Wednesday, August 23, 2006

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.


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.


Anonymous said...

When prosecutors do what Nifong has done, they deserve to be disbarred, not outrage

Anonymous said...

Isn't what Nifong has done a crime?

Anonymous said...

Is that the best a great moral titan can do, where there is a lynching being conducted right on his very doorstep?

Elie Wiesel said, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

Chemerinsky can't even do that much.

Anonymous said...

I'm surprised, and more than a little disappointed, that "[b]y his own admission, Chemerinsky has not followed the lacrosse case closely."


Anonymous said...

I did a search on the North Carolina ACLU website, and could find no mention at all of the Duke case.

Daniel Bowes, student head of the ACLU at Duke is quoted on Durham in Wonderland as writing:

"As the initial facts concerning the case became clear, it was obvious to the ACLU @ DUKE's members that what D.A. Nifong was doing was unethical, inappropriate, and illegal."

Has the NC ACLU made any public commentary on the case? Their Duke chapter is saying that an illegal and unethical prosecution is taking place in their state.

My understanding is that Professor Chemerinsky sits on the board of the NC ACLU. What does the NC ACLU have to say about about the head of their Duke chapter's comments?

Anonymous said...

I'm not from North Carolina, and have only been to your lovely state a couple of times for visits. My most memorable experience was a visit many years ago to the Biltmore Estate, which is at least as beautiful and majestic as advertised.

Professor Chemerinsky is a very high-ranking professor at one of the foremost institutions of higher learning in the world. He is also considered one of the 20 most brilliant legal minds alive today and someone who is reputed to be on the short list to join the Supreme Court of the United States should a Democrat win the presidency in 2008. In addition, he sits on the board of the North Carolina ACLU and frequently argues appellate cases, and has the full realm of responsibilities and duties of a professor. In short, while he is an indisputably brilliant man, I doubt he even remembers the definition of the term "free time," nor would know what to do should he be confronted with it. That said, I doubt he would find such monomania to be a productive use of his time.

On those notes, I have some thoughts for you to consider: Should he become a Justice of the SCOTUS after having made specific statements on this case, he would be required to recuse himself should this case or the eventual lawsuit by the accuded end up before him. Second, while he does have obligations to the ACLU, his more immediate concerns are his responsibility as an attorney to his clients and as a professor. Third, he is fairly new to the Durham area. Finally, I doubt he gained his numerous awards and accolades by speaking before he had all of the facts available. Wasn't that, combined with Nifong's cynical effort to preserve his job by abusing his power in a particularly egregious manner, what caused this mess in the first place?

Anonymous said...

Chemerinsky is actualy not as highly regarded as you claim. He's a very smart professor, but he's considered a very prolific drudge more than a path-breaking scholar. He's certainly not considered one of the top 20 legal minds.

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