The Liestoppers board brings protests from Al McSurely (chair of the state NAACP’s Legal Redress Committee) and Irving Joyner (NAACP “case monitor”). Their claims, according to Cash Michaels? “The Wilmington Journal contacted Rev. Barber and attorneys Joyner and McSurely, and shared the above passages with them for comment. Each made clear that they were never contacted by either Taylor or Johnson for comment in the book about issues specifically relative to them as noted.”
One reason I prefer dealing in e-mails is that doing so leaves a written record, making it easy to respond to claims such as the one above. I reproduce the e-mails that I sent to McSurely and Joyner over the course of the case.
Reading through the Nifong response to the Bar, I was struck by the DA’s claim that he isn’t required to turn over to the defense full tests results as long as they have access to the underlying data. The inference would seem to be that wealthy defendants, who can hire the best lawyers to figure out such data, are OK; but others are out of luck.
I realize that the state NAACP has vigorously associated itself with Nifong’s case, but do you share his belief that defendants are not entitled to full reports?
This e-mail was first sent March 2, 2007, at 2.33am; it was resent on March 3, 2007 and March 6, 2007. McSurely, given an opportunity to deny my claim that "the state NAACP has vigorously associated itself with Nifong’s case," never replied.
My name is KC Johnson; I am a professor of 20th century US political and constitutional history at Brooklyn College, CUNY. My academic CV is below: http://academic.brooklyn.cuny.edu/history/johnson/cv.htm
I have blogged extensively on the Duke lacrosse case, and am puzzled by two legal issues related to the case and the NAACP’s role. I was hoping you could answer my questions, if you have the time:
1.) I did a post, which I’m going to expand into an academic article, on the photo lineup procedure used in the case, and its relationship to statewide patterns. It’s my sense (this is certainly what I teach in my constitutional history class) that the NAACP has been at the forefront of opposing suggestive lineups or prosecutors who don’t follow their own procedures.
Yet in this case, I’ve seen no protest from the NAACP on the lineup tactics; Irving Joyner has even suggested that the issue is best resolved by a jury. Has the NC NAACP involved itself in any cases in the past regarding suggestive or procedurally flawed lineups, or is this an issue usually not of concern to the NC NAACP?
2.) I read a couple of months back in the Durham Herald-Sun that you considered filing, on behalf of the state NAACP, a request for a gag order, or what you called a “quiet zone/let’s let justice work” motion, since “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.”
I’ve looked over the NC ethics code, and it seems to me under the exception in 3.6 involving responding to statements by the prosecutor, the defense in this case can pretty much say whatever they want. Did the NAACP criticize Nifong’s publicity barrage in late March/early April?
Also, I’m unclear on what you meant when you spoke about depriving “the alleged victim of her legal rights to a fair trial.” I’m pretty knowledgeable of the NAACP’s long tradition of trying (and, alas, not always succeeding) to ensure the right to a fair trial for defendants (I teach the Klarman and Tushnet books regularly), but I haven’t known of the organization to be at the forefront of the victims’ rights movement. It seems to me a claim that an accuser has “legal rights to a fair trial” would represent a 180-degree shift from the NAACP’s traditional positions on criminal justice issues.
Do you see the NAACP now moving more toward defending victims’ rights and lessening its traditional concerns with the rights of the accused?
This e-mail was sent on August 15, 2006; McSurely replied, and we quote from his reply in the book.
My name is KC Johnson; I am a professor of history at Brooklyn College and have blogged extensively on the lacrosse case.
Some time ago, Cash Michaels suggested to me that I needed to look more closely at your record to get a better sense of your approach to the law. I’ve been looking through some of your old cases, and am a bit puzzled. I realize lawyers must represent their clients, but it seems that some positions you’ve taken in previous cases are inconsistent with positions on the law you’ve taken in the lacrosse case. I should say, with the exception of the Taylor case and perhaps your Shamsid-Deen appeal, I’m quite sympathetic to most of the arguments you presented in the cases I examined.
1) For instance, the argument you expressed in State v. Sanders/Randolph, regarding the constitutional violations in the state not providing a bill of particulars. As you know, in the lacrosse case, the defense was denied a motion for a bill of particulars--in a case where the timeline was vital because of unimpeachable alibi evidence. I hadn’t seen you comment in protest of that decision.
I was wondering why you felt the denial of a bill of particulars was a constitutional violation in Sanders/Randolph but not in the lacrosse case.
2) I also noted your sympathetic portrayal of Matthew Lawrence Taylor in the media, even after his conviction. Most people would consider this sort of hate crime to be a horrific act. I haven’t seen any favorable comments from you about the three defendants in the lacrosse case; and I was wondering what you saw in Taylor’s character that made you, apparently, view him more favorably than the three defendants in this case.
More generally, as I was looking over cases of yours I could find in Lexis/Nexis, you generally seemed to be quite critical and in some cases extremely critical of the police and the prosecutor’s office. That obviously hasn’t been your position in the lacrosse case. I was wondering if you could pass on to me cites of other cases where you had generally remained silent while credible allegations of prosecutorial and police misconduct had been made. I wasn’t able to find any in the record, but I presume there are several such cases.
This e-mail was sent on January 19, 2007, at 12.47am. Joyner replied but skirted my questions.
My name is KC Johnson; I’m a professor of 20th century legal and political history at Brooklyn College, CUNY: http://academic.brooklyn.cuny.edu/history/johnson/cv.htm.
I have followed the lacrosse case closely, in part as a blogger, and noticed that you had commented frequently about it. I had a couple of questions:
1.) I recently completed a study of eyewitness ID procedures from around the state. The study revealed that the procedures used in this case wildly varied from North Carolina norms, in ways ranging from the non-use of filler photos to the decision of the police officer overseeing the identification to tell the witness that the array would be confined to suspects only.
I know in New York, the state NAACP and civil rights community has been very aggressive (and effective) in demanding that authorities act in accordance with their procedures. In your dealings with the organization, does the North Carolina NAACP support the consistent following of procedures by authorities?
2.) I was struck by a comment you made to Sports Illustrated:
“Much of what the defense is putting out there now will never be presented to the jury,” adds North Carolina Central law professor Irving Joyner. “We have a rape
shield law and other evidentiary barriers. Nifong may have been engaging in some political showmanship at the beginning of the case. But that does not take away from the value of his evidence and the fact that he has probable cause to pursue the case. He still has a viable shot at victory before a jury in Durham.”
I’m obviously not familiar with NC’s legal code; I know you are. Most of the evidence I’ve seen from defense consists of such things as police or eyewitness reports, transcripts of the lineup ID session, cellphone records and a videotape of one of the accused showing he wasn’t even there at the time of the alleged attack. Is it your sense that this evidence “will never be presented to the jury”?
Also, why did you state “jury in Durham” instead of just “jury”? Is it your experience that juries around the state operate differently?
This e-mail was sent on August 1, 2006, at 7.14pm. Joyner replied, and we quote from his reply in the book.
[I should note, for the record, that Michaels never contacted me before publishing his article to verify the recollections of McSurely and Joyner. Had he done so, I would have gladly supplied him with the e-mails I reproduced in this post.]
McSurely and Joyner might not like the conclusions that Stuart Taylor and I drew about their efforts in bolstering Mike Nifong’s prosecution. Indeed, I can see where they would be embarrassed by their performance in the lacrosse case, since their stated positions so consistently contradicted the NAACP’s traditional principles on criminal justice issues. But they certainly cannot claim with any credibility that I did not present them with an opportunity to respond to issues raised in the book about their behavior.