More on Procedure

Among Duke Law School’s most celebrated recruiting coups in recent memory was the successful wooing of Professor Erwin Chemerinsky from USC Law School. In his tenure in Los Angeles, Chemerinsky had established himself as a significant presence in the city’s political, media, academic, and legal circles.

By his own admission, Chemerinsky has not followed the lacrosse case closely; he recently wrote that “my colleague, Jim Coleman, has followed it much more.” Coleman, it’s worth remembering, has bitterly criticized Nifong’s myriad procedural violations. For instance, in June he told Sports Illustrated, “You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, ‘You’ve got to convict somebody?’ To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice.”

But as Chemerinsky is a major figure on civil liberties issues, I had a few broader questions about the case to ask him.

Q: I did an examination of how most North Carolina cities and towns handle eyewitness photo IDs, and was surprised to discover the statewide trend in favor of greater transparency and due process. The Nifong-ordered lineup obviously violated both this trend and Durham city procedures in many ways. I also was taken aback by Nifong’s refusal to meet with defense attorneys to consider pre-indictment exculpatory evidence, despite a state bar ethics code requirement that he do so; and his highly prejudicial (and, apparently, misleading) public statements on the case, again in violation of the state bar’s ethics code. I realize you’re relatively new to North Carolina, but is it your sense that the legal community in the state believes that procedures can be cast aside whenever necessary?

Chemerinsky noted that he hadn’t been in the state long enough to get an in-depth sense of statewide commitment to procedures; but that he had encountered “great criticism” of Nifong among many lawyers to which he spoke.

Q: I’ve been troubled by commentators (such as Andrew Cohen) or local editorialists (such as Bob Ashley) who have implied that even if Nifong blatantly violated procedures to secure the indictments, the “process” requires the case going to trial and being decided by a jury. Do you share this view? Are there ways in which the media, or the academy, should be considering the procedural matters this case has raised absent the “facts” that would be determined at trial?

Chemerinsky: Of course, the process does not require that the case go to the jury. The prosecutor should take the case to the jury only if there are facts to warrant it.

As to the process, Susan Estrich had a wonderful essay about two weeks ago about its many flaws.

[Indeed, that Estrich essay notes, “If the discovery is any indication, [Nifong’s] case is sitting on quicksand . . . at the very least, standard procedure should have been to await the results of tests, and then, given the results, the inconsistencies in the woman’s statements, the fact that at least one of the boys seems to have an airtight alibi, investigate further before indicting anyone.” Instead, the USC law professor noted, Nifong demonstrated “a failure to follow standard procedure that is rather mind-boggling.”]

Q: I’m unaware of any case in the past 15-20 years where this extent of procedurally irregular behavior was widely known by the public at this stage of the process. (Obviously, we’ve seen worse prosecutorial misconduct than what Nifong has done, though the evidence usually doesn’t become apparent until post-appellate review.) Are you aware of comparable cases, either from your time in LA or since you arrived in North Carolina, where a prosecutor first assumed control of a police investigation and then disregarded multiple standard procedures in order to secure indictments?

Chemerinsky: I can’t think of any in such a high profile case.

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As Estrich pointed out, “There are reasons you follow procedures. In general, they are there to spare outrage.” In this case, Nifong violated procedures to announce that the police investigation had definitively concluded a crime occurred (even though the only evidence then, as now, was the accuser’s multiple, mutually contradictory, versions of events); and he then violated some different procedures in order to secure indictments before the primary.

When prosecutors violate procedure on such a massive scale, they deserve outrage.