Maryland prosecutors known for taking on old sex assault cases

In Maryland, there is no statute of limitations for sexual assault or attempted rape. This means a California psychology professor's 36-year-old sexual assault allegations against U.S. Supreme Court nominee Judge Brett Kavanaugh theoretically could be prosecuted. The question is, would a district attorney realistically take the case?

Getting a prosecutor to take on sexual assault cases is often extremely difficult, said Baltimore and D.C. based criminal sexual violence attorney Steven J. Kelly of Sanford Heisler Sharp LLP.

"I can tell you, if this was not a political ... case, there would be no chance at all that it would be brought forward," Kelly said. "However, our attorney general is a Democrat who opposes Trump and does not like him. Maryland recently joined the lawsuit against Trump over migrant family crisis."

No complaining victim has come forward and no police report has been filed, according to statements from police in Montgomery County, Maryland, and neither the state attorney general's office nor the county prosecutor are pursuing any case, they have said.

However Kelly pointed out that if Maryland Attorney General Brian Frosh were to receive a police report, the case would be referred to Montgomery County's State's Attorney John McCarthy who, Kelly said, is known for for taking on sexual assault cases new and old.

"McCarthy's office is generally known for bringing sexual assault cases forward," Kelly said. "He's been very aggressive in cases against sexual predators, taking on cases sometimes a decade old."

Montgomery County has resources to pursue old cases, Kelly added.

"Montgomery County is a leader, out in front on issues of sexual assault," Kelly said. "It would have been a tough case back then," in the 1980s, when Ford said the assault took place. "It's a very, very tough case now but if it was going to happen anywhere, it would happen in Montgomery."

Some former California prosecutors said district attorneys would never pursue charges based on the available evidence and allegations made by Ford. However, others were not so sure.

Former Contra Costa and Santa Clara County prosecutor Chris Boscia, now senior counsel at McManis Faulkner, said, "Accusations alone are not always enough, but sometimes they are. Sometimes if a person is very compelling and convincing, that's all that a jury needs to decide to convict."

Boscia said a prosecutor approaching the case would first look for ways to corroborate the alleged victim's statements to bolster her credibility before considering charges. However, he admitted that not having a contemporaneous statement taken by the accused following the alleged incident makes a prosecution more difficult.

"So Brett Kavanaugh wasn't interviewed back then about what happened and what didn't happen," Boscia said. "In general today, it would be critical in understanding whether or not an accusation like this can be proven in court beyond a reasonable doubt."

Dmitry Gorin of Eisner Gorin LLP, who served as senior deputy district attorney in Los Angeles County for more than 10 years, said confidently that Ford's allegations are not enough to prosecute. "The way the system looks at it, without anyone claiming to have seen or say that she told them that it happened, this would be a deal reject. There's not enough evidence to prosecute."

While neither could definitively say for sure what a particular district attorney would do in this case, both Boscia and Gorin said statements from fresh complaint witnesses, people to whom a victim relays the story in the immediate aftermath, would be the first element needed in a he-said, she-said case like this.

Ford has indicated that journalist and director Mark Judge was present during the incident. He said he had "no recollection" of an assault.