Tuesday, November 27, 2012

Murphy, Paul, and Due Process


Two names from the past in the news.

The H-S reports that the State Bar disciplined former Nifong ADA Jan Paul, who left the DA’s office last year. (A one-year suspension of her license to practice law was stayed.) Paul was disciplined for abusing her authority as she prosecuted a case of alleged sexual abuse of a child. When the child’s mother said she didn’t believe the charges, and planned to visit the child that afternoon, Paul—according to the Bar’s order—“instructed a police investigator to take out warrants against [the mother] for aiding and abetting first-degree sex offense of a child, accessory after the fact of first-degree sex offense with a child, and aiding and abetting indecent liberties with a child.” The problem? She had no reason to believe the claims were true.

The mother was nonetheless arrested—but an alert judge freed her on a Friday afternoon, and then dismissed all charges on the following Monday.

In an interview with the H-S, Paul described her decision to seek the arrest of someone without probable cause as a “mistake of law.” 

Former ADA Paul, alas, is no stranger to poor judgment. In 2007, she attended Mike Nifong’s criminal contempt trial, nodding vigorously nodded as Nifong’s attorney hailed his client’s truthfulness, and then weeping after her ex-boss was found guilty.

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I have a post at Minding the Campus detailing the latest activities of Wendy Murphy, who’s demanding an investigation of the University of Virginia after a UVA disciplinary tribunal (almost amazingly) found an accused student not guilty of sexual assault. Explaining her rationale to a local website, Murphy said that colleges are compelled to convict when “[the accuser’s] accusations are deemed credible, and [the accused student’s] denials are not described with the same glowing terminology, she wins.” This is quite an extraordinary standard.

As for the procedure that Murphy deems too easy on the accused student? Here’s a summary:

First, UVA hires investigators (as is perfectly appropriate) to look into all claims of sexual assault. Yet while university procedures identify these figures as “neutral fact-finders,” the investigators actually play a role that virtually anyone outside the university would recognize as non-neutral. Investigators combine the role of the police (interviewing all witnesses, “visit and take photographs” as necessary, work with the local police) and the grand jury (“determine whether or not there is good cause to investigate a hearing”). For good measure, the investigators produce the equivalent of a grand jury presentment (“a detailed written analysis of the events in question”). The accused student can speak to the investigators but has no right to examine evidence or to cross-examine witnesses at this stage. Would faculty members at the UVA Law School consider the police and grand juries to be “neutral fact-finders” in the criminal justice process?

Second, these supposedly “neutral fact-finders” have a right to hold the “accused student’s transcript” before the hearing even adjudicates the case. Yet the policy confers no such right regarding the accuser’s transcript if the investigators conclude that the accuser probably lied.

Third, the accused student has a right to an advisor for the procedure—but this advisor is selected not by the student but by the chairman of the judicial tribunal that will adjudicate his fate. He can also have a secondary advisor, but this secondary advisor “may not be an attorney.” University guidelines offer no explanation as to why UVA considers attorneys to be so dangerous.

Fourth, the accused student must present a list of witnesses before a pre-hearing meeting. Yet the university, functioning in the role of prosecutor, has the right to add witnesses at the hearing itself—after seeing the accused student’s list.

Fifth, the accused student, through his non-attorney advisors, doesn’t even have the right to cross-examine all witnesses—because, the university helpfully explains, “the hearing will not follow a courtroom model, and formal rules of evidence will not be observed.” If witnesses don’t appear, the board can accept their statements as given to the “neutral” investigators—at a stage of the process in which an accused student had no right to cross-examine even in the limited form allowed by the tribunal.

Sixth, the power of the accused student’s non-attorney advisor is limited in another critical way—because the chair of the hearing, not the accused student, has sole power to “determine the order” at which witnesses appear.

Seventh, in the hearing itself, the accused student’s non-attorney advisor can submit cross-examination questions for all witnesses—but cannot ask questions herself, even of supposedly neutral witnesses. There is no guarantee that cross-examination questions the accused student deems critical to his defense will, in fact, be asked by the tribunal.

Finally, and in line with the OCR mandate, the accused student is judged according to a 50.00001 percent preponderance of evidence standard, and if the accused student prevails, the accuser can nonetheless appeal.

It’s nothing short of astonishing that, given her record of fabrications on such a high-profile case as Duke, Murphy is still taken seriously by either the legal community or the media.

17 comments:

guiowen said...

KC,
It's good to see you're still posting. Sidney Harr thought you might be considering moving to Ecuador (or at least to the Ecuadorean Embassy). Since he loves you so much, this really had him worried.

skwilli said...

My advisor in such a situation would be a kangaroo, solving all the problems. I'd also alert all Fox News affiliates within 100 miles and PETA just to make sure there was some publicity.

And the kangaroo would have more credibility than Ms. Murphy simply by default. They're an intelligent species.

Anonymous said...

Is Murphy a Communist?

Anonymous said...

The reason that universities don't want attorneys at their hearings is because there is only one type of person who has legal knowledge, who has been trained to go into a room full of people who despise what they have to say, who has experience doing it, and who will nevertheless stand up and say what has to be said anyway. I have used the words "sham," "mockery" and "travesty" at university hearings in the appropriate circumstances and been shown the door. Who else has that type of experience and legal training to boot?

Perhaps it is time for the Virginia ACLU to file barratry charges against the lay advisors and promotion of barratry charges against the University of Virginia?

Keeping the one type of person most likely to be able to help the accussed out of the hearing is a pretty despicable tactic. It's good to be the King. In student hearings involving alleged sexual assault, with contemporaneous criminal charges filed or the threat of them, courts have held that due process gives a "defendant" the right to counsel.

Here's an article that examines Confrontation Clause issues in an educational hearing setting: http://sogpubs.unc.edu/electronciversions/slb/slb99f12.pdf

MOO! Gregory

William L. Anderson said...

It is interesting to see the kind of kangaroo courts the education "elite" have created, and make no mistake, this is a kangaroo court. Even more important is that this kangaroo court setting not only is endorsed by the Obama administration, but actually is ordered into being.

The United States, through the various "Mondale" Acts and the Violence Against Women Acts, already had lowered the due process standards and lowered standards of evidence for so-called sex crimes. I look for the government ultimately to try to bring the college standards into the courtroom, first for civil cases and then for criminal ones.

Notice that this destruction of due process of law has come from American education "elites," and politically-correct elites at that. Do not kid yourself about the implications here.

As a professor, if any female student does not like her grade, the government has encouraged her to bring sexual assault charges against me, and the Obama administration already has rigged the process to where truth does not matter, only the accusation itself. Some professors in the future are going to find themselves accused in this manner even though they obviously are innocent, but the administration might want to be rid of them.

As I said before, the implications of this Obama rule are ominous and are utterly destructive to any rule of law. Perhaps it is ironic that a former professor of Constitutional Law has decided to use his powers as president to destroy any Constitutional protections. A sign of our times, I guess.

Anonymous said...

"It’s nothing short of astonishing that, given her record of fabrications on such a high-profile case as Duke, Murphy is still taken seriously by either the legal community or the media."

Professor, I respectfully disagree. It is a nauseating indictment of the ethics or lack thereof of the so called legal profession.

Anonymous said...


Professor Anderson wrote: "Even more important is that this kangaroo court setting not only is endorsed by the Obama administration, but actually is ordered into being."

I don't think that is true at all. Please provide quotes to the Violence Against Women Act ("VAWA") or the VAWA Reauthorization Act of 2011. From what I've read of the statute and bill, they (1) provide a framework so that adequate notice is given to ALL PARTIES of the charges brought, the hearing date, appeal, etc., (2) provide that a hearing has to be "prompt, fair and impartial," (3) provide that each party can bring an advisor of "their choice" to the hearing, (My interpretation of the VAWA Reauthorization Act of 2011 is that an accused can bring an attorney to the hearing.), and (4) that each party has the right to evidence and witnesses that the other party has.

All of those are good things. We can agree that portions of the Virgina procedure are abhorrent, but to claim that President Obama's administration or the VAWA do things they do not do without some evidence to support your proposition is hyper-polical partisanship. MOO! Gregory


Anonymous said...

By the way, I believe that a number of the Virginia procedures cited by Professor Johnson in his post would be in violation of the VAWA Reauthorization Act of 2011's provisions dealing with "prompt, FAIR and IMPARTIAL" hearings. As a whole, the provisions of VAWA and the Reauthorization can be read as providing equal rights to accuser and accused. When one side gets to put a thumb on their side of the scale, as in the Virginia model, hearings are de facto unfair and partial. MOO! Gregory

Anonymous said...

Johnson you are such a hack. your facts and narrative are completely wrong. No investigator was hired. All are UVA employees with an agenda.

You omit to mention that the UVA nurse hid evidence and changed her findings.

You omit that the accused had a defense attorney monitoring the so called investigation.

You omit that UVA covered up prior accusations against the student.

Johnson this is going to be your Duke/Nifong case because you are shooting your mouth off without the facts. There are currently two separate investigations underway of UVA and these facts will come out.

FACTS about the UVA process:

FACT #1 Not one single conviction of "RAPE" in over a decade!

FACT #2 Not one single case of an SMB expelling a student in over a decade or perhaps ever as they refuse to deny or confirm the latter.

The two above facts speak to the truth of UVa's policy. It's that simple. You are wrong on this one!

William L. Anderson said...

The Duke Lacrosse Case got legs precisely because of the destruction of due process that was mandated first by the Mondale Act and then by the VAWA. Remember that North Carolina law, as ordered by these two acts, does not require corroborating evidence either in child molestation or sexual assault cases, which is why Crystal's word was enough not only to bring up indictments, but also was a standard for conviction.

When Nifong dropped the rape charges, remember that a number of legal pundits praised him because the standards of proof had been dropped. DNA would not matter, nor would medical evidence. All that was needed to convict those players was Crystal's tearful testimony, which is why I am absolutely convinced a Durham jury would have convicted the players.

Because of the Mondale Acts and VAWA, a mere accusation is now a standard of proof, and a lot of innocent people have gone to prison because these laws have encouraged prosecutors to bring charges whereas the older legal standards would not have done so. I have no doubt in my mind that the activists will not stop until criminal courts in this country adopt what essentially is the "Dear Colleague" standard.

Universities are permitted to use administrative standards, which are more like the old Napoleonic Code than anything that came from our Anglo-American legal traditions. Under administrative standards, it really is "guilt until proven innocent," and it is very, very clear that people like Wendy Murphy want that same standard in criminal courts.

She hardly is a lonely voice, and as we have seen the Bill of Rights slowly but surely repealed by both the Bush and Obama administrations, I don't think it is farfetched to believe that not long in the future, our legislatures and judges are going to declare sexual assault and child molestation to be so serious that ordinary criminal due process standards must be changed so that people who commit these horrible crimes MUST be convicted and punished.

And if innocent people are caught up, we will hear one or both of the rejoinders: (1) no accused is innocent, as the very accusation is proof of guilt, or (2) if innocent people are convicted, either they are guilty of something else or this is collateral damage, something that is necessary for the greater good.

Americans already have embraced extra-judicial assassinations, drone strikes that kill innocent bystanders, torture of the accused, destruction of due process in "terrorism" cases, and many other things that have eviscerated the Bill of Rights. I really don't think that Americans will blanch at destroying due process of law when it comes to so-called sex crimes.

KC Johnson said...

To the 10.38:

Thanks for your temperate reply.

As you'll notice on Item IV(C) of the linked description of UVA's procedures, any formal complaint results in "an investigation by such person or persons (the 'Investigators') designated by the Vice President."

I apologize if you were confused by my using the very term that UVA employs in its own procedure.

Whether any accused student had a defense attorney "monitoring" an investigation is irrelevant--since, as I point out in the post, the UVA procedure explicitly prohibits attorneys from playing any role in the process. Attorneys are the only group so singled out.

Chris Halkides said...

The Cornell Daily Sun wrote, "'The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,' Prof. Cynthia Bowman, law, said in a statement to the U.A. [university assembly] 'To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.'

“Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian,” she added.

Prof. Kevin Clermont, law, who serves on the U.A.’s Codes and Judicial Committee and has been a vocal opponent of proposals to lower the burden of proof in sexual assault cases, said he agrees with Bowman’s sentiment.

'Not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque,' he said. 'Across the political spectrum, law professors are in agreement that such an administrative procedure is fundamentally unfair.'"

I cannot comprehend why a univeristy would do anything but utterly reject a system of adjudication that law professors condemn in no uncertain terms.

jim2 said...

Was it not Murphy who said, "I've never heard of a false rape claim."?

Here are a couple more from one woman, but at least she will serve some jail time for the second one. Fortunately, the authorities (British) accepted the man's documented alibi in this case.

http://www.bbc.co.uk/news/uk-england-manchester-20586557

Chris Halkides said...

To a nonlawyer it is puzzling that the hearing process is not open to the public but the Final Outcome Letter may be shared. I assume that this is legal, but it is not exactly transparent.

jim2 said...

http://www.newschannel5.com/story/20251444/woman-files-false-rape-claim-because-she-didnt-enjoy-it

Wendy Murphy was not quoted in the above.

Jim In San Diego said...

Due process is so annoying:

Two sides to an argument is one too many. Then, pesky facts tend to intrude into a convenient narrative. Using those pesky facts to arrive at logical conclusions is just so, well, passe.

Here is a suggestion, to replace due process:

We will tie the accused in a bag, and throw him into a pond. If he floats, he is guilty. If he drowns, he is innocent.

You know, and I know, there are those in responsible positions over our children who would find this procedure just about right.

Jim Peterson

Anonymous said...

KC, and any other blogger following this blog:
Does FIRE (the Foundation for Individual Rights in Education) ever involve itself in these cases of kangaroo "courts" with their biased standards? I would think that this type of case would be exactly the kind where FIRE could be most effective -- in either forcing the university to change its procedures, or in bringing a case where said procedures would be struck down by a court of law.
In fact, a case involving one of these kangaroo "courts" just might go all the way to the Supreme Court. Now, wouldn't that be grand!
But I haven't seen anything about FIRE getting involved.

Gus W.