Joyner's Jurisprudence

One of the most troubling aspects of the lacrosse case has been the decision of the state NAACP to adopt positions at odds with a 70 years’ legacy on criminal justice matters, on issues ranging from changes of venue in racially charged cases, to skepticism about suggestive witness lineups, to opposing victims’ rights efforts.

The extent of this transformation becomes particularly stark in examining the legal opinions of Irving Joyner, a law professor at NCCU who the state NAACP designated as “case monitor” on April 19. Until this case, Joyner had a reputation as a civil rights lawyer, suspicious of state power in general and police misconduct in particular. Yet in the last 10 months, he has embraced a pro-prosecution view with the fervency of a convert.

Joyner, traditionally a critic of the Durham Police Department, had represented two African-American men who (unsuccessfully) sued the department in 1995, alleging civil rights violations. In that case, Joyner portrayed the department as too characterized by lingering racial animosities—of the type evidenced last year in the racially charged argument at Blinco’s Restaurant between a black cook and several Durham officers. Mark Gottlieb and Richard Clayton were present at the scene, but were not charged or disciplined in any way.

Joyner also had a record of demanding that the state provide more clear-cut evidence in rape cases. In a 1984 case, North Carolina v. Randolph and Sanders, Joyner represented a black couple accused of carjacking and then raping a woman. Before the North Carolina Supreme Court, Joyner argued for overturning the guilty verdict on the grounds that the prosecution had not provided a bill of particulars. Yet in the lacrosse case, where the timeline was absolutely critical (unlike the Randolph/Sanders case), Joyner appeared to have no problem with Mike Nifong’s denying a bill of particulars.

In a 2006 case, North Carolina v. Mitchell, Joyner appealed a guilty verdict of second-degree rape. His central claim? That a SANE nurse with 32 years’ experience gave a medical opinion at trial. Yet in the lacrosse case, when the Gottlieb notes claimed that SANE nurse-in-training Tara Levicy gave a diagnosis of “blunt force trauma” consistent with rape, Joyner gave the state a pass.

Joyner’s zeal for his clients occasionally produced questionable character judgments. In 2005, he represented Matthew Lawrence Taylor, a black Durham teenager convicted of murdering Sean Owen, a white, gay man who he had met in a chat room and then lured to a remote location by promising a sexual rendezvous. Taylor’s two accomplices wanted to steal Owen’s car, but Taylor went further. At his trial, an accomplice testified that “Taylor pulled the revolver, cocked the hammer and put the gun to Owen’s head . . . Taylor fired. Owen was hit in the head but did not fall.” Each of the three men ran down Owen and kicked him, before Taylor pushed his body into the Eno River.

Before the trial, Joyner publicly dismissed the prosecution’s case as weak; even after conviction, Joyner maintained that Taylor “was not a knowing participant” in the crime and publicly hailed Taylor’s good character. “This was not Mr. Taylor’s character,” Joyner told the Herald-Sun. “He was trying to move on with a good life as best he could,” and erred by displaying “blind loyalty” to his cousin, one of his accomplices in the murder.

In the last several months, this same figure who affirmed Taylor’s good character has joined forces with people such as Cash Michaels, who has repeatedly described a party with drinking and strippers as “perverted,” and NAACP Legal Redress chairman Al McSurely, who published a memorandum of law describing underage drinking as “Crimes and Torts.” Some might wonder about the apparent double standard in character analysis.

Joyner’s suspicion of prosecutors’ intentions was not confined to cases to which he was a party. In the 2002-2003 murder trial of former Durham mayoral candidate Michael Peterson, then-D.A. Jim Hardin was slow to turn over discovery material to the defense. (North Carolina did not have an open discovery law at that point.) Joyner was openly skeptical. He told the N&O, “In a high-profile case like this, I would expect that the DA is getting information in a timely manner . . . Some of it is gamesmanship, but the delay could be because the prosecutor is being overburdened with so many cases. But in a high-profile case like this, that’s unlikely.” He added that the production of evidence “has to be done in a timely manner, or as soon as practically possible.” The defense needed sufficient leeway to develop trial strategy, Joyner said; delay always was harmful.

Yet in interviews about the Nifong-Meehan conspiracy to withhold exculpatory DNA evidence, Joyner adopted a position of “no harm, no foul.” The defense had received the evidence, he suggested to the Herald-Sun in late December; it didn’t matter that Nifong had attempted to conceal it in violation of state law.

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I e-mailed Joyner to ask about the relationship between his case record and his comments in the lacrosse case. He replied, “I hope that you understand and appreciate the fact that I was the attorney who represented the clients in the several cited cases . . . I hope that you see the difference between the different roles that I have assumed as an attorney/advocate in some cases and as a commentator in the Duke-Lacrosse case.”

Joyner failed to say why his comments about the Peterson case conformed to his background as a criminal defense attorney while his lacrosse case commentary has gone so far in the other direction. Moreover, the positions that Joyner took in the cases mentioned above (with the possible exception of his hailing the good character of Matthew Lawrence Taylor) fell in line with the viewpoint of the civil rights movement as a whole on criminal justice matters.

Based on his comments in the lacrosse case, however, it appears that Joyner’s personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas. Some might find it a little . . . unusual . . . that it has taken around three decades as a lawyer for Joyner’s vehement pro-prosecution standpoint to suddenly emerge.

For instance, Joyner aggressively defended Mike Nifong’s involvement in the April 4 lineup, when the district attorney, in his role as supervisor of the investigation, ordered Durham police to violate their own procedures and confine the lineup to suspects. “You would expect the prosecutor to consult with the Police Department,” Joyner told the Herald-Sun in late February. “That is a normal role and function of the district attorney.”

It’s not my impression that it is “a normal role and function of the district attorney” anywhere in the country, even in North Carolina, to order police to violate their procedures. But, Joyner informed me over the summer, this issue needed to be evaluated by a jury, not a judge. “The written procedure which was adopted at some point by the Durham Police Department is not constitutionally required,” he stated. “Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities.” Both the NAACP and ACLU have long supported the basic principles behind the exclusionary rule, which holds that judges should shield from juries evidence obtained through violations of due process.

Joyner’s view of due process and eyewitness identifications also strongly conflicts with that of the Actual Innocence Commission—and also with the position the state NAACP had adopted before March 13, 2006. Carried to its logical conclusion, Joyner’s argument would render irrelevant all written procedures for eyewitness ID’s—prosecutors and police could do whatever they wanted, and the jury could sort it out months later at trial.

I have been unable to find other instances in which Joyner publicly defended a procedurally improper lineup.

Joyner also has vehemently opposed any change of venue. In the summer, he told Sports Illustrated that the district attorney “still has a viable shot at victory before a jury in Durham.” He subsequently explained to me, “The Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina.” Joyner added, “This case originated in Durham and should be tried here.” Carried to its logical conclusion, the Joyner viewpoint would suggest that change of venue motions always must fail; it would be hard to argue for a more polarized community than Durham on this question.

Joyner maintained his position in early January, remarking, “I don’t think that there is any evidence of bias which can be presented of those African-Americans who live in Durham and who might be called for jury service . . . the Durham African-American community has conducted itself in an exemplary manner and is to be commended for the public restraint which it has shown.” Harris Johnson? Chan Hall? Victoria Peterson? The lack of any public rebuke for the racist comments of the former two?

From the start, Joyner expressed confidence in the basic case. In mid-June, the Herald-Sun asked him about revelations by the defense, which included Reade Seligmann’s alibi; the procedurally flawed lineup; Kim Roberts’ statement contradicting the accuser; the lack of DNA; and the accuser’s inconsistent statements. Joyner’s characterization of the defense case? “At this point, I don’t think it’s all that strong. A lot will depend on the fortitude of Mike Nifong and his faith in his case. If he believes in what he is doing, it could go all the way.”

I asked Joyner what he would consider a “strong” defense case; he did not respond to the question. It is worth noting that while he described the defense revelations in the lacrosse case as not “all that strong,” in conversations with reporters, he was very confident in the strength of the defense case in the Matthew Taylor murder trial. But, as he suggested, at that point he was an attorney of record, and therefore the analysis he offered to reporters could not be taken at face value. Since, in this case, he is working on behalf of the NAACP, it is unclear why his analysis of the defense case was entitled to any greater consideration.

Even to the end, Joyner has tried to get the case to trial. Almost alone among observers, he contended that the dropping of rape charges made it more likely to get convictions: “The prosecution has tightened up the case rather than diminish [it] because it’s a lot easier to prove sexual offense charges than it is to prove rape.” In theory, perhaps. In this case, the dropping of the rape charge was necessitated by the accuser making up a wholly new story, one that contradicted every other version she had told.

Moreover, Joyner has done what he can to repay Nifong now that the disgraced D.A. is besieged. He dismissed the complaint filed by Beth Brewer: “What they will have to present is evidence of malfeasance—more than just a personal disagreement, a disagreement with legal strategy, which is within the province of the district attorney. I’ve not seen anything that would warrant a judge doing that.” The state bar’s ethics charges claimed that Nifong broke three laws in handling the lacrosse case. Most people would consider such a record “evidence of malfeasance.”

As the lacrosse case perhaps nears an end, it will be interesting to see if Joyner maintains his newly found disdain for procedure in other cases that cross his path. Historians should not speculate on the future: but if I had to guess, I would predict that Joyner’s pro-prosecution ardor will suddenly cool if or when charges in the lacrosse case are dismissed.