tag:blogger.com,1999:blog-32542246.post564641075396251324..comments2024-02-24T05:19:10.949-05:00Comments on Durham-in-Wonderland: How "Separate-but-Equal" Justice Workskcjohnson9http://www.blogger.com/profile/09625813296986996867noreply@blogger.comBlogger85125tag:blogger.com,1999:blog-32542246.post-23726499621836304112007-07-03T04:29:00.000-04:002007-07-03T04:29:00.000-04:00Hello. I love your blog, it is very nice. You can ...Hello. I love your blog, it is very nice. You can see pictures of me on <B>http://nudecharm.net</B> - See you soon baby ;)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-90262078201320541052006-12-07T20:28:00.000-05:002006-12-07T20:28:00.000-05:00To 1:58 PM,
I am not suggesting that the LAX play...To 1:58 PM,<br /><br />I am not suggesting that the LAX players deserve to be charged with rape just because they held rowdy parties. Professor Johnson has pointed out several times that the Durham police have arrested Duke students for very minor violations like noise and open container violations more than they have arrested other Durham residents for those kinds of violations. Typically, a resident of Durham who was not a Duke student would simply get a citation for this kind of violation, not an arrest. I am responding by pointing out that there was a long history here in which the students were asked to tone down their rowdy parties and refused to do so, and this explains why the police started arresting them.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-91058384541274499832006-12-07T13:58:00.000-05:002006-12-07T13:58:00.000-05:0012:37,
I might consider agreeing with you if Nifon...12:37,<br />I might consider agreeing with you if Nifong had dropped the charges once the first DNA results came back. All the prior behavior should have justified was a higher level of suspicion. Once real evidence was available to judge accusation vs. denial, to contnue meant that justice was perverted for the sake of polical gain. <br /><br />Alleva and Brodhead tried to point out that forfeiture of two games for the drinking behavior was a serious penalty, but no one listened to them on that part of it. You could argue thay brought the forfeits on themselves, you could argue they brought the initial suspcions on themselve, but it is beyond mean to suggest they brought these prosecutions on themselves.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-10229349279214212672006-12-07T12:37:00.000-05:002006-12-07T12:37:00.000-05:00To Professor Johnson:
I suppose the reason why th...To Professor Johnson:<br /><br />I suppose the reason why the Durham police arrested a disproportionate number of Duke students for noise and open container violations is because the lacrosse players and other Duke students who lived in Trinity Park had been throwing rowdy drunken parties for years, the neighbors and police had been asking them to tone it down for years, they had arrogantly refused to do so, so the neighbors and the police finally got fed up and decided to take strong action. If the lacrosse players and the other students had been more considerate of their neighbors, none of them ever would have been arrested. You blame all of this on the police, but I would blame it on the students.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-51366717308045436022006-12-06T19:05:00.000-05:002006-12-06T19:05:00.000-05:0010:57 - I think you are correct in writing that wh...10:57 - I think you are correct in writing that white people are tired of the blacks sense of entitlement, crime stats, ebonics, etc. I know I am and I helped in the good fight for civil rights most of my life.<br /><br />5:40PM - drinking alcohol for twelve hours in no way assists men in starting or completing a sex act.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-17388061129866031502006-12-06T17:28:00.000-05:002006-12-06T17:28:00.000-05:00To 5:40pm
You don't have any idea what you are ta...To 5:40pm<br /><br />You don't have any idea what you are talking about. Reade Seligmann was playing golf for 5 hours prior to that party. He hadn't been drinking for 12 hours. I know you have no interest in facts obviously.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-30676561363739431752006-12-06T14:56:00.000-05:002006-12-06T14:56:00.000-05:00To huesofblue:
Yes, I am a professor, but do not ...To huesofblue:<br /><br />Yes, I am a professor, but do not worry. You make a good argument and, if you had not told us you only had one year of law school, I would not have guessed it.<br /><br />You are absolutely right that the rational basis test is an extremely low standard and that it is rare to come across a law or policy that is irrational on its face or that cannot be rationalized in some way. I just think a strong argument can be made that DPD’s policy is one of those rare instances. The fact that the victims of offenses committed by Duke students have a greater personal animus toward them is not a rational basis. The best argument I can see would be that preserving the tax base in Trinity Park is a higher priority for the city government than in the areas around NCCU. However, the policy does not apply to all offenders committing similar acts in Trinity Park. Instead, it applies to Duke students and it is not even clear that there is a geographic limit on its application. <br /><br />The Due Process problem is even more pronounced. By its own terms, the policy is penal in nature. It does not attempt to fit itself within any recognized acceptable use of the arrest power, i.e. ensuring appearance at trial, abating present criminal activity or protecting the public or the arrestee, his or herself, from some immediate harm posed by the arrestee. The right to liberty is a core interest protected under the Fifth and Fourteenth Amendments. Irrespective of the substantive offenses involved, the policy essentially allows officers to act like Judge Dredd from the 2000 A.D. comics and arrest, judge and sentence Duke students on the spot for the crime of being Duke students. One can only be deprived of liberty by due process of law, which requires a criminal conviction. Many of these students end up being acquitted. If being a Duke student is an aggravating factor for a given offense, that is something that must be determined by a judge.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-10106734544071086192006-12-06T14:51:00.000-05:002006-12-06T14:51:00.000-05:00I went to the gender/race/power website, and was n...I went to the gender/race/power website, and was not surprised at what I read. Basically, this is a woman who is filled with hatred for people who are different than she is.<br /><br />The problem occurs when these twisted opinions become part of law. What she demands is that the law throw any man in prison who is accused of rape, no matter what the evidence might be. For example, if I were in California on a Wednesday, but a woman here swore that I raped her in this place on that same day, it would not matter if I could prove that I was in California. She claimed rape that day; that settles it.<br /><br />In other words, we dispense with a trial, since the woman is never wrong in her charges and in her identification. I mean, why go through the pretense of a legal trial when we already know the TRUTH?<br /><br />Unfortunately, the law no longer regards people like this as cranks. They are taken seriously, and it is because of people like her that men are falsely accused and imprisoned on bogus rape charges. No doubt, she also would support the child molestation witch hunts.<br /><br />This woman is the kind of model student turned out by faculty members like those in the Gang of 88. There no longer is Truth; there only is power, according to these people, and they want power and will do anything to get it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-60440450065235622072006-12-06T12:27:00.000-05:002006-12-06T12:27:00.000-05:00The link I gave to Ms. Carrington blog did not wor...The link I gave to Ms. Carrington blog did not work. It was just to provide the reference point for the quote, and if you really need it her site is http://www.genderracepower.blogspot.com<br /><br />and the comment is in the comment section after her blog entry of October 14, 2006.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-4160725365920931452006-12-06T10:01:00.000-05:002006-12-06T10:01:00.000-05:00I call the 5:40 poster the "you people" poster, si...I call the 5:40 poster the "you people" poster, since she repeatedly refers to us with that. Other posters have repeatedly challenged her to refer to evidence and she doesn't. Based on similarities of writing styles and viewpoints, I believe she is Y. Carrington of the blog "genderracepower". I tried surfing to find "feminist" webstite ranting on the case, after Prof. Anderson's post on feminists. I found a couple which gave up on the Duke case under the weight of evidence. But I did find Carrington's, which contained the following comment of hers on 10/24/06:<br /><br />"As for the accuser, I choose to believer her. I mean that. Women who say they are raped need to be believed, period. No conditions placed or questions asked." <br /><br /><br />http://genderracepower.blogspot.co/2006/10/duke-lacrosse-boys-on-60-minutes.html<br /><br />Ms. Carrington says she's from Raleigh, a writer and an activist.<br /><br />My own view of "true" feminists is that they are or would be appalled at fabricated accusations because of the damage it does to reporting real rapes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-84823318428993944112006-12-06T09:35:00.000-05:002006-12-06T09:35:00.000-05:00All right. I admit I am stretching, but I am not w...All right. I admit I am stretching, but I am not willing to concede completely on the equal protection issue. Caveat: my knowledge of con law is also limited to law school many years ago and a superficial reading of what has happened in more recent years. First, I still believe the DPD policy is a violation of the Equal Protection Clause. The clause states "nor shall any State...deny to any person within its jurisdiction the equal protection of the laws." <br />This is understood to forbid invidious disparate treatment of similarly situated individuals or stated differently this clause requires that similarly situated persons be treated similarly with respect to laws and policies. The Supreme Court limits what it is willing to enforce with its varying standards of scrutiny, but whether or not it's willing to enforce the clause for this particular situation is a different question to me than whether the DPD policy violated the clause. I believe the policy DID violate the clause--it was a policy of treating similarly situated individuals completely differently.<br /><br /><br />Second, as for the standard of scrutiny, I believe the Supreme Court has moved closer to a sliding scale of scrutiny in recent years with Baker and Lawrence. Baker (the Michigan affirmative action case)concerns different treatment based on race, but it doesn't really get strict scrutiny and Lawrence is supposed to be rational basis, but the Court doesn't really use that either. So, I maintain the Supreme Court is capable of surprises and is continually refining its use of the Equal Protection clause. Somehow I suspect that if this policy had been directed at<br />NCCU students, the Court might very well find the policy violates Equal Protection. In a country where Caucasians will eventually lose majority status, the Court may need to think more broadly about who gets to avail themselves of the protection of the Equal Protection clause and why. <br /><br />And finally because the DPD policy is fundamentally unfair and discriminatory, if Equal Protection and Due Process arguments failed (as per Jason Trumpdour's argument) I would turn in desparation to the Commerce Clause. I seem to remember almost anything could come under its umbrella. I believe the DPD policy creates an undue burden on commerce by discriminating against out of state students who want to spend their education dollars in <br />Durham, North Carolina. Yes, I am joking... but not completely. <br /><br />And, yes 7:22, someone who had experienced this discriminatory policy would have to file a lawsuit against the <br />DPD before any court would look at it. But having such a policy makes the DPD and Durham look bad and should make college applicants aware they may not be as welcome as they might want to be in <br />Durham. <br /><br />ObserverAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-78533115065856605552006-12-06T09:33:00.000-05:002006-12-06T09:33:00.000-05:00Yes, presumably someone would have to challenge th...Yes, presumably someone would have to challenge the different treatment in some way--through a complaint, or by raising the issue in a court proceeding on a charge against the Duke student. One aspect no one has mentioned so far that might also go in to the rational basis calculation is the fact that many of these arrests have been in Trinity Park, a neighborhood where the neighbors have frequently complained about noise and rowdy behavior by students. Perhaps NCCU students don't congregate in particular neighborhoods, or if they do the neighbors are less vocal. I'm not saying it's fair, but it seems to me the police might be able to argue that the higher level of neighborhood unhappiness is a rational basis for the disparate treatment.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-77528063599333489182006-12-06T09:21:00.000-05:002006-12-06T09:21:00.000-05:00As a reference, I'm 5:56 and 7:04. As for the dis...As a reference, I'm 5:56 and 7:04. As for the discussion, I'm still confident thatm if rational basis applies (which it does unless there's a fundamental right being infringed), the DPD's policy is constitutional. If the goal of the policy is to "prevent crime", and the characteristic is "Duke students", then the DPD need only show that Duke students commit crimes. Under rational basis, the court doesn't look to the motives or intent of the government, and, after RR Retirement Board v. Fritz, simply needs to be able to come up with ONE rational reason for the policy, even if the government can't do so. There are outlier cases that seem to look into the motives of the government (Romer v. Evans being the big one), however no one really knows what these stand for, and the plaintiffs in Romer were slightly more sympathic as a class than Duke students (fair or not). <br /><br />Finally, Lawrence was, by and large, a heightened scrutiny case. "Rational basis" may be claimed, but that's because the majority probably couldn't get 5 votes if they wrote precedent that gave strict scrutiny protection to sexual activity. As such they watered down the language, but still applied the test.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-54270059450332448622006-12-06T07:22:00.000-05:002006-12-06T07:22:00.000-05:00Isn't the whole subject of the legality of targeti...Isn't the whole subject of the legality of targeting duke students a moot point if none of them files a complaint? (Or has one filed a complaint?) Isn't a complaint required before the legality of the police actions will be tested?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-71520725379510039972006-12-06T05:53:00.000-05:002006-12-06T05:53:00.000-05:00I should have used quotes:
"I'm the 6:34 poster a...I should have used quotes:<br /><br />"I'm the 6:34 poster and I'm a law student. Thanks to 5:56, 7:04 and 7:15 for weighing in on the legal issues. Very interesting." <br /><br />You are also right.<br /><br />But, Duke and John Burness do not seem to care.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-17118485224131854322006-12-06T05:44:00.000-05:002006-12-06T05:44:00.000-05:00I'm the 6:34 poster and I'm a law student. Thanks ...I'm the 6:34 poster and I'm a law student. Thanks to 5:56, 7:04 and 7:15 for weighing in on the legal issues. Very interesting. <br /><br />You are also right.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-23564973634775286032006-12-06T01:42:00.000-05:002006-12-06T01:42:00.000-05:00Jason,
I didn't realize you were a law professor...Jason, <br /><br />I didn't realize you were a law professor. My knowledge of con law is limited to two semesters as a student, so I'm happy to defer to your superior knowledge. <br /><br />But my impression of the DPD policy is still that most courts would find a rational basis. Wouldn’t it be enough for the DPD to say that 80% (an arbitrary number) of Duke students have a permanent residence outside of Durham and are therefore less likely to show up for court? Or maybe that students at a private college are more likely to have good fake IDs that might warrant arrest and fingerprinting at the station?<br /><br />I might be wrong, but I feel like con law is filled with similarly weak arguments that the courts find persuasive. Likewise, I didn’t think the state needed much in the way of evidence if its suppositions were in any way feasible. <br /><br />I’d be interested in your thoughts.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-62456464066847093072006-12-06T00:52:00.000-05:002006-12-06T00:52:00.000-05:00Thanks to Prof. Trumpbour and Observer for the inp...Thanks to Prof. Trumpbour and Observer for the input. The idea of giving Duke students harsher punishment simply because they attend Duke seems fundamentally unfair. All the arguments have been interesting to read. I hope this is one departmental policy that would fail the rational basis test.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-14248653034816889832006-12-06T00:06:00.000-05:002006-12-06T00:06:00.000-05:00Jason and Observer,
Your arguments are valid. B...Jason and Observer, <br /><br />Your arguments are valid. But I just don't think that's the way rational basis works in practice. To call it a rubber stamp doesn't strike me as that far off. As one law school website explains: <br /><br />"The traditional rational basis test, as applied in cases such as Williamson v Lee Optical, is extremely deferential--some would call it a total abdication of judicial responsibility. Under this traditional test, a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state. Moreover, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation. It is enough if the interest is now advanced and that it is "conceivable." If attorneys for the state lack the creativity to come up with a conceivable interest, some justices are willing to help out and supply one themselves."<br /><br />http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rationalbasiswbite.htm<br /><br />[Note: Observer is correct that the Texas sodomy law was struck down on "rational basis" review, but even Justice O'Conner recognized that the Court was actually applying a higher level of scrutiny. Commentators have dubbed this "rational basis with bite", but the Supreme Court has only really applied this standard to classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens. University students aren't likely to receive this sort of special treatment.]Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-69828792048413028512006-12-05T22:31:00.000-05:002006-12-05T22:31:00.000-05:00I am with you on this, Jason. I cannot think of a ...I am with you on this, Jason. I cannot think of a rational basis for the policy. My understanding is that "rational basis" is not entirely a rubber stamp--there has to be some reason to support it. If we think about the Lawrence sodomy case where the Supreme Court used rational basis to strike down Texas sodomy laws that applied to homosexual acts but not heterosexual acts, how can we argue there is a rational basis for arresting and possibly jailing (which entails some risk to the student) noisy underage Duke drinkers but merely writing a citation for the NCCU student or the drunk underage Durham resident? <br /><br />ObserverAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-88210025490408552412006-12-05T22:11:00.000-05:002006-12-05T22:11:00.000-05:00Kemper,
Happy to see Judge Osmond Smith's WFU Deac...Kemper,<br />Happy to see Judge Osmond Smith's WFU Deacs win the ACC title game Saturday. Hopefully he was able to attend. Have to believe you know what you're talking about in the Duke Lacrosse case concerning Liefong(typical Tarhole waste of taxpayer money,including the recent football hire). I too do not believe the case will ever go to trial and Liefong will ever face any serious reprimands. He will say my health is felling me now, in relation to his previous prostate cancer. He is not a very appreciative cancer survivor! And he also has "Precious" that he can say lied to him.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-19801584819355625232006-12-05T22:05:00.000-05:002006-12-05T22:05:00.000-05:00I do not believe that the DPD policy of targeting ...I do not believe that the DPD policy of targeting Duke students for special treatment by encouraging arrest rather than citation for minor infractions can pass the rational basis test. First, I do not think there is a rational basis for distinguishing one set of college students from another. Second, the reason given, that Duke students are scofflaws, does not afford a basis either. People who commit quality of life crimes are pretty much, by definition, scofflaws. Huesofblue cited targeting of celebrities by the IRS. That is a different situation because the IRS has limited resources for enforcement and, therefore, maximizing the effect of those resources through selective investigation and enforcement is a legitimate consideration for Equal Protection purposes.<br /><br />The larger problem is the nature of the arrest power and the use to which DPD is putting it. The purpose of arrest is to ensure that those accused of a crime show up in court. Those taken into custody can obtain release by giving sureties for appearance at trial. The purpose is not to punish. Therefore, the only grounds upon which a policy of encouraging arrests rather than citations can be rationally justified is if Duke students are less likely to show up for trial than any other citizens of Durham. The DPD policy makes no reference to any such concern. Indeed, I suspect Duke students are more likely to show up for trial than most. Instead, by its own terms, the policy is designed to punish and intimidate Duke students. As such, it has no rational basis for Equal Protection purposes. Furthermore, because the policy is designed to punish individuals who have not been found guilty of a crime by a court of law, it is also a violation of their right to Due Process.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-69834090929416487712006-12-05T21:50:00.000-05:002006-12-05T21:50:00.000-05:00WINDBAG:
I concur. I had a piece on Lew Rockwell...WINDBAG:<br /><br />I concur. I had a piece on Lew Rockwell's page a while back entitled, "The NAACP and Jim Crow Justice," and made many of the same points.<br /><br />Mob rule gives us mob "justice."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-55352923699035780912006-12-05T21:34:00.000-05:002006-12-05T21:34:00.000-05:00I'm not sure if 5:40 is trying to get a rise out o...I'm not sure if 5:40 is trying to get a rise out of some of us on this board, but it might as well be one of the gang of 88 or any other "civil rights" activist. <br /><br />The whole idea of people like 5:40 is to shift the conversation from the specifics of this case, ie the evidence and lack of it, to name calling - racist etc.<br /><br />It figures. Without any facts there is no reason to argue whether a rape occurred. Everyone, and I mean everyone, knows that a rape did not occur. But 5:40 does have the black community from which to draw a jury. And that is the most critical part of this issue and one that stacks up in his/her favor.<br /><br />And it is this last point where I must respectfully say that Prof. Anderson is decidedly wrong in his assertion that this case is about the power of a prosecutor in NC. While that has been a sad side note to this episode, the real issue here is race and the impossibility of a jury system (and for that matter a political or social system) built upon a mulicultural society that places the interests of certain groups over truth and the individual.<br /><br />Surely, Nifong has too much power as a prosecutor, but he has shown his willingness to bend to community pressure. Further, and more importantly, had the community shown the slightest bit of respect for fairness, due process and the presumption of innocence, Nifong would have been defeated in the election. He would have been stripped of any power he had as a prosecutor. <br /><br />Instead, I must respectfully say that Mike Nifong understands this case better than Prof. Anderson. Nifong understands that his power as a prosecutor depends on his manipulation of the black vote in Durham. Nifong's appeal to the lust for power that blacks feel in Durham is the answer to this case (and to the OJ case and to the continued power of Jesse Jackson, Al Sharpton, NAACP etc). <br /><br />I urgue Prof Anderson to rethink his analysis of this issue. Anderson has made a strong point that NC prosecutors have too much power. He is correct that in a system of checks and balances, the Gov or AG should have stepped in now. But he ignores the vote of early Nov when the voters could have trumped the power of the prosecutor if they had believed that he had abused the power he was entrusted with. Instead, Durham kept him. They liked the way he pressed the black issue and I'm afraid there is more of this to come . . . whether prosecutors have too much power or not.<br /><br />WINDBAGAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-32542246.post-9167287041635537922006-12-05T21:15:00.000-05:002006-12-05T21:15:00.000-05:00Kemper,
I do hope you are right. If you are, bel...Kemper,<br /><br />I do hope you are right. If you are, believe me, it will be an important day for justice. Right now, prosecutors get away with just about everything. It would be wonderful to see Nifong having to face the consequences of his own actions.<br /><br />As for 5:40, from what I gather, these guys were not drinking for 12 hours straight. But I also love it that 5:40 claims there was a rape with no evidence.Anonymousnoreply@blogger.com