Thursday, July 31, 2008

SEALS Panel

I’m back in the United States, and yesterday participated in a lacrosse-case roundtable at the SEALS conference. My views on the case are, obviously, well-known to any reader of the blog. But here’s a summary of some points presented by the other panelists.

Jim Coleman

Nifong’s behavior took the case off the rails from the start. He probably believed (or allowed himself to believe) that Crystal Mangum was raped, but did nothing right.

Coleman explained the fraudulent lineup for those in the audience who hadn’t heard of it.

He (correctly) termed Nifong “unsophisticated” in dealing with the media, and chastised the national press for turning the case into a Tom Wolfe novel.

Nifong, he noted, wasn’t incompetent—he fully understood what he was doing, at every stage of the process. The only difference: he didn’t get away with it this time. Coleman observed that the unusual aspect of the case came in the State Bar/AG intervention, and predicted that such a scenario would be very unlikely to occur again.

A lesson of the case, in his opinion: the press needs to care more generally about what prosecutors are doing. There’s no accountability for rogue prosecutors.

Angela Davis

An inherent tension exists between a prosecutor as accountable to local voters and the need for a prosecutor to be an independent decisionmaker.

Nifong’s early actions might have been justified because sexual assault complaints by black women rarely are taken seriously. Davis excoriated Nifong for withholding the DNA evidence, but suggested the original indictment might have been justified*. (I don’t think that viewpoint can be reconciled with the AG’s finding of actual innocence.)

Davis argued that prosecutorial misconduct is rampant in the United States—she noted that in cases with plea bargains (95 percent of the total), people don’t get any sense of the prosecutor’s handling of events. She urged state bar associations to be more aggressive in going after prosecutors who violate ethical standards, and called on judges to be more aggressive in referring prosecutors who misbehave to Bar grievance committees.

Davis praised Brad Bannon’s work in the case and pointed out that his experience shows why public defenders need far more resources to do their jobs adequately.

She also chastised the press for paying more attention to the falsely accused lacrosse players than minority victims of prosecutorial misconduct. It’s worth remembering, however, that the press also paid more attention to the initial charges against the lacrosse players. Without that initial burst of publicity, it’s hard to imagine that the press would have picked up the story midstream and simply focused on Nifong.

I also pointed out that the North Carolina NAACP—which might have made the connection between the Nifong behavior and the normal victims of prosecutorial misconduct—instead aggressively sided with Nifong. But Davis suggested that the state NAACP had little power, and seemed not to see their performance in the lacrosse case as worthy of criticism.

UNC Law professor Michael Gerhardt

The case demonstrates our dysfunctional media system in covering legal events. The Duke lacrosse case perfectly played into the 24/7 news cycle, providing a good show for the media.

Nifong’s behavior also demonstrated the profound wrongs of trying a case in the public eye. Gerhardt pointed out that Nifong’s conduct caused the defense attorneys to appropriately recognize that they needed to get facts out to counter the false narrative the D.A. had created.

Gerhardt termed it a mistake to expect that the media will perform an educational role in covering criminal justice issues. Journalists, he reasoned, have too much trouble focusing on simple facts. The solution to the problem is to ensure that prosecutors have the right kind of ethics, since public accountability through elections is rarely a check for prosecutors. Davis agreed with this point.

University of Florida Law professor Lyrissa Lidsky

As Nifong gave 50+ interviews in the initial days of his involvement, it would have been hard for the media not to have taken account of what he said. But most journalists—at least early on—didn’t stop to consider the tremendous power of a prosecutor’s statement, especially in a national media firestorm.

The lacrosse case provided an “irresistible story” for many in the media, because of its dualities (differing races, classes, genders, etc.).

What should the media keep in mind in covering such cases? Journalists, Lidsky argued, needed to be particularly careful in reporting pre-indictment matters—and she believes the falsely accused players might very well have had grounds for a lawsuit against some journalists’ coverage of the case, especially since the lacrosse players in no way could be considered public figures or even involuntary public figures. She cited the Richard Jewell and Stephen Hatfill cases as illustrating the danger of the media’s rush-to-judgment culture.

Lidsky singled out the Times for criticism, noting that the mainstream media is too often like “sheep,” following the Times’ lead.

*Prof. Davis clarifies below: "I can't imagine that I used the word 'justified.' If I did, I certainly did not mean that I agreed with Nifong's decision to indict. What I said was that there was nothing illegal or improper about him bringing the indictments. My point here was that indictments are based on the low standard of probable cause, and indictments are brought every day based on the word of the complainant alone. Most states do not require corroboration in rape cases. This is the law. That doesn't mean that I personaly agree with this low standard for bringing indictments. Any person who has read my work knows that throughout my professional life (as a PD and law prof) I have criticized the low standard for bringing indictments. I was stating the law as it is, not as I would like it to be. I also offered what I believed to be a possible explanation for why Nifong pursued the prosecution in the first place (his desire to treat black rape complainants the same as he would white complainants). I then went on to say that he engaged in misconduct when he withheld the exculpatory evidence."

29 comments:

af said...

Dysfunctional judicial system--yep, we knew that. Dysfunctional media--that was a no-brainer. Dysfunctional educational system--I could probably find 88 or so reasons to agree with that one.
The question is------when will we stand up for what is right? No regard for gender, race, or class--just plain old right.
CYA, metanarratives, political correctness, listening statements... these are all just fancy ways of identifying BS.
Just do the RIGHT thing folks.

Anonymous said...

I never thought I would find myself echoing Angela Davis, but of course she is absolutely right in these remarks. The accused Duke lacrosse players fortunately came from relatively well-to-do families that could afford top-notch legal defense.

Most defendents are poor and ignorant. They can neither recognize nor afford good legal defense, and, in the overwhelming percentage of cases, most accept a plea bargain. In the case of the guilty, the plea bargain puts a criminal back on the streets sooner than the crime deserves. In the case of the innocent, the plea bargain puts an innocent in jail.

And the whole process is effectively unsupervised and uncontrolled. It is run by professional liars, a/k/a as democratically elected politicians, a frightening proportion of whom verge on the criminal themselves, and incompetent shysters, a/k/a as judges, most of whom were so inept that they could not make a living at their chosen profession of advocates.

JeffM

PS Lest anyone think I am engaging in hyperbole, I have watched the Supreme Court of a major state prove itself unable to distinguish between "shall not" and "may." I have also watched the Solicitor General of the US argue at trial court, at the appelate level, en banc, and before the Supreme Court of the US that contracts of the US are voidable by the US at the whim of Congress without damages. (It was fun, however, to watch Scalia humiliate the (deputy?) Solicitor General). The legal system of the US veers uncontrollably between the idiotic and the corrupt.

Anonymous said...

It is very interesting to read the comments of the various participants in the round table discussion. I do not see how Angela Davis can come to the conclusion that the original indictments were justified given that 1. the line-up cards that were used violated department and civil procedure 2. the DNA results were already in and there was no match 3. Crystal Mangum's testimony kept changing 4. there was exculpatory evidence that Nifong refused to look at that would at the very least raise grave concerns.
It is heartening to see that Dr. Lidsky singles out The NY Times coverage for approbation. I wish that we would see some msm coverage of the legal battle being waged over discovery and why that battle is so important. The unfettered control that prosecutors can wield is a grave danger to the civil liberties of all.
cks

Anonymous said...

"She [Angela Davis] also chastised the press for paying more attention to the falsely accused lacrosse players than minority victims of prosecutorial misconduct."

I think the press paid more attention to the falsely accused than to the false accuser. I also think the accused would never have been subjected to a year's worth of phony prosecution except for their race/gender/class--the press itself wouldn't have stood for it. (But that wouldn't agree with the metanarrative. . . )

Marco2006 said...

Welcome Home! It's good to have you back. Looking forward to the release of the UPI paperback!

Baldo

Anonymous said...

To anonymous, 8:45pm

I must disagree with you about Angela Davis. She used the forum to claim that complaints by black women are rarely taken seriously. She defended Nifong and claimed the original indictment might have been justified. Yes, she praised Brad Bannon, sort of. But then suggested it was his resources that allowed him to perform so well. And finally, Angela saw no reason to criticize the North Carolina NAACP!!

bill anderson said...

Indeed, welcome back, K.C.

If Angela Davis thinks the original indictments were justified, then she has nothing to contribute. She sounds like someone who really wanted the story to be true, but then had to settle for the truth that she did not want to hear in the first place.

Gary Packwood said...

Nifong reads what everyone else in Durham reads about Duke including the Duke syllabus about THE Hook Up Culture at Duke.

housecrs.trinity.duke.edu/document/spring04/datingandmating.pdf

I really don't find it at all surprising that Nifong, his wife and his ADA's believed that Duke students were behaving like a group of farm animals if Duke professors say they are.

There is not a shred of evidence that there is a Hook Up Culture at Duke University in Durham, NC.

A few faculty and staff members made up a problem to be solved and the young white male students who 'swagger' were appalled and decided to schedule 'hook up' and 'stripper' parties as a statement of irony. Clever?

As one students said last year on the Chronicle discussion boards...When would we ever have time to establish a WHOLE culture of hook up?

Nifong should have talked with the students about what was really going on and Jim Coleman and the rest of the faculty needs to do that starting about right now.
::
GP

AMac said...

Prof. Angela J. Davis, not Prof. Angela Y. Davis.

haskell said...

Well, I thought the SEALS were a bunch of Navy divers, but more power to them in their intellectual pursuits. And Prof. Davis may wish to change her first name to "Notthe". Oh well ....

Anonymous said...

What is a SEALS conference? I'm guessing it's not about the mammals or the elite squad.

xutag77 said...

From Prof. Lidky's comments, I have also wondered why the press has not been held to a higher legal responsibility in this case.

However, if a case is in the public forum, the press will get a pass because you have to keep them as your friend to get your word out.

How could the lacrosse players sue the local newspaper (or its national brother) and expect any reporting on the topic at all?

Only when their services are not needed for the defense will they get sued. But I believe they will still get sued in this case. They players seem to be standing on principle not money.

Anonymous said...

I say, again, that it's sad to see how much traction the 88ers' second metanarrative is getting -- even among the commentariat of this blog.

Remember, the first 88er metanarrative about this case was "the-history-of-white-men-as-feral-beasts-with-uncontrollable-lusts-for-violent -assaults-on-innocent-maidens-of-colour". As events made this first metanarrative non-viable -- indeed, all the evidence for this metanarrative rests in the minds of the 88ers -- the 88ers and their political accomplices had to come up with a second metanarrative, one which like the first would deflect attention from the real truths revealed by this case.

The second metanarrative is "innocent-defendants-are-commonly-charged-with-crimes-and-routinely-convicted-by- a-corrupt/incompetent-American-justice -system". Too many people, even here amongst KC's Sunshine Band, are falling for this one.

There's an old saying in American law about "rather see 100 guilty men go free than imprison one innocent". And that's what happens. For every innocent person that the system wrongly -- not corruptly, just wrongly -- convicts, it wrongly frees at least 100 of the guilty people. It's even what happened in this case as the guilty parties in this case went free. (That would be CGM and her fellow dancer, Kim, who could both be charged and easily convicted for filing false police reports and obstruction of justice.)

It would be a tragic irony if the 88ers gain a victory from this case, and that is why I am dismayed as I watch the public's gullible acceptance of the 88ers' second metanarrative.

RRH

Anonymous said...

Welcome back, K.C. I hope it means you'll write a bit more for your blog. My spirits are lifted each and every time you expose the bad guys.

Great post, af @8:20. The Right thing used to be an absolute concept. "Right" kinda went the way of "Truth." We are all worse for it.

As I was reading the panelists' comments I kept wondering "What do Journalism schools teach?" It's apparent journalism - real journalism - standards have fallen dramatically and it appears they have been replaced by only political correctness.

Anonymous said...

The Duke administration and the G88 get a pass?!

Duke Prof

Anonymous said...

RRH

I am not sure whether you were implying that I was somehow supporting anything said by the Klan of 87. I doubt it though something one of them said might have been correct by accident; you have not supported with any evidence your claim that I am echoing their assertions; and characterizing something as "metanarrative" is hardly an argument.

Nor am I arguing that most people convicted of felonies are innocent. Most are guilty as hell.

What I am arguing is that the so-called system of justice in the US is fantastically corrupt. I deal with that system every day. For example, read the government's briefs in the Winstar cases, which are still going on after 19 years. Justice delayed is supposedly justice denied, and Jarndyce versus Jarndyce represents the normal reality of US jurisprudence.

Or experience winning a case against a government agency, conducted before its own employee empowered as an administrative law judge, overcoming the deference given to the presumption of government regularity and to the agency's interpetation of its governing statute, and having the law changed by Congress within a week. Too bad, you lose because the government makes up the rules as it goes along.

Sit around and help determine which cases you are going to settle because the offer to settle has been carefully calibrated at 75% or 80% of the estimated cost to defend. I have been doing that for years and am disgusted every time I have to deal with a member of the defendents' bar who gives me what I am sure is a reasonable estimate of what it will take to defend some inane claim. (The claim I "liked" best was the character who claimed before the city human relations commission that he suffered sexual harassment because neither he nor his boss were homosexual and so he was disadvantaged compared to the women in his department. Yes, we settled even that one, admittedly for a very small sum, because just dealing with the depositions requested was going to cost a very pretty penny.)

The plaintiffs' bar and the defendents' bar are in tacit collusion to preserve contingent fees and to block the English rule because they both make money from promoting litigation against deep-pocket defendents. The entire plaintiffs' bar perpetually engages in barratry and maintenance, all of which were considered crimes in more civilized days. Modern tort law is simply a giant protection racket. Do you know the names Milberg, Weiss or Bill Lerach?

People guilty of heinous crimes who can afford great representation are found innocent: or are you one of the ones that think OJ was framed? Or how about Durst down in Texas, who admitted chopping his neighbor up and disposing of the body parts at sea but was found innocent of murder by a jury of his moronic peers. After all most people who chop up dead bodies in order to dump them in the ocean are simply doing a good deed by tidying up the neighborhood.

And look at the dozens of people that were railroaded in Dallas by an out-of-control DA over the years and are just now being exonerated. Nifong is just the tip of the iceberg when it comes to sleazy DAs. Even AG's are slimeballs: look at Elliot Spitzer who terrifed people into settling absolutely frivolous claims because they could not afford the consequences of continuing litigation and trial by press release. I mean, the idea that the board of NYSE did not know how to comprehend a compensation contract is hysterically inane.

Now if these are opinions that are rife among the Klan of 87, then maybe I shall convert to their way of thinking, but I'd like a little evidence that they have that much knowledge of how the world really works.

JeffM

af said...

To the 6:09
They teach the proper way to extend the metanarrative and make the reader perceive it as fact rather than fiction.
Truth is no longer a desirable quality in journalism. Extending the metanarrative is key.

Welcome back KC. Nice to have you home for a while.

Anonymous said...

This has got to be the most boring post of all times.
Nothing new, move along.
So you participated with the SEALS. You must be very, very, very smart. However they (you) say nothing but the same old same old. So what is your purpose? Trying to keep interest up for the paper back?
XXX

KC Johnson said...

To the 4.15:

"Paperback" is one word. It's always a good idea to check over your comments for grammatical errors before submitting them.

Anonymous said...

4:15pm-

Hey Wahneema.
How's it going?

Anonymous said...

4:15,

You seem to be a very bitter person.
This post is very informative to anyone interested in this case.
I've learned a lot from reading D-i-W about so many facets of life.
Each time I read Professor Johnson's evaluations of past and current aspects of this case I feel as if I'm reading words from an experienced attorney who is also a talented writer.
I also have enjoyed tremendously his lecture videos that the Diva posts on her blog.
You only wish you could present such a wonderful learning experience for so many the way Professor Johnson does.

lpj

JWM said...

Dear KC,

I gather from some of the other comments you’re now back home.

Welcome back. I hope you’ll post concerning some of your experiences in Israel.

Summarizing a part of Prof.Lidsky’s remarks, you say: “Lidsky singled out the Times for criticism, noting that the mainstream media is too often like ‘sheep,’ following the Times’ lead.”

I agree that often much of MSM does follow the NY Times like “sheep.”

But I hope Lidsky didn’t say that happened with the Duke lacrosse case. It didn’t.

The Times' first Duke lacrosse case story was published Mar. 29, 2006.

By that date, Duke had cancelled the lacrosse season and the anonymous Vigilante posters and the Durham CrimeStoppers Wanted posters were circulating on campus and in Durham. The players had very good cause to fear for their safety.

But the Times did nothing to contribute to that horrific situation; and no news organization up to that time was following it like “sheep.”

Did Lidsky mention the Raleigh News & Observer’s role in the case?

I hope so.

It was the N&O’s biased, racially-inflammatory and often false coverage that led the media pack.

By Mar. 27 when Nifong first spoke publicly about the case, the N&O had already trashed and libeled the lacrosse team, and laid out the framing script Nifong foisted on the public that day and for almost a year thereafter.

By Mar. 27 most people following the case thought the Duke students on the lacrosse team were a bunch of drunken, privileged, racists; three of whom had beaten, robbed, chocked and raped a frightened “young black mother” while their teammates stood by doing nothing to stop the crimes, and then subsequently stonewalled Durham’s police and covered up for their rapist teammates.

That was all 2 days or more before the Times published its first Duke lacrosse story which was far more temperate and fair than any news story, column or editorial the N&O had published up to that date.

Are you sure that in regard to the Duke lacrosse case, Prof. Lidsky “singled out the Times for criticism, [and noted] that the mainstream media is too often like ‘sheep,’ following the Times’ lead[?]”

I hope she didn't.

John in Carolina

www.johnincarolina.com

Anonymous said...

To JeffM, who said at 7:49 PM

"Now if these are opinions that are rife among the Klan of 87, then maybe I shall convert to their way of thinking."

As most of your complaints seem to be a call for tort reform I don't think you're in any danger of having to join the 88ers.

I don't want to go through each of your individual examples of the "perfidy" of the U.S. civil courts system though I wonder why you failed to mention the McDonald's "hot coffee" case. As far as the criminal cases you mention, a complaint that "rich people get off because they can afford the best legal representation" is akin to "rich people live longer because they can afford the best medical care." While the best lawyers and the best doctors often work for free (ask Daryl Hunt), there is a reason they are paid so highly for their work.

Btw, what's this about?

"And look at the dozens of people that were railroaded in Dallas by an out-of-control DA over the years and are just now being exonerated."

It's my understanding that since 2001, 17 people convicted in Dallas County have been freed by new DNA evidence -- the "most in the country" only because unlike most jurisdictions Dallas farmed out its lab work to private labs which -- contrary to state lab procedures -- retained their work products. Ok, so 17 people, some convicted more than 25 years ago, were freed. How many is that a year? What percentage is 17 compared with all the similar convictions in Dallas County? I hope you won't dwell on it too long because I think you get my point.

Finally, and most disturbingly, you say:

"What I am arguing is that the so-called system of justice in the US is fantastically corrupt."

My first instinct is to ask, "'Fantastically corrupt' compared with what?" What other system of justice do you find freer of corruption? Or are you trying to compare what we have to some utopian (or Jeffian) ideal? To that I would say, Jesus may be coming again, but he ain't here yet. Until then, we mere mortals must make do with our poor virtues and extensive vices.

RRH

KC Johnson said...

To JinC:

You asked, "Are you sure that in regard to the Duke lacrosse case, Prof. Lidsky “singled out the Times for criticism, [and noted] that the mainstream media is too often like ‘sheep,’ following the Times’ lead[?]'"

I'm quite sure. But readers needn't take my word for it: the transcript of the proceedings will be published in the Seton Hall Journal of Sports and Entertainment Law.

Anonymous said...

RRH

Let's see: just limiting the argument for the moment to tort and contract law, we could try the English rule. The Brits have been living under that for quite a while. We ought not have to wait for divine intervention to adopt that rule, but of course it would cost lawyers money so let's change the subject.

Or how about the nonsense of administrative law judges: employees of the plaintiff. The US never had such a thing until the 20th century (OK maybe 1887). Does it take the second coming to recognize that ALJs are SYSTEMATICALLY unfair and to revert to prior practice? After all, I do not get to pick my own employees to act as judges in my own cases, but the government does.

And I see that you completely avoid the topic of Spitzer's term as AG of New York. A wonderful example of the rule of law, if you like the law of banana republics.

Nor do you talk about the disgrace of allowing Milberg Weiss to continue in business. I presume you would find it just unconscionable to interfere with the earnings prospects of lawyers who voluntarily elected to work in a firm with senior partners who are proven felons.

Now I shall happily qualify my comments about OJ et al. I concede that lawyers differ in skill and that the perception of differential skill quite legitimately and quite naturally leads to differentials in pay. I have no problem with people getting the best lawyer that they can afford. My problem is with a system that allows clowns on the bench who cannot control those good lawyers sufficiently to permit a trial that vindicates the interest of the public in keeping murderers off the streets. In legal theory, there are two interests at stake in a criminal trial: one is the defendant's interest in avoiding conviction and the other is the public's interest in preventing crime. OJ and the Duke case are opposite sides of the same coin. In one, the criminal goes free because judge and prosecutor were incompetent; in the other, the innocent are prosecuted because the prosecutor was corrupt and the initial trial judges were in the tank for the prosecutor or were bigots ready to attribute guilt based on race.

Now where I agreed with Angela Davis (to my great surprise) is that if it is right to provide free representation to the indigent in criminal trials, that representation should be at least adequate. I greatly doubt that a public defender is frequently given the time to emulate what Brad Bannon did in the Duke case. Of course, you and I know that the public defender is usually defending a criminal with little defense possible so the limited resources of public defenders seldom result in the conviction of the innocent. But it is you who are being utopian if you think that lack of time available to public defenders NEVER results in conviction of the innocent.

Of course, the low quality of the American legal system is not limited to criminal cases. As I pointed out in an earlier post, I personally experienced a bench trial where the judge contrued a contract that said "shall not" to mean "may." It would be nice if most trial judges were not politically-connected failed lawyers. In fact, I'd consider it a meaningful improvement if periodicially they had to prove competency in reading English.

I find it rather odd that I should need to be arguing that the legal system of the US is in profound disrepair and is manifestly corrupt on a blog that was devoted to a case where three men were accused of a heinous crime without the prosecutor holding any credible evidence at all. I find it even odder that I should be accused of being a dupe of the Klan of 87 for making that argument. (I recognize that you have retracted that insulting accusation, and I thank you for being gracious enough to do so.)

JeffM

PS Nice try with the McDonald's case. Some things do correct themselves. For example, the 7th circuit UNANIMOUSLY dismissed a similar claim. So you cannot safely say that the McDonald's case is symptomatic of even coffee burn cases.

I'd love to argue with you the current state of the law on punitive and exemplary damages and what the social and economic effects of that law are, but it really is too far removed from the topic of this blog, and I doubt either of us really has the time to do it justice. (I'll give you my opinion for what it is worth: punitive and exemplary damages should not benefit the plaintiff or the plaintiff's lawyer and should be awarded by judges, not juries. I suspect we disagree.)

Anonymous said...

JeffM said at 10:50 AM

"But it is you who are being utopian if you think that lack of time available to public defenders NEVER results in conviction of the innocent."

First, I never said, and would never say that no innocent person has ever been convicted. However, you are limiting your hypothetical to the "lack of time" granted to public defenders.

It just so happens that I have been one of those "public defenders" who had an actually innocent client. I want to stress "actually innocent" to distinguish my client (a poor black woman accused of drug dealing) from the many guilty clients who get off (and yes, I got some of them off) on technicalities.

The point that I want to stress is that the conviction of an "actually innocent" defendant occurs so rarely that most Americans -- inured as they are to TV and movie stories -- would be amazed. At the most, we are talking about 1 in 1,000. While your denouncing the American system as "fantastically corrupt" and "out of control", can I ask you to show me a more accurate system?

Btw, as far as the British rule of "loser pays", I have heard good arguments on both sides. On that and other reforms -- of civil law -- I would probably meet you half-way.

You say you'd "love to argue" with me about punitive damages and jury trials, but I wonder if you really do. Do the lacrosse players deserve any punitive damages? Do you think a Nifong-friendly judge would award more damages than a jury?

RRH

Anonymous said...

RRH

No, the lacrosse palyers do NOT deserve punitive or exemplary damages. I have heard no plausible argument that explains why anyone should ever be awarded more in damages than he or she actually suffered.

In practice, I recognize that measuring some kinds of damage, emotional pain and suffering for example, is hardly precise, and I'd have no problem with allowing a jury a reasonable amount of latitude in estimating what is reasonable compensation for pain and suffering. Similarly, I have no problem with the triple damages standard of anti-trust law, where precise measures of damage are extremely hard to develop.

I have no doubt that the unindicted lacrosse players were subjected to a rather brief period of rather intense pain and suffering. They should be compensated for that pain and suffering, but those are compensatory, not punitive, damages.

Punitive and exemplary damages are not about making anyone whole. They are about punishing anti-social behavior. Awarding punishments to individuals when they were not the ones hurt makes no sense at all. I buy a scratched car, and in consequence I am rewarded with the entire profits of the car company for a year instead of an unscratched car? If anyone deserves that award, it is the others who bought a scratched car, not me.

Public wrongs demand a public remedy, not a private jackpot.

By the way, the English rule helps deal with another possible but unsound rationale for awarding punitive damages to plaintiffs who have already been compensated for their damages. The deserving plaintiff is not really made whole unless the plaintiff is also awarded costs, which seldom happens under the American rule.

As for the corruption in the criminal system, let's take your comment about the guilty getting off on a technicality. I think it was Frankfurter who said that the guilty should not go free because the constable blundered. I agree. If the constable (or in the Nifong example the prosecutor) blundered or committed a crime, the constable should be punished. That is a far greater incentive for the constable to do right than loosing the guilty to prey again on the innocent public. I view a system that repeatedly puts the innocent at risk because of the system's own failures as insanely corrupt, and in this case I have a well-respected Supreme Court justice to back me up. (Yes, I know: arguments from authority are weak.)

The fact that Nifong et al. are not being prosecuted criminally is a disgrace. As for the Nifong-friendly judges, they should be impeached for aiding and abetting a criminal conspiracy. However, I grant you your point, which helps prove the overall corruption of the system, that any judge who is one of Nifong's buds would not recuse himself if Nifong were the defendent.

JeffM

PS I get few of my thoughts from watching television, but I do appreciate your skill at constructing ad hominem arguments.

Anonymous said...

Dear KC,

Thanks for following up.

I plan to follow up with Lidsky to learn more about what she sees as the Times' role in reporting the hoax and the attempted frame-up.

Best,

John in Carolina

Mad Hatter said...

Boy, am I outta-the-loop!. I didn't even know that KC was back! Welcome home. Well now, let us pick up where we left off. How do we topple the corrupt goonies in Carolina? We need equal representation "by the people, for the people". Suggestions, anyone?