? Was he armed? What type weapon did he have?
The results were astounding. Ninety percent could not even identify their interrogator in a lineup. Eighty-four percent couldn’t spot him in a photograph. Most couldn’t confirm if he had been armed. And other basic details were missed as well.
Moreover, Dr. Morgan found that it was easy to implant a false memory even in these highly trained people. He explained that the neuropeptides increase during stress in order for us to cope and react. However, in the process, they also force victims to forget certain things. In short, trauma may damage the hippocampus and alter memory.
The laughter could indeed be indelible, but that doesn’t mean everything else is. For example, Ford could not remember where or when the incident took place.
Dr. Chris Tilitski, a psychologist in Macon, Ga., frequently works with the FBI and gives court testimony about trauma and factors that can influence memory. He states that “A false memory displays false emotions. Thus victims show real emotions because it is real to them. They cry, they look timid and anxious because they are.”
“This is not lying,” he adds emphatically. And as an aside, in addition to their many other shortcomings, polygraphs cannot distinguish between the truth and what someone sincerely believes to be true.
Tillitski further says, “Relevant to the Kavanaugh case is the nonstop media coverage. When information is saturated in the public arena, a person’s recall can be affected. Social contagion is one of many factors that can taint memory”.
In Misetic’s case involving Gotovina, there was international media coverage. Gotovina became a pop culture icon as thousands demonstrated on his behalf. Rock stars wrote songs about him and football teams raised money for his defense.
Did it affect the outcome? Misetic says “Perhaps. It is just as hard to isolate the judges as it is the witnesses”.
The FBI has now become the indispensable investigator in this case. It must sort out subjectivity from objectivity, and unless it identifies a new witness or shows why the other witnesses are wrong, neither side will budge. We will remain in the she said/they said situation and the matter will reach a political conclusion rather than legal one.
Jack Kingston is a former Republican member of Congress from Georgia.
