Monday, January 22, 2007

An Agenda for the General Assembly

The North Carolina General Assembly opens its 2007 session later this week. I would like to think that legislators would learn from the misconduct of Mike Nifong, and consider reforms to address some of the problems in the state’s legal system that the lacrosse case has brought to light.

To that end, here are seven proposals for reform in the 2007 session.

1.) Broaden the Open Discovery law—I.

This idea could be called the “Brian Meehan” amendment. The legislature should ensure that district attorneys don’t learn from Nifong that one way to get around the law is to farm out work to private labs and have them prepare half-baked reports that exclude exculpatory evidence. The legislature, therefore, should amend the law to ensure that it includes all arms of the prosecution, including private labs. Not all defendants will have lawyers as talented as Brad Bannon, who cracked the conspiracy to withhold evidence.

2.) Broaden the Open Discovery law—II.

Though now many months removed, it’s worth remembering the travesty of Sgt. Mark Gottlieb’s “straight-from-memory” notes. Police officers should be required by the legislature to retain their handwritten notes and to include those notes as part of the material turned over to the defense. Judges should have the right to disallow material uncorroborated by personal contemporaneous notes and contradicting the contemporaneous notes of many other officers as a de facto violation of the Open Discovery law.

3.) Grand jury reform—I.

North Carolina should enter the modern era and require transcripts of all grand jury proceedings. Also, the state’s current statute appears to prevent grand jurors from coming forward on their own if they believe that the police or prosecutor has behaved improperly. Surely, at the very least, they should have the right to bring this information to the attention of federal law enforcement officials.

4.) Grand jury reform—II.

Grand juries exist, of course, as a check on prosecutorial misconduct, not to assist it. Yet North Carolina is one of the few states with the odd provision denying defendants the right to a probable cause hearing if the grand jury indicts before an arrest is made. This case showed how easily prosecutors can abuse this loophole to bring and then maintain an indictment when they have little or no evidence. Probable cause isn’t a very high threshold, but it’s clearly more of a check than a grand jury.

5.) Establish a procedure to restrain runaway prosecutors.

Standard 3-2.10 of the ABA’s suggested guidelines suggests:

(a) Procedures should be established by appropriate legislation to the end that the governor or other elected state official is empowered by law to suspend and supersede a local prosecutor upon making a public finding, after reasonable notice and hearing, that the prosecutor is incapable of fulfilling the duties of office.

(b) The governor or other elected official should be empowered by law to substitute special counsel in the place of the local prosecutor in a particular case, or category of cases, upon making a public finding that this is required for the protection of the public interest.

The idea that the only person who can request recusal of an unethical district attorney is the unethical district attorney himself is perverse. Yet North Carolina’s current law establishes such a standard. The state should adopt the ABA guideline, as the Wilmington Star, Nifong's hometown newspaper, recommended last week.

6.) Modify rape law to ensure that actual innocence is a defense.

The relevant section from the North Carolina general statutes is § 15-144.1 of the criminal procedure code, “Essentials of bill for rape.” Its section (a) states the following:

In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.

This provision lays out a minimum standard, stating that (a) grand juries can indict and (b) juries can (not must) convict a defendant in rape cases solely on the basis of the accuser’s claims and her identification of the defendant. In the era before widespread use of DNA, many, if not most, rape cases amounted to the accuser’s word against that of the accused.

Until Nifong abruptly dismissed the rape charges, his defenders argued—perhaps correctly—that a judge could not, as a matter of law, dismiss the rape charges against Reade Seligmann, even though Seligmann could prove, through unimpeachable electronic evidence, he was innocent. What other crime doesn’t allow a judge to dismiss the charges if a defendant can prove he or she is innocent?

It makes no sense that a judge could be legally constrained from dismissing charges against a demonstrably innocent person.

7.) Reconsider the practice of electing judges.

The lacrosse case has featured three judges. Two—Ron Stephens and Kenneth Titus—were responsible to the same electorate that voted Mike Nifong into office. One—Osmond Smith—did not have to go before Durham voters.

Other reasons probably exist why Stephens and Titus issued rulings that seemed so one-sided in favor of the prosecution. But surely the fact that restraining Nifong entailed considerable political risks to their future tenure, while enabling him was the politically safest course to go, did nothing to encourage the judges to act in an impartial manner.

In general, I am deeply skeptical of the practice of electing judges. I’m fully aware that this proposal is a pipe dream: there are too many vested interests—political, personal, bureaucratic—to retaining the status quo.

It would be nice to see something positive come out of this affair, and if the General Assembly could act in constructive ways to make it less likely that any future defendants would have to go through what Reade Seligmann, Collin Finnerty, and Dave Evans experienced, that would be a positive development.


Anonymous said...

Good list, KC. To it I would add reforming the docket system such that the DAs do not have docket control. Place it in the hand of the Courts/Judges, where it belongs.

Anonymous said...

A slightly different subject, but Reliable Sources on CNN (Sunday morning) had a good segment on media coverage of the Duke Lacrosse case. Howard Kurtz is a usually sharp media critic and he and his commentators concluded that most of the media got it wrong. Some outlets corrected course; others did not. It is available on Podcast. Hopefully, KC will get a chance to dissect this one.

Anonymous said...

Judges in the State of Virginia were not elected when I lived there some years ago. I presume they are still appointed and that the system continues to work quite well.

As very few in the electorate have any real knowledge of whom they're electing to the bench, I think the last item on the list is an outstanding proposal.

Anonymous said...

The most amazing thing about the Nifong frame-up case it that it's still alive. The three lacrosse players haven't seen all charges dropped. What a travesty for North Carolina; it speaks to the poor political leadership in the state.

Anonymous said...

Isn't it clear to anyone else that the players are probably going to be convicted once the survivor clarifies her story again to include how she was raped by the 3 players at different times throughout the 4+ years that all three defendants were in Durham (maybe when they visiting the campus as high school recruits), and that the five source of DNA in her rectum were deposited by homeless men during red lights while Ms. Roberts was driving her to the Kroger that night? Don't these boys deserve to pay for the injustices that someone once experience somewhere?

Anonymous said...

"Yet North Carolina is one of the few states with the odd provision denying defendants the right to a probable cause hearing if the grand jury indicts before an arrest is made."

That and his ablity to set a "Spring" trial date were the keys to Nifong railroading the Lax players.

He was futher able to keep it going, because only Nifong could recuse Nifong (I bet money Nifong lawyer told him to recuse himself or find some other lawyer).

I believe that only a very large settlement will convice NC that they need to change the laws.

Remember, as far as bad PR goes, we have yet too get even close to the end, First:

1 - The players will be cleared.
2 - Nifong will be in front of the Bar.
3 - Lawsuits against NC, Nifong, DPD, Duke and others will run for years.
4 - K.C. book will be printed.
5 - A movie will be made.
6 - Students in Law school in NC will study and write about this case.
7 - ADAs, Judges and key persons in this affair will be reminded of what they did not do. Imagine being a ADA in Nifong's office and trying to run for office someday? What did you do to stop the railroading of innocent people? Politics will keep this story alive for decades.

Anonymous said...

Professor Johnson,

I did not see any reference to increasing the punishment for false accusers.

Surely, as a man, you would want to see men's rights protected?

Thank you for your blog, Professor.

Duke Mom

Anonymous said...

JLS says....

Yep gprestonian has it right. It is the docket and scheduling control that should be the number 1 reform the legislature undertakes.

It is just corrupting to the NC criminal justice system that a Judge needs to play ball with a DA or risk trying misdemeanors for the rest of their career. That is the kind of incentive that assures unfairness in trials and unprofessional behavior on the part of the DA that we observed in the courtroom during the settings for this case.

This to me along with given some power to the Governor and AG to remove DAs and or remove cases or classes of cases from a DA are the keys to reigning in NC DAs. Like anyone else the NC DAs will behave better under a better incentive system.

Anonymous said...

Duke mum asks ...

I did not see any reference to increasing the punishment for false accusers.

Surely, as a man, you would want to see men's rights protected?

The victimhood industry is going to howl about the small rape-laws change Johnson already suggested. It would be politically impossible to legislate harsher false accusation penalties or the enforcing of existing ones, because those rare false accusers are actually mentally ill women, don't you know?

Anonymous said...

Excuse my ignorance, but would a lawyer who knows the system well (if you are out there)please explain the docket control system in N.C.? Sorry for having missed this, and thank you.

Anonymous said...

Duke Mom: By all means, push the issue. If it comes from a male legislator, however, the harpies will start screaming. A male won't touch your thoughtful suggestion with a barge pole, even though everyone with any sense knows it is a problem, and should be dealt with harshly. It is politically radioactive material.


Anonymous said...

A speedy-trial statute with real teeth seems very important. Most defendants do not want a speedy trial, but if a defendant wants a prompt trial, he should be able to force the prosecution to put up or shut up.

Anonymous said...

It's called a "Hicks" requirement in Maryland. The Prosecution has 180 days to try someone unless good cause can be shown to extend that perdiod, or the requirement is waived.

That's one of the really awful things at play here. There is no excuse for this case to have dragged on all this time.


Anonymous said...

Oops. "Period" I should say.


Anonymous said...

These are all great suggestions, Professor Johnson. Why won't Attorney General Gonzales begin a federal investigation of this criminal hoax?

Anonymous said...

The feds will not offically start an investigation while the wheels of justice in NC are still turning. From the DOJ point of View:

1 - The players are out on Bail.
2 - Nifong is being investigated by the Bar.
3 - The case has been given to a special prosecutor for review.
4 - The politicians may pass new laws to provide oversite to DAs.

If the state fixes it's own house, the Feds will stay out.

Anonymous said...

oops "oversight"

Anonymous said...

The most glaring deficiency highlighted by this case is the lack of a right by defendants to elect a bench trial in North Carolina. It is one that is bizarre and unusual.

This case could not have proceeded in the fashion it has if there were such a right. Nifong’s strategy all along was to simply get in front of a Durham jury. He had every confidence, apparently with good reason, of getting a conviction no matter what the evidence and therefore being vindicated. This is also why the alleged victim’s supporters are now desperate to prevent the case from being dismissed.

Furthermore, where a judge is finder of fact, his or her verdict, because it is a mixed question of law and fact, is reviewable under the error of law standard by appellate courts and not the no rational finder of fact standard as with a jury verdict.

I will have more to say about this issue in the future.

Anonymous said...

Excellent, as always. But I would ask the readership: are these proposals of a liberal or a conservative nature? They certainly seem liberal to me, and I would imagine that, if enacted, they would help poor blacks more than rich whites.

Unfortunately, the conservative-liberal distinction is muddied by the corrupt relationship between contemporary liberalism and the radical left.

So what is genuine liberalism? To me, it is a philosophy based on a combination of progressive, compassionate, individualism and democratic-republican politics that originated in the Scottish Enlightenment. Today, this kind of liberalism is found on both sides of the US political divide. On the Republican side, moderately conservative liberals contend with those of more theocratic and authoritarian bents. Among the Democrats, left-leaning liberals sell-out liberalism every time a lefty radical taunts them with “racism!” “McCarthyism!” or even “right-wing!”

At any rate, fellow readers, do you think the Duke Disaster could help Democrats realize what foolishness it has been for us to have turned over a huge section of academia (most humanities departments, cultural anthropology, and the various para-disciplinary “-Studies”) to anti-liberal extremists?

Anti-Leftist Lib

Anonymous said...

JLS says......

Anti-left lib:

Most if not all the classical liberals of today are what are generally called conservatives. So I consider Professor Johnson's reforms overall conservative.

They certainly as a group either limit government or use another part of government to be a check on the DA. The call to ammend the rape statute is a limit on government power. Clearly the reform of a probable cause hearing is a limit to governmental power. The other reforms like giving the AG or governor power to remove a DA or a case or class of cases from a DA is more a check on one part of government using another.

BTW, if you really wanted to be an "anti left lib" you should have passed on your gratuitous slap at religious people with your theocratic comments. Authoritarian would have summed up everyone, you would have sounded like someone who respects the individual's right to believe as they see fit and I would not have to point out to you that those with the strongest theocratic bent are far left environmentalist.

Anonymous said...

JLS says....

re: Jason Trompbour

I found the lack of a bench trial option for defendants shocking too. That is another reform that is really needed so an outsider can not be railroaded by a suspicious community.

Anonymous said...

KC... some excellent ideas for change in NC. Unfortunately, I don't see much chance of any legislative action as a result of the Duke case.

The NC legislature has a Democrat majority that maintains power largely due to a large black 'voting block'. If these changes are viewed as being linked to the Duke 3, legislators will be loath to rattle their power base with such an emotionally charged issue at this time.


Anonymous said...

Dear Fellow Posters,

Great suggestions, all.

Glaring dificiencies highlighted by the case (thanks, JT):

1. Creating a tolerant environment for female sociopaths ("CGM"). Let's be honest, sports fans, Ms Mangum would never have risked going to prison for 10 years if there were a sex-crime felony statute for filing false charges.

If you're a sociopath like Precious, WHY NOT bear false witness if it'll get you out of the drunk tank. What most middle class Americans fail to realize is that sociopaths have no remorse. For Precious, putting the boys away for 10 years is just no big deal.

So, it's society's fault for allowing an environment to exist that makes it easy to exploit men. This is certainly something that the Legislature should address.

2. Rape shield laws. Excuse me for being blunt: How strong a case would Nifong be able to present at the outset if photographs of the fat, homely accuser had been made public? Rape shield laws need to be examined from top to bottom.

3. Feckless administrators. Mr and Mrs Dook, Brodhead is your president. He failed to support your boys--for whatever reasons. Which brings up point 4.

4. The antimale and antiwhite bigotry fomented by the Angry Studies departments at Duke had a DEVASTATING effect on the boys' presumption of innocence. I am convinced that the G88's manifesto scared the shit out of Presidente Brodhead. Defund this crap, for God's sake, and Allah's.

Roman Polanski

Anonymous said...

I fail to see why the Grand Jury should be continued at all. I have yet to hear anyone articulate a reason for its continuance. All agree that some sort of judicial check on prosecutorial discretion and a meaningful examination of the evidence to ascertain whether probable cause obtains are necessary; the Grand Jury in its current incarnation does not meet provide that check, all seem to agree to a pretrial probably cause hearing is necessary to ensure fairness. I have yet to hear anyone argue why prosecutors cannot simply charge on information to be followed by a probable cause hearing as is the practice in many jurisdictions, including California. Thus, all legal commentators with justice at heart seem to agree that a probable cause hearing before a neutral magistrate is required to ensure there is some judicial check on the executive, but I do not see those commenters describing what role a Grand Jury would play in such a system. I see none.

Please note that NC does not in practice generally have investigative Grand Juries, which arguably are the only useful kind of Grand Juries with their wide-ranging subpoena powers. So my comments above are directed to the "indicting" kind of Grand Juries which find current practice in North Carolina. It seems rather backwards to me to throw bandaid fixes on a system that no longer has currency in modern legal thinking.

As for the reliance on the statute setting forth the burden of pleading for rape cases, you should note that this statute does not specify the elements of rape, which are left to specific criminal statutes and the case law. This statute is not the problem. This statute just specifies the formalities of what must be plead to give the defendant fair notice of the charges against him/her.

The problem is case law that states that a trial judge does not have the power to assess credibility of the accuser, which is of obvious importance in a rape case involving little or no physical evidence. What you raise is a question with implications far beyond rape cases and that is the role of the trial court with regard to issues of credibility.

The issue of allowing proof of actual innocence is something that the current criminal system is not prepared to deal with in a pretrial setting insofar as proof of actual innocence (as in an alibi) requires the taking of evidence and the assessing of credibility, the provence of the jury. An ethical and neutral DA does not pursue a person with a solid alibi to trial, because doing so would violate the DA's obligation to seek even-handed justice.

The problem this case has exposed is the lack of any brake on the prosecutor's discretion in pursuing criminal cases. I think that a minimal amount of judicial oversite in the form of a probable cause hearing is sufficient to solve the problems exposed by this case. There is nothing inherently wrong with allowing the State to present its case at trial to test whether actual innocence is in fact present. That is the way our system works and has worked throughout our history. If, at the close of the State's case, the evidence shows that the person could not have committed the crime, the case can be dismissed by the judge at that point based on a lack of opportunity for the defendant to have committed the crime. If the alibi depends on the credibility of witnesses, or disputed matters of evidence, then it is proper to let the jury decide that issue. I don't feel that it is appropriate for the Court to abrogate the traditional jury role, either during the trial or before the trial through some pretrial decision.

One would hope this is an unusual case. I am unaware of cases involving Hoaxes being pursued, there is usually at least some evidence that a crime occurred. This case is not unusual in prosecutors committing acts of misconduct, that happens far too often and is well-documented. A right to a timely probable cause hearing is an essential procedure to safeguard the rights of the accused. A statutory speedy trial right is also an essential check on state power.

One very useful area of reform that I have not seen mentioned would be to create laws that adequately protect the public from prosecutors who commit misconduct. Such an effort may be the one lasting good coming from the Nifong case.


Anonymous said...

1:21am Jason Trumpbour:

Excellent comments, Jason, thank you.

"Furthermore, where a judge is finder of fact, his or her verdict, because it is a mixed question of law and fact, is reviewable under the error of law standard by appellate courts and not the no rational finder of fact standard as with a jury verdict."

While true, it would be limited solace for a convicted defendant sitting in prison while he appeals, after having been convicted by a judge beholden to the DA for cases. Think about having a bench trial before Stephens or Titus, 2 of the great enablers of the Hoax.

This case points out the need for comprehensive reform (and no amnesty! ;>)

Anonymous said...

What about some sort of Police Department oversight, they should have a really good reason to change procedure (e.g the line-up).
I am all for Judge appointments, but that too can be wrought with political corruption, who appoints them? Perhaps those appointments should come with term limits !!
Finally, what about protecting the innocent (which includes those accused of a crime), I am all for 1st amendment rights, but death threats, and courtroom threats (Dead man walking) go a little too far. I am guessing that having someone outside your bedroom window with a castrate sign is a little unnerving as well.

Anonymous said...

I seriously doubt many, if any, criminal defendants would opt for a bench trial in a serious matter, whether innocent or not. It only takes one juror to hang the jury (in that most jurisdictions require a unanimous verdict, as does NC). Most would rather take their chances of at least getting one juror on their side rather than take a pot shot with a single judge. Certainly the right to a jury trial is of singular importance in American criminal jurisprudence; there's a reason for that.


Anonymous said...

At 1:54 a.m.:

"2. Rape shield laws. Excuse me for being blunt: How strong a case would Nifong be able to present at the outset if photographs of the fat, homely accuser had been made public? Rape shield laws need to be examined from top to bottom."

Rape shield laws prevent (certain) irrelevant prior sex acts of the accuser from being introduced as evidence.

It's not about making the accuser's name public or the like. That's just kind of a traditional agreement among the big media entities.

Anonymous said...


The DPD already has a line up policy, 4 fillers ( similar to suspect) for ever suspect.

When she failed to pick out anyone, Nifong told the policy due the lineup with no fillers. He was acting as lead investigator, hence one reason why he may be sued.

Anonymous said...

While I was googling to check out some of the Duke 88, I came across a publication with a piece by Karla Holloway.

The publication is called "Chicken Bones: A Journal".

What Holloway has done with the tale of her son Bem is monstrous. She ties him into a book she wrote in 2002 about "black death".

Her version is sanitized and makes him look like a victim.

I mean, you just have to read how insane this woman is. She ties everything to race. It's almost like reading a comedy, then you realize that Duke University hired this petty and self-serving clown.

Wish I could link it. Maybe someone can find it and bring it over. Seriously, you gotta read this. It's a dose of how she teaches, to be sure.

Clearly, her unfortunate son was taught to hate white people by this woman. Yet she speaks of him in objectified terms. As if she had no role in his upbringing. Sorry, 4 years old is not an older child.

These things explain her parallel interest in getting and punishing imaginary "rapists" like the lacrosse players. She is hate-filled and wants to blame others for her own failings. It's a vicarious mission to make whitey pay for what her son did.

Brodhead and others at Duke need to have their heads examined for allowing Holloway to touch this case. She's a volcano and now that her lava continues to flow, the normal people on campus need to move as far away from the G88 as possible.

Anonymous said...

1. Give the power to control the criminal case docket to judges or court administrators, not DA's as under the current system.

2. Allow criminal defendants the option of choosing a bench trial.

3. Enact a speedy trial statute.

4. Any person accusing another person of a felony should be required to sign a sworn statement at the time they make the accusation, and if it is later determined that the accusation was false, that false accusation should be a felony itself.

5. End the ludicrous media "policy" of not identifying adult victims of sex crimes. This is not the 1950's anymore, and sex crimes no longer carry the social stigma they once did.

Anonymous said...


Greater Punishment for FALSE ACCUSERS!

YES! That's Number 1 priority

Anonymous said...

Chicago Sun-Times

Mary Laney ends with:

"I'd be mad as hell if I were one of these parents. I hope they sue everyone involved in this railroading of justice."

Innocent Duke lacrosse players stuck in P.C. nightmare

Anonymous said...

All of these are common sense measures, but the Democrats in North Carolina will never go for this. For all their talk about "justice" for the poor and minorities, Democrats are going to take the road that favors the prosecutors, most of whom are Democrats.

That the present set of policies in North Carolina better enable prosecutors to wrongfully charge and convict the poor and minorities does not matter a whit to such people. Remember, the black community of Durham holds that it is ENTITLED to a conviction. My sense is that the Democrats in the NC legislature think the same way.

Now, I also need to point out that the Republicans have been MIA here. Yes, we have two members of Congress calling for a federal investigation (and one Democrat), but the Republicans generally have shied away from this one.

I hope that some people in that legislature -- members of both parties -- will take a serious look at what has happened. So far, however, nothing has happened that gives me any hope that the powers that be in North Carolina care about anything but CYA.

Anonymous said...

I recently wrote a letter to a NC State Legislator about the Duke case and the need for reform in Raleigh to prevent a travesty like this one from happening again. He replied with a handwritten note on my letter indicating that he too agreed that Mike Nifong had committed numerous abuses of power, but that the "system" seems to be working at the moment. He indicated that he would support any legislation for reform in this matter. The "system" seems to be working comment is where he lost me. The only reason the system is working is that Nifong under pressure by the State Bar recused himself from the case. Therein lies the entire problem. That only a corrupt prosecutor can recuse himself. It would seem that the legislators have a lot of catching up to do in Raleigh on how poorly the "system" really works.

Anonymous said...


I spent many years as a police officer and I witnessed a police officer embarassed on the stand in a Prelim hearing with "just from memory" notes.

It was a DUI case and he remembered exactly what the defendent did, said, and how he acted that night on a 6+month old DUI case. The attorney pulled a two week old DUI warrant and affidavate for the same officer and he couldn't remember a thing that suspect did wrong. He could barely remember the suspects name.

It was truly embarrasing to be a Police Officer that day. Fortunately for us, he was fired soon after for another reason.

I would still be an honest officer if I could afford a family on the pay. That my dear friend is the main reason you get the wrong people in Law Enforcement.

Anonymous said...

I presently am working on an article that deals with the huge costs that the "system" has imposed upon many people. Please tell your legislator friend that the system clearly does NOT work, at least in North Carolina.

Wrongful convictions that later are overturned simply mean that the system forced an innocent person to be imprisoned and abused. That is not "working," unless one holds -- as apparently many people in government believe -- that the purpose of government is to abuse and steal from as many people as possible.

If this legislator were subject to what he and his friends in Raleigh have created, he might change his tune. For now, his comments are despicable, but very predictable, given the state of government in this country.

Anonymous said...

MGM said,
"If these changes are viewed as being linked to the Duke 3, legislators will be loath to rattle their power base with such an emotionally charged issue at this time.

Just damn!
When are you people going to realize that the black vote will never leave the Democrat Party plantation? The democrats in North Carolina can do as they please. Their "power base" is going nowhere.

Anonymous said...

1:41 Amen, well stated.

james conrad said...

re:8:51 never say never, lets not forget it was the republicans who freed the blacks in this country and, the KKK was the terror wing of the democrat party

Anonymous said...

To bad Duke Administration and the Board aren't meeting to see how they can correct errors they made. Alas, they still take the stand they did nothing wrong.

Anonymous said...

Newport said:
"I seriously doubt many, if any, criminal defendants would opt for a bench trial in a serious matter, whether innocent or not. It only takes one juror to hang the jury (in that most jurisdictions require a unanimous verdict, as does NC). Most would rather take their chances of at least getting one juror on their side rather than take a pot shot with a single judge. Certainly the right to a jury trial is of singular importance in American criminal jurisprudence; there's a reason for that."
In Ohio, the defendant can choose a bench trial. In most instances, they choose a jury trial, but the right to a bench trial is exercised. For example, I recall one high profile rape case involving a black basketball player accused of raping a white coed. The defense counsel believed his client would have a better chance with a judge who was less likely to be influenced by racial issues. His client was acquitted by the judge.
The Duke case seems to me to be exactly the type of case to try to a Judge.
One issue that does arise with the right to choose a bench trial is the possibility of coersion from the bench by subtle threats the judge will be harder on the defendant if he chooses a jury trial and is found guilty.
The lack of a speedy trial requirement seems in NC seems to me to be out-of-step with other jurisdictions and needs to be addressed. The judge, not the prosecutor, should be in charge of all docketing issues. Of course, adopting a speedy trial requirement will also require the legislature to fund additional resources to make compliance possible.

Anonymous said...

re: rape shield laws

It seems politically unlikely to me that any retrenchment of the victim protection provisions could be enacted. However, more should be done to protect the rights of the accused, as well as the victim, or as in this case, the alleged victim. Perhaps in addition to protecting the identity of the victim, the identity of the accused should be protected from any public identification, at least until trial begins. I believe this is true for all criminal matters in England. Think about how it might have worked in this case: Nifong would have been unable to play the race and class warfare cards; no press conferences about the team stonewalling, and no re-election issue. I didn’t follow the Kobe Bryant fiasco as closely, but again, I suspect that the loss of a the media spotlight would have encouraged more reasonable and professional behavior on the part of everyone, with less a tendency for a media trial before the facts are known, if only because there is much less of a story without either an identified victim or identified perpetrator. I have always thought that the asymmetric nature of the rape shield laws could lead to serious abuse. Hopefully we will never permit an example more egregious than this one to occur.

Anonymous said...

Important interview with Duke President Brodhead in the Duke Chronicle this AM. Must reading. He offers no regrets and blames Nifong. He justifies the "group of 88,"

Anonymous said...

KC: When do you expect the Attorney General's office to make a statement on their findings? IF the state finds Ninfong and DPD acted in a criminal capacity can the state bring charges against them. (especially since Nifong was acting on behalf of the state of NC)? Do you think Crystal will show for the Feb 5th hearing and I hear investigators and DPD officers were supeoned to show, whom else do you expect to be their. Will you be at the Feb 5 hearing to lend support?

Anonymous said...

This is such an important topic for North Carolina. These reforms stand to benefit the ENTIRE population--how often does that happen? And the most likely direct beneficiaries, of course, are those who have the most interaction with the justice system--the very folks some now argue will be most offended by the reforms. How completely perverse!! If the NC Democrats cannot pull themselves and their constituents together to put into place some of these much needed changes, they will have punted on the most important responsibility of the political process--establishing sound ground rules for protecting the relatively vulnerable citizenry from the illegitimately powerful, the criminal, and the legitimately powerful, the government, and from those all too common individuals who manage to combine both forms of power into the most detestable crime of all--that committed under color of law.


Anonymous said...

Alev said:


I would like to correct a misunderstanding about older adoptive children that applies not only to Holloway, but the many parents who adopt older children from our foster care system or from overseas.
A 4 year old is absolutey an "older child" as it is used in adoption cases. It is very common for children as young as 2 who have had a disruption in caregivers to exhibit severe problems that are uncorrectable even with therapy. The therapy that is available now is much better than what was available when Holloway's son was growing up. I've seen children adopted at age 1 have problems who were adopted into loving homes out of severe cirmcumstances.

Do some older adoptive children thrive? Absolutely. It is a combination of genes (some people are more resilient than others) and how severe the trauma was before adoption. A combination of a rigid temperment plus severe trauma would be nearly impossible for the best of parenting to overcome. What happened to Holloway's son in his first four years of life combined with genetic personality traits is far more likely to be responsible for the outcome than her parenting.

She should certainly be called to account for her actions as they pertain to this case. Her writings and teachings leave room for criticism in fair debate. However, I think that taking shots at her parenting is hitting "below the belt." (And not just her belt. They hit at the many families who adopt older children and find there is not going to be a happy ending. It is a road full of very intense pain.)

Anonymous said...

Alev says:

I had a positive response from both my state representative and my state senator when I wrote to them about these issues. They may have been "placating" me, but I find that most legislators are upfront when they don't agree with you, as in : "Thank you for your thoughts. I'm voting the other way."

For those of us who live in North Carolina, I think that contacting our representatives, and continuing with follow-up calls and letters is critical. If we end up with laws that will make justice more likely for anyone in the future, some good will have come out of this. This case is unique in the way that the light has been shown continuously; it hasn't been that way before, and I expect won't be again. I think we have a window of opportunity for change that won't come again in a long time.

Anonymous said...

Good list, KC.

I believe one of thge best ways to sell it would be to identify the age of each law being replaced/changed.
The public loves for legislative bodies to enact legislation, especially legislation that replaces laws enacted during Jim Crow and segregationist times. They hate "do-nothings".

Anonymous said...

Watch for the Brodhead interview in the Chronicle to be the topic of the next KC post. Brodhead displays himself. His comments on the lacrosse coach are startling. It's as though a mere coach doesn't enjoy the largesse of academic freedom that members of the faculty in the humanities do.

Anonymous said...

I could not even read the whole article, Brodhead is such a disgusting, gutless bastard.

Keep digging Richard - you have almost reached China.

Anonymous said...


Three stories:
Leading Under fire
Brodhead on the record
SNL skit propels lax case

Duke Chronicle

Anonymous said...

JLS -- I agree with your assertion that "the strongest theocratic bent are far left environmentalist." Most religious Americans do indeed accept the basic principles of the Scottish Enlightenment -- but not all. If you doubt that, read Dinesh D'Souza's latest book.

Here's my point, in a different form: if this case is framed as part of the larger struggle between Democrats and Republicans, left and right, liberals and conservatives, then most Democrats, I am sad to say, will rally to the side of the Duke 88 and blame everything on Nifong. As a result, nothing will be done. The country is, after all, fairly evenly divided politically.

If it is instead framed as a mainstream vs. extremist issue, then something significant might happen. I understand the temptation to use the case to denounce all liberals, but I think that it is counter-productive. Please try to fight this battle with the intention of winning rather than just scoring ideological points.

Anonymous said...

Leadership? For years DPD has been targeting Duke students. He failed to insist upon waiting for the facts before over reacting. Many of his Profs (Duke 88) are national laughing stocks.

Who knows what else will come out during the lawsuits.

Anonymous said...

Grads should sue Brodhead for depreciating the value of their degrees.

M. Simon said...


Angry Studies departments

a classic. Wish I had thought of it.

If it is original I'd like to give you credit at least for the first time or two I use it in a piece.

Anonymous said...

Did any others notice that the advertisement on the Duke Chronicle web site is for women's self defense, including Tasers.

I love capitalism. Is NC a right to carry State? Maybe all the co-eds need to petition for the right to carry 9mms. That would redefine listening wouldn't it; staring down the barrel of a 9mm?

Anonymous said...

7:25--Bill Anderson

Why must you always harp on BS platitudes like "Democrats won't do this, Rs won't do that"?

If you make a strong argument for any law that will prevect innocent men from being railroaded by female sociopaths, you're improving the quality of life for all Americans.

Please concentrate on making policy suggestions.


Anonymous said...


Karla "(F)ake (C)redentialed" Holloway deserves the same brand of compassion that this fine educated black sistah shows to others.
Karla Holloway is a cancer who can be compared to no other adoptive mother. Her own words and writings prove that.
Every Duke lacrosse player should sue her azz off.

Anonymous said...

Mr Anderson lost a lot of his credibility with me when he revealed himself as a Waco Wacko.

Anonymous said...

The Waco case involved a number of lies that began with the BATF raid and went through to the re-enactment. James Bovard, who clearly is NOT a wacko, has written much on it. The documentary, "Waco, the Terms of Engagement," which was nominated for an Academy Award, is not wacko, nor were the people interviewed for it.

I would challenge the previous poster to tell me where I am wrong on the Waco case. If you tell me, "The government does not lie," then I shall have to ask: Who is the wacko?

This Duke case precisely is about government lying. Does anyone think that everyone else in the system is honest, but somehow a bad apple like Mike Nifong snuck in? No, we have liars all the way to the top.

This does not mean I am a conspiracy theorist (I always delete the "Bush Administration Planned 9-11" emails), nor do I believe that everyone in government is evil. It is just that in this case, as well as other cases I have researched, I have found many instances of government misconduct and outright lying.

You may not like my saying that, but your disliking it does not make what I am saying untrue.

By the way, Janet Reno concocted a number of child molestation hoaxes while she was AG in Miami. It was her pursuance of those hoaxes that caught Hillary Clinton's attention, with Clinton saying Reno "was good on 'children's' issues." Am I a wacko for saying that Reno was as dishonest as Michael Nifong? Have you researched the Grant Snowden case? The Frank Furster case? Do so, and you will find just how dishonest Reno was as a prosecutor.

Thus, why would I have trouble with believing that Reno lied about Waco. A number of other people lied, too. So, what is your point?

Cedarford said...

Some of the items you propose, KC, should be on hold awaiting the Special Prosecutor's review of the case and their decision to proceed or not.
There is also the matter of Nifong's private "trial" in the Bar Association unfolding.
Otherwise, the Legislature would be second-guessing or taking action on assumptions.

1. I agree that most of the legislative reforms you want make sense. A few, like bringing NC into line with modern states and requiring grand jury transcipts be made and retained, can be debated on their merits regardless of outcome of the Nifong Affair.

2. I believe, though, that most of those laws would be better crafted if they could be guided by the discoveries, actions, conclusions and recommendations of the Special Prosecutors Office, the Bar Association recommendations following their Nifong/ADA proceedings are complete, and a report made to the North Carolina Legislature by defense counsel.

3. To that end, the Legislature should pass a requirement requiring a report from the Special Prosecutor and a resolution requesting the Bar and Defense counsel submit a voluntary report on lessons learned, observations, and recommendations.

4. I would add a few additional items:

a. State law on what shall be the minimum standards for witness ID and lineups.

b. Under what exact procedures may the independent relationship between police and prosecutors be suspended and one party work directly for the other.

c. Review of the adequacy of present penalties for false accusations in all criminal and tort claims. The fines false accusers or claimants should be liable for to reimburse the state's expenses and those of the accused, separate from punitive fines and criminal jail time.

d. To define when state rape shield laws are negated by evidence of false accusation.

e. That the State of North Carolina, through it's elected representative Will of the People (the Legislature) should pass a resolution that the civil rights of all it's citizens, irrespective of race and gender, shall be respected. And make clear that the Governor is empowered to investigate and take corrective measures when abuse of those civil rights occurs by state officials acting under color of law.

I know there is a tendency to create a massive laundry list of "reforms" whenever a clusterfuck occurs be it in private industry or government. I know I have that tendency. It may well be that only 4-5 things really need to change, and if only 1 of such reforms is strictly adhered to, the other 3, 4, or 14 new measures are irrelevant. If a DA conducts his job with strict ethics and integrity, for example. But organizations should always have a safety net...a number of measures that prevent a major mess from happening even if a single new measure fails.
But the fewer the number of changes, the better the odds the critical ones won't get lost in fixation on getting the mass of less important changes done.

It's the same with Duke itself. Dozens of different ideas are out there on "how to fix Duke". Dozens of proposals on how to punish this Duke person or that, wads of silly new "rules" that will bring Duke to new Glory. It may only require a few modest changes...such as code of conduct modifications on how members of the Duke community can attack or criticize other members...Academic free speech is not a blanket pass to start a civil war.

Anonymous said...

The reason I mention Democrats and Republicans is that those are the two parties with people in the legislature. One cannot avoid party politics in legal issues, as much as we would want to separate law and politics.

We see neither party standing up for what is right here. While individuals from both parties have spoken up, the party leadership is quiet. That is all I am saying.

There is a larger issue, however, and that is the nature of political and legal reforms. As we saw in the Duke case, even the Open Discovery Law was not enough to get Nifong to stay within the bounds of the law, and had judges Stephens or Titus still be on the case, none of this would have come out, as both men were covering for Nifong.

Prosecutors simply try to find out new tactics in order to get around legal limits to what they can do. They constantly test new margins to see where they can violate the spirit of the law without violating the letter. That is what Nifong did, and that is what prosecutors do.

I appreciate Alev's comments. He and I have had some correspondence, and more than once he has held my feet to the fire, and done it in the right way.

Anonymous said...

I believe you stated that Reno was responsible for mass murder at Waco, or words to that effect.

While I imagine your research into other Reno matters is probably correct your statements re Waco do, indeed, make you a Waco Wacko.

Obviously this is not directly related to the matter at hand. However you are clearly the #2 authority on D-I-W and I believe, like another poster, that some of your assertions in other areas dimisnish your credibility.

Anonymous said...

This from FODU website:

All friends and supporters of Reade, Collin and Dave, put on your walking shoes! There will be a "Walk of Support" in Durham, on February 4th (Sunday) at 11am. More details here:

Concerned Mothers Walk of Support

Anonymous said...


Can you really defend Janet Reno's Waco?


Anonymous said...

9:55 said, "His comments on the lacrosse coach are startling. It's as though a mere coach doesn't enjoy the largesse of academic freedom that members of the faculty in the humanities do."

As a former staff member in another university, I can assure you that staff members -- and coaches are classified as staff -- most definitely are NOT granted the academic freedom, employment protections, or freedom of speech that are issued to faculty and students. In academia's multi-tiered caste system, staff members in general are considered to be on the bottom level, the servant class.

Anonymous said...

7:25 Bill Anderson:

"That the present set of policies in North Carolina better enable prosecutors to wrongfully charge and convict the poor and minorities does not matter a whit to such people."

Talk about missing the big picture (the Leg and Community leaders, I mean, not you, of course ;>).

I posted links on today's Liestoppers' Media Roundup to those 2 Dallas County articles that I sent to you & KC this AM.

And prefaced the links with this :

For those unfamiliar w/ the situation in Dallas County, there have been 11 exonerated offenders released in the last 5 years, and the 12th is in Court now (having had 2 DNA tests come back negative). While some would counter with the argument that DNA testing wasn't available at the time of most of these Dallas County cases, one should note that had the DukeLAX defence not had the accumen and wherewithal to discover the Meehan/Nifong conspiracy, the lads could easily be sitting in prison for years until an appeals investigation finally discovered it (if ever). We should consider the implications for the 'average' Durham / NC defendant... the NAACP won't.

Anonymous said...

9:20 re "asymmetric nature of rape shield laws lead to abuse"

Great observation. Would you agree that in cases where there is no evidence of rape, as in the Duke case, that both defendant and accuser should be compelled to undergo a polygraph?

re rape shield laws: Can we all agree that, in most cases, an accuser's sexual history is irrelevant? What is elevant? In this case, I would have wanted to know all about this sociopath's "moral history"--eg, has she been proven a liar, made other false accusations, drug user, etc

Cedarford makes a good argument re limiting the number of laws that could naturally emanate from this travesty of justice.

Which begs the question:

What is the best law that could be enacted to prevent future Duke-like travesties?

To me, this is a no-brainer. After the boys are fully exonerated, KC should invite them to this blog so that they can answer posters' questions about the ENORMOUS PSYCHOLOGICAL TRAUMA they've experienced. Yes, they were really raped--by Nifong, Precious, Brodhead, Mangum, Meehan, the lying cop. Society has to learn to appreciate the huge damage lying female sociopaths wreak on men.

Therefore, to prevent this from occurring in the future, the Legislature shall decree that false accusations of any sex crime ARE a sex crime, and a felony. Incarceration for a false accusation should be, at minimum, 10 years. That's the perfect statute--moral, logical, and for the people.

MS--Angry Studies is 1 of my originals. There are 2 aspects of the case I'm willing to document:

1. documenting the making of new laws to protect men from false accusers

2. the collapse of Angry Studies at Duke

9:38--O, you are absolutely correct: laws to protect men will benefit the minority community. A lot of the victims of false reports in Manhattan are male Puerto Ricans.


Chicago said...

Two excellent points have been pointed out that also need to be addressed. A speedy trial, as Maryland mentioned, in say 180 days or less as well as harsh punishment for the false accuser.

Anonymous said...

cedarford 11:13

An excellent proposal.

I would like to add that the opportunities for punishing those who deserve it are clearly abundant through tort law, opportunities which, I daresay, will not be ignored by those that feel they've been injured. Therefore, no new rules or laws are necessary.


Anonymous said...

If laws are not changed to protect men from false accusations, I would recommend every young college male carry a consent form around in his pocket. The PC world has created an all out assault on males and it is evident all the way down the educational ladder into elementary and middle schools. Boys must prove they are good, girls must prove they are bad. A woman of CGM's reputation can sit on a witness stand, point an accusing finger at a young man and even with all that is known in Durham about this woman, someone will believe her. Rape is a serious offense and a serious charge. One making the charge falsely should be punished to the fullest extent of the law. Unfortunately in a backward part of the country, that's not very much.

Anonymous said...

Bill Anderson is spot on here:

"Prosecutors simply try to find out new tactics in order to get around legal limits to what they can do. They constantly test new margins to see where they can violate the spirit of the law without violating the letter. That is what Nifong did, and that is what prosecutors do."

And remember, power protects itself.

A bit off-topic:
Duke Lacrosse Fiasco Linked to Get-Tough Domestic Violence Laws
"D.A. Michael Nifong
withheld DNA test results that would have helped prove the innocence of
three Duke University lacrosse players accused of rape, according to a
recent CBS 60 Minutes story. Now, experts are saying Nifong's aggressive
prosecution can be traced to domestic violence laws such as the Violence
Against Women Act

Anonymous said...

God bless Roman Polanski. A creative voice of reason.

It was also Polanski who was the first person to call President Brodhead a bitch. He has been vindicated.

Duke Mom

Anonymous said...

Brodhead is a victim. Victims make for terrible leadership.

Anonymous said...

KC, you have done a splendid job in outlining what the NC Legislature should be doing to reform the powers given to agents of the state. Every state rep. should have a copy of it. I hope some day you will write another piece on media reform. The media will clearly never police themselves despite their shameful contribution to this hoax.

Anonymous said...

Regarding Waco, here is a most interesting article by James Bovard, who clearly is NOT a wacko:

I have a great deal of respect for Bovard, who has written a number of books on government abuse of citizens. While I doubt this article will change the mind of the poster who calls me a "wacko," I think it will be enlightening to others.

Anonymous said...

Questions for any NC lawyers out there:

How does NC get around the 6th Amendment requirement for a speedy trial? Does bail have anything to do with it? In this case, if the kids could not afford the bail or bail had been denied, they’d be in jail for nearly a year. It would seem that would subject defendants to undue imprisonment.

Could it be that this has simply never been litigated in federal court?

Could the fact that the DA, at the very beginning, said there would be no trial until the following spring, without stating any compelling reason for the delay, become part of any federal suit; specifically that the DA set out to deprive the kids of their 6th amendment right?

By the way, based on timelines in this particular case, it seems that delay has worked for, not against the defendants, so my question is general.

Anonymous said...

Yet another suggestion for reform - require mandatory attendance for all 42(-1) NC DAs at this session:

Duke Law Program Presents 'Trying Cases in the Media: The Role of Prosecutor and the Press'

.5 CLE credits available for those who don't think or say 'No shit!? Hell, I do that all the time when I want to Nifong a perp'.

Curiously, Holloway & Joyner aren't on the panel. (poster at LS said she was orginally, but quit in protest :)

Too bad Freedman couldn't make it, tho...

Anonymous said...

And 9/11 was a government plot, right?

Anonymous said...


If you had read a previous post of mine, I said that I always delete the "Bush Administration Planned 9-11" emails. No, I don't think the Bush Administration planned 9-11.

The proof? The plot worked. Enough said.

Anonymous said...

Alev said:

to Johnsboy

I'm not an attorney, but as I've followed the Duke Lacrosse cas, I've researched some of NC's statutes. I have no idea how the state gets around the US Constitution, but I know what the NC Supreme Court ruled in NC vs. Henry Spivey. Mr. Spivey sat in jail for over 4 years before he was tried. He had to do his own motion about a speedy trial initially; finally, his court-appt. attorneys also submitted a motion.

The excuse for the long delay was that the prosecutors had a back log. Yup. You read it correctly.

Our NC Supreme Court ruled that the 4+ years wait in jail did not constitute lack of a speedy trial. (The guy pleaded guilty to 2nd degree murder when he finally got his trial; he then appealed based on being denied the lack of a speedy trial.) You can find the case online.

Anonymous said...

11:56: "the opportunities for punishing those who deserve it are clearly abundant through tort law. . . ."

You're kidding, right? Let's take a look at how that could play out in this case. Crystal Mangum is named as a defendant in multiple civil suits. A local attorney agrees to defend Ms. Mangum, pro bono, so that he can get his name in the paper. All the plaintiffs take their cases to trial and win multi-million dollar judgments against Ms. Mangum -- for all the obvious reasons. (Alternatively, and more likely, Ms. Mangum fails to respond to the complaints, and default judgments are entered against her). Ms. Mangum, who is undoubtedly judgment-proof, laughs her a$$ off.

You really consider that to be adequate punishment for Ms. Mangum's actions in this case?

Anonymous said...


Good question.

Hope you get a response.

Anonymous said...

Anonymous 1:16 -

Actually, I agreed with cedarford and was talking about Duke admin and faculty, Nifong and police. But you're right, tougher laws for false accusations are called for.


Anonymous said...

A must read is the Brodhead interview 1/22 in the Chronicle. He dodged every question, never answered one straightforward but talked around them. What an abosolute sniveling idiot. His wording is not apologetic, remorseful or truthful but carefully worded to undercut any legal ramifications. Sorry Brodhead, you're about 10 months to late.

Anonymous said...

1:00 Bill A., "proof, the plot worked". Now that is funny...and I've voted for Bush multiple times

Anonymous said...

"...and I've voted for Bush multiple times"

In the same election?

Anonymous said...

I bet most of the G88 Academics in Angry Studies (kudos!) believe 9/11 was a government plot.

Anonymous said...

"...and I've voted for Bush multiple times"

In the same election?

1:45 PM

Well, that is proof that he must live in Durham!! (Except multiple voters there most likely do not vote for Republicans!)

Anonymous said...

1:47 PM

I used to believe in conspiracy theories, then come to find out, they were all invented and spread by the CIA. Because of this, I no longer believe any of them.

Anonymous said...

The following reflects MD practice, Chicago:

"MD Rule 4-271. Trial date.

(a) Trial date in circuit court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events..... On motion of a party, or on the court's initiative, and for good cause shown, the county administrative judge or that judge's designee may grant a change of a circuit court trial date. If a circuit court trial date is changed, any subsequent changes of the trial date may be made only by the county administrative judge or that judge's designee for good cause shown."

Thus, a case as we have here, where the DA does not have a case and embarks on a CYA fishing expedition, is cut short. If the DA has good cause, he can petition the Court accordingly. But the defense can also discover if good cause exists.

Thus, the rights of the State and the Defendant are protected and given voice.


Anonymous said...

Professor Johnson,

You failed to include any mention of proper punishment for false accusers.

Do you have an agenda?

Anonymous said...

Bill Anderson said "Prosecutors simply try to find out new tactics in order to get around legal limits to what they can do. They constantly test new margins to see where they can violate the spirit of the law without violating the letter. That is what Nifong did, and that is what prosecutors do."

Perhaps some prosecutors act this way, but my experience is that most try to comply with the spirit of the law. It is extremely difficult to devise rules of procedure to address every possible tactic of persons who are determined to do what the law prohibits. I don't think it is good policy to make procedural rules so voluminous that they cover every conceivable unethical tactic.
Ultimately, the most effective control against out-of-control government officials are constitutional limits on government authority, the power of voters to chose government officials, the power of free speech to highlight government overreaching and the power of separate branches of government to check the power of other branches. All these are not perfect, but on the whole our legal system is much better than most.

Anonymous said...


Well said. Between you and me, Bill Anderson's opinions are vastly overrated on this site. His recent article about the diversity problems at elite colleges is laughably poorly written, with no research (e.g., there was a brilliant article on this by two brilliant professors, about 4 years ago, in the now-defunct The Public Interest), and no original thought.

Unfortunately, there is a lot of politics on this blog (duh?), and featherweights like Anderson fit in perfectly.

Please, Professor Anderson, take your Waco dialectic to a bar, or perhaps the toilet.

Anonymous said...

"6.) Modify rape law to ensure that actual innocence is a defense."

Actual innocense is a defense to any criminal charge, including rape. The question is who determines actual innocence--a judge or a jury? and at what stage of the proceeding is this determination made? Although many may think it is odd that a judge cannot weigh evidence prior to a trial, this is the way our system has always been all the way back to its common law roots in England. I think you will have a hard time convincing the legal profession or legislatures that we need to tinker with long-established principle of law because of this case of injustice. The old saying, "hard cases make bad law" is applicable.

Anonymous said...

2:38 - A Judge has always had the discretion to dismiss a case for lack of evidence. Contrary to many of the opinions stated here, such an act is not unusual, and every case does not reach the tender mercies of a jury when it lacks evidence.


Anonymous said...

Let us cut to the chase. Nifong is evil.As you have documented.

Anonymous said...

You think this is just about Nifong? He was allowed to moon the justice system with the ready aid of a number of enablers, and a NC justice system that screams for reform.

Sorry, lots of blame to go around here, and it goes way beyond Nifong.


Anonymous said...

2:29 PM
"All these are not perfect, but on the whole our legal system is much better than most."

um...thanks, genius.

Anonymous said...

1:45...I'm not even from Chicago, South Florida, or Duval County...

Anonymous said...

There have been a lot of suggestions posted about how to prevent something like this from happening again.

Which should be highlighted?

Anonymous said...

"A Judge has always had the discretion to dismiss a case for lack of evidence. Contrary to many of the opinions stated here, such an act is not unusual, and every case does not reach the tender mercies of a jury when it lacks evidence."

In a criminal case, a judge cannot dismiss a case for lack of evidence until after the prosecutor presents his case in chief at trial. At the conclusion of the case, if the jury makes a guilty finding, the judge may also set aside the verdict and dismiss the case, if he concludes that no reasonable jurror could make a finding that the defendant was guilty beyond a reasonable doubt.
In criminal cases there is no procedure analogous to a motion for summary judgment in civil cases wherein the case can be dismissed because undisputed evidence requires a judgment for the moving party.

Anonymous said...

3:01 - Wrong. See Federal Rule of Criminal Procedure 12. A Judge can dismiss an action where evidence has been collected in violation of the Constitutional Rights of the Defendant.

Thus, when there is no evidence that can be introduced at Trial, the case gets dismissed.

Anonymous said...

Gosh, since the anonymous 2:37 PM has dissed my writing, I guess I am going to have to quit. On second thought....

By the way, why do you have a hard time believing that there was government misconduct at Waco but believe there is government misconduct in Durham?

Anonymous said...

Which part of Rule 12 are you citing.
Federal Rules of Criminal Procedure Rule 12 (B)(2) states:

(2) Motions That May Be Made Before Trial.

"A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue."

A motion to suppress can be ruled upon without a trial of the general issue (i.e guilt or innocence) and if granted, could result in a voluntary dismissal by the prosecutor because he has not evidence to present. I think,however, the plain reading of the rule is the motions that require a trial of the general issue cannot be addressed on a pre-trial basis. Do you understand the term "trial of the general issue" to mean something other than a trial on the merits.

Anonymous said...

You might think of it as another thing: Judgment of Acquittal.

Evidence, and whether it can be introduced, is always within the sole discretion of the Trial Court. When no evidence can be introduced at Trial, or the Court lacks jurisdiction over the subject matter, the Court can always dismiss a case. It can choose to do so with or without prejudice.

Cedarford said...

Keep in mind the old maxim that bad cases can generate bad law.

The General Legislature should use the Duke case as an indicator that problems exist, that the reputation of North Carolina may be affected, but that they should focus any legal reforms on where NC is an outlier amongst the 48 other states (Louisiana's system is so different and fucked up it shouldn't be included in the discussion).

That would be:

1. DAs controlling court dockets.
2. NC law that defines speedy trial as a year off, if the DA feels like it.
3. No transcript of grand juries, unique law discouraging jurors from even complaining to the court if they feel they were lied to or manipulated.
4. Witness identification processes not defined in actual law like in most states, but as "guidelines".
5. Possibly NC deviates from other state laws preserving independence of police departments from DA direction...

Creating, as I said previously, a long laundry list of legislation to address each and every aspect of the Duke case may be a mistake. Prosecutorial discretion is a good thing if the prosecutor has integrity. Failure of integrity may indeed be best nailed by the Bar.

What should also be debated for sure are the areas of law the Duke Case shows national weakness in.

1. Excessive delay of DNA testing in most criminal and convict appeal cases unless they get "special status and funding" priority like with the Duke case.
2. Ongoing problem of false accusations disrupting the justice system, violating civil rights, costing both defendents and the taxpayers of the state huge sums because the penalties against false accusations and the inclination of prosecuting "such troubled victims of life" are so weak. Nationally, we must do far more with false accusers in criminal, family court, and with torts.
3. National problem that only minorities are now perceived as entitled to protection from civil rights violations. We know from the Duke case that whites need protection from legal lynch mobs as well.

Anonymous said...

What I would like to know when all is said and done and the charges are dismissed, who in the NC State Government (since the state of NC is who is prosecuting these boys)is going to stand up and publically apologize to these young men and their families. Who is going to give them their reputations and good names back. I think it would be appropriate that the legislators (Senators,Congressman and Assemblymen) stand next to these young men and proclaim their innocence in the charges the state brought against them. Looking the other way is as bad as doing the bad deed.

Jerri Lynn Ward, J.D. said...

I don't agree with appointing judges. They get arrogant--like Federal Judges. I think that we do fine in Texas with elected judges.

M. Simon said...

Jerri Lynn,

I think it is elected judges and appointed DAs or appointed judges and elected DAs.

You have to break up some of the cronyism.

Anonymous said...

JLS says...

re: Anon 10:13

Maybe then we can agree that the cause of bringing a broad spectrum of people together on the issue of over reaching prosecutors might be better aided by not make gratuitous slaps at the religious. I am not as religious as many and more of a mainline guy than many, but I am only trying to point out that falling for the current fashion of bashing the religous is not a way to build as broad a support as possible.

Anonymous said...

Unfortunately, we are a country of men, not laws - although deeply flawed agents say from high horses...otherwise.

Please, Felix Frankenhiemer, explain the Innocence Project.