Comments and analysis about the Duke/Nifong case (2006-2014).
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52 comments:
Very good one, Bill!
Well, I've told them everytime they've called that I'll donate again the day I hear Brodhead has resigned, so it definitely affected their fund-raising from me!
Everytime they call me I say that I will no longer support them, and when they ask "why" and I say "the lacrosse case" they immediately say something to the effect "I understand, Thank you for your time" and quickly hang up (unlike their usual probing when you give another reason). Maybe they have a rule that they have to attribute the refusal only if you say some magic word like "unconsionable" or something.
"If the court system is good enough for us, why is it not good enough for the people who are in charge of that system?"
Well, to twist Bill's words a bit, the court system really is not very good for us either. I think one of the reasons for justifying immunity that is never spoken aloud is that some of the criminal courts would be officially exposed for what they are - sloppy, inconsistent and woefully ineffective - even if not corrupt.
But when my blood starts to boil from something like the Nifong & company fraud, I worry less about a particular court grinding to a halt and think more of giving the officers of the court some of their own medicine.
In any case, this particular case reaffirms my conviction that I don't want to be found 100 miles from places like Durham whether they have immunity or not - a sentiment I share with Bill, I believe.
RELIGION and IMMUNITY
Professor Anderson said...
... governments confer immunity upon those privileged to work in the police and "justice" systems.
::
Government also confers certain freedoms and immunity on religious organization who can and do exercise their religious rights. Surely,Mr. Nifong has said or is going to say he was protecting Duke in-so-far as he believed that Duke ...a religious organization...was taking action and making statements based on their religious doctrine.
Remember the Castrate March after the party which took place at a address - a dwelling - owned by Duke University? And the banner that said...GIVE THEM EQUAL MEASURE? That is a biblical reference to Matthew 7:2 and Mark 4:24. And also, remember the Chapel service on Duke's campus where the Chaplain was speaking about religious intolerance of 'certain' behavior at parties?
We have seen the 'race' and 'gender' card played over and over and I keep waiting for someone to play the 'religion' card in hopes that everyone runs for cover?
The United Methodist Church is looking to score a 'win' for religious freedom which will then sweep across all Methodist affiliated Universities and Colleges in the United States. And there are many such institutions. One hundred and eleven (111) to be precise.
http://www.educationhq.org/colleges-religious/71.php
::
GP
I give my money to the Iron Dukes for lacrosse scholarships. The fund for Trinity gets $1.00.
At first glance the Chronicle poster making remarks like "Brodhead got rid of that clown of a lacrosse coach" seems ill-informed and narrow minded.
Upon reflection, I now lean towards internet troll as being a more appropriate conclusion.
WRAL has a program on Saturday evening called "Headline Saturday" with the N&O's John Drescher and WRAL's David Crabtree.
Roy Cooper will most likely show up there.
He's supposed to talk about the lacrosse case.
Perhaps the website will have something about it soon.
I'm another Duke Alumna who, when being solicited for donations, told them on the phone, and also mailed back my envelope with the statement, "Call me back when Brodhead and Steele are gone."
Unfortunately, I do not think that the BOT at Duke are the least bit interested in the long term ramifications of this Lacrosse case and the toll it is taking and will continue to take at the University.
It is my opinion that the BOT find it a nice little perk to their social standing to be known as a member of the BOT at Duke. And of course they are expected to make hefty donations.
But as for really truly caring about the future of education at Duke University, I see absolutely no evidence of that.
Otherwise, they would be cleaning house of the vultures who still hoover to pick the carcasses clean.
Not a dime until Steel and Brohead are gone. And it would help if they took a good number of the Gang of 88 with them.
But then, is anybody who has any say so really listening?
This might cause me be viewed as somewhat of a heretic on this DIW comment forum, but I respectfully and vehemently disagree with Bill Anderson’s call for “ending the practice of civil suit absolute immunity for prosecutorial behavior.” While all of us agree that a great injustice was done in this case, focusing only on this case and a few other dramatic instances of prosecutorial misconduct can also cause us to lose sight of a very real truth of this case; Nifong’s behavior was an anomaly and not the rule in criminal prosecution. And during this case, there were other wrongs committed that bolstered and abetted Nifong’s illegal behavior that had nothing to do with prosecutorial misconduct.
Calling for an end to legal immunity for prosecutors as a solution to correct the problems that occurred in this case is at once a narrow and extreme solution --- and, absolute overkill. It strikes me as advocating burning down a house when a few cockroaches are found in the kitchen.
Without this immunity, an almost total absence and denial of authority would occur in our legal system; virtually every criminal prosecution would result in civil lawsuits. Think about it; someone found guilty would definitely sue since that would be an obvious recourse; and someone found innocent would likely sue for wrongful prosecution, reasoning that their having been found innocent would prove that they were wronged. Such a system would result in absolute chaos and in effect, anarchy.
It would not only create an immense “distraction” for prosecutors, it would render our legal system completely impotent. Remember, a prosecutor represents “The People” and it is justice for the benefit and protection of the people that a prosecutor is empowered to bring charges against individuals who violate laws.
Many commenting here have supported a “dispassionate examination of the facts” as a check against a rush to judgment on any matter. To me, calling for an elimination of immunity for prosecutors is a clear rush to judgment. I believe that a dispassionate, thorough examination of criminal prosecution would prove the reality that: (1) By far and away, most criminals prosecuted are likely guilty; (2) A large number of persons charged with crimes are never prosecuted for those crimes (recall that during Nifong’s tenure it was found that he reviewed 12 rape cases and only prosecuted 4 of those), and I believe that if “the people” were made fully aware of how few of those arrested are prosecuted, they would be appalled. Such numbers are rarely, if ever, reported and even more seldom, adequately explained; (3) If a prosecutor brings a case to trial, it is most often, a very strong case with a significant amount of inculpatory evidence; and (4) Only very rarely do egregious examples of prosecutorial misconduct occur.
Occasionally, “we the people” hear of an individual who avoids prosecution due to a “legal technicality.” What are those? They are a plethora of rules, laws, and procedures that govern how a prosecutor can conduct the people’s case against an accused. They are put in place to counter the very awesome power that the state, in the form of criminal prosecution, has over people. Those “technicalities” are the very absolute and specific checks on power that is derived, from among other things, the practice of granting immunity to a prosecutor in the conduct of his official duties.
It is not true to state or believe than an accused is without protections or remedies in the course of criminal prosecution. For those who are wrongfully charged or convicted, other remedies exist, some of which have already been discussed here and fall far short of calling for an end to immunity for prosecutors.
It has been reported that North Carolina’s procedures regarding a prosecutor’s handling of exculpatory information are considered among the more liberal of those rules in the country. Statements made by a prosecutor are also controlled. Indeed, it was those two areas that caused Nifong’s demise, although it was deeply troubling that the decision to bring charges against him passed by only a single vote of a NC Bar committee.
Other points have been raised as checks against prosecutorial power and misconduct, among those: (1) Reform of grand jury proceedings requiring a written record --- there is no immunity for law enforcement against false testimony; (2) In some states, a person charged with a felony can demand a Preliminary Hearing --- such a step would have forced Nifong to have shown his cards very early on and would have exposed the weakness of his case. (3) Some have suggested that presumptions in the law and in society regarding rape cases need to be put in better balance, in particular, eliminating false and ridiculous assumptions such as “woman never lie about rape,” and “rape is the least reported crime;” (4) Ensure that all criminal defendants are provided competent counsel; (5) Conduct more frequent prosecution of and establish greater criminal penalties for, false accusers; and (6) Any criminal conviction can be appealed.
And, I would add to those points, a thought of my own. Perhaps it would be a good idea to pass laws that prohibit a District Attorney who is planning to run for office from prosecuting a case or making ANY public comment on any pending case within 12 months of his election.
I could write more about potential remedies for the many wrongs committed that abetted Nifong’s illegal behavior and had nothing to do with prosecutorial misconduct, but I fear this is already too long.
I simply do not believe that ending the practice of civil suit absolute immunity for prosecutorial behavior is even a remotely reasonable approach to deal with the wrongs that were committed in this case.
One Spook
"the lacrosse case didn't affect Duke fundraising."
And there really is an Easter bunny. There are potentially major donors who have said: "I won't donate to Duke because its professors hate their own students."
Duke Prof
Will the Rev. Barber and Al McSurely like this development, pray tell?
The website verifies that Roy Cooper will definitely be on Headline Saturday tomorrow evening.
For those in the Triangle, it's at 7 PM.
For those who want to view the video of the show, it will be added to the page that is linked sometime later.
Don't have this in stone, but someone told me that Cooper would be discussing the lacrosse case.
Checking the comments on the Chronicle editorial this morning, the lengthy comment by "FactChecker" cited by JinC in his piece has been expunged, though a website plug by the obvious spambot "amy" remains. To quote Gomer Pyle, PFC, USMC: "Well, surprise, surprise, SURPRISE!"
-JackWebb
I understand One Spook's point about immunity and distractions, but everyone else has to live with those same "distractions." For example, I head the university's promotion and tenure subcommittee, and that means potential lawsuits from unhappy professors that might sue if we give a thumbs down on their applications.
Yet, the process goes on despite the potential distractions. As I have said before, if the legal system is good enough for everyone else, it should be good enough for lawyers and officers of the court.
I'm an economist, and one of the things we do as economists is to look at the incentive structure that exists in different organizations and institutions. Right now, prosecutors are rewarded on getting convictions, period. When one does not have to worry about a high probability of being punished for lying in court or hiding evidence, but the reward for convicting that person is high, then there is a huge conflict.
Furthermore, judges are loathe to overturn jury verdicts, which means all a prosecutor has to do is to get a conviction, and he or she is in the money. There is no way around this sad fact.
Take the recent case of Timothy Cole, wrongfully convicted of rape in Texas in 1986 and who died in prison in 1999. At his trial, his defense attorney pointed out who had committed the rape, but the prosecutor and judge were not interested. The evidence was THERE ALL ALONG, yet the prosecution ignored it in the rush to convict someone who was not there, and who did not commit the crime.
Today, that same prosecutor is a judge. He does not have to worry about facing sanctions, losing his job or suffering a loss of income. His career is set, even though he essentially killed an innocent man.
Think about it. We are supposed to PROTECT people like this? People who ignore evidence and people who win in court literally by killing others who do not deserve what is happening?
Yes, most people accused in criminal court are guilty. In fact, Wendy Murphy used that statistic as "proof" that Reade, Collin, and David were guilty. Nonetheless, there no longer are any real and meaningful safeguards in the legal system.
We point to Nifong's removal from office and disbarment as "proof" that "the system works." Wow. Only after the defendants spent millions of dollars debunking charges that as K.C. has pointed out were transparently false.
What kind of private business is able to pull off something like that? We see criminal prosecutions of business owners and managers all the time. We almost NEVER see prosecutions of people in the "justice" system, no matter how egregious their actions.
There never has been a conviction of a prosecutor in this country for prosecutorial misconduct. Never. Yet, we know that prosecutors engage in misconduct all the time. We know that prosecutors lie, hide evidence, or stretch the truth.
Yet, they are not accountable. When the actions taken against a known lying sociopath like Mike Nifong are "remarkable," then we have to pause for a second. Yes, he lost his license and his job and had to spend a day in jail.
Had a Durham jury convicted these young men -- and I am fully convinced that it would have, given the politics of that city -- then Nifong still would be in business. Nifong knew that all he needed to do was get this case to trial, and the system would protect his back all the way.
So, I rest my case. If the legal system is not good enough to protect prosecutors and judges and police, then it is not good enough to protect anyone else.
I will add one more point. In this country, we give more protection for people who buy used cars than we do for those people who are accused of crimes. If a used car dealer sells you a lemon, he is liable for his actions.
If a prosecutor sells a jury a big lie, which was what happened in the Cole case, nothing happens. Read about prosecutorial lies and abuse, and you will see what I mean.
Nancy Grace was a prime example of a prosecutor who lied and bullied. What was her reward? Oh, she has a TV show in which she lies and bullies people, and makes big money for it.
Now, CNN should not have rewarded her for what she did, but had there been any system of justice that placed her under the same legal liability as a dealer of used cars, she would not have been able to prop up Mike Nifong as long as she did.
As far as I am concerned, the criminal justice system in this country is irretrievably broken. It cannot be fixed because the current system rewards those who lie and abuse it.
Just what we need, more frivolous lawsuits and more criminals that don't even get prosecuted because the DA is afraid he will be sued if a jury finds an accuse innocent.
In other related matters, the N&O continues to serve as an open billboard for Tim Tyson.
Readers must always leave comments to remind the public of Tyson's particular brand of "justice".
Bill Anderson and John in Carolina have done some outstanding work on this case. How refreshing to see them still manning their posts. Duke and Durham probably don't like it that much though. ; )P
Two stellar posts by Bill Anderson---(7:55 AM) and (8:59 AM).
Bill, I certainly hope you understand that I am not contending that prosecutorial misconduct does not occur or that it is not wrong --- it does happen and it is certainly wrong. It is a problem, but I do not think we agree on how widespread the problem is in our legal system.
My point was that the removal of immunity for prosecutors is not a viable solution. You and I both used the word "distraction" because that word was used a court decision upholding immunity for prosecutors. I contend that removing this immunity would be far more devastating to our system of law than a mere distraction ... it would invite chaos.
And then you state, "
There never has been a conviction of a prosecutor in this country for prosecutorial misconduct." That's like asserting that "no one was burned at the stake as a criminal punishment." Both events are clearly illegal.
The system for punishing prosecutors rests with sanctions that are imposed by State Bar groups as we saw with Nifong.
At this site, The Center for Public Integrity studied cases of prosecutorial discipline.
"The Center [for public Integrity] studied dozens of cases since 1970 in which the prosecutor was disciplined. Of those 44 cases:
- In 7, the court dismissed the complaint or did not impose a punishment
- In 20, the court imposed a public or private reprimand or censure
- In 12, the prosecutor's license to practice law was suspended
- In 2, the prosecutor was disbarred
- In 1, a period of probation was imposed in lieu of a harsher punishment
- In 24, the prosecutor was assessed the cost of the disciplinary proceedings
- In 3, the court remanded the case to further proceedings."
If I'm reading the data correctly, 44 cases over a 38 year period seems like a fairly small number. As a solution to the problems that surfaced in the Duke hoax, I would be the first to agree that one solution to the problem is that Bar Associations need to take a more aggressive stance with respect to disciplining prosecutors.
And, we agree that the actions taken against Nifong should not have been "remarkable." I commented weeks ago that Nifong's punishment, touted by some as evidence that "the system works," is tantamount to saying that a pilot successfully parachuting from a burning plane is evidence that "flight safety worked." In fact, in Nifong's case, the system amounted to "the court of last resort" and it barely worked.
And yet, of all the bad actors in this case, Nifong, to date, is the only person who has been punished.
To use your logic, "if the legal system is good enough for everyone else," why haven't the other miscreants in this event received any punishment?
Although Duke University and the other defendants (except Nifong) in the civil suits would have us believe through their public statements and in their legal arguments that this case is all Nifong's fault, careful observers know this is not true.
Nifong did his part by his own prosecutorial misconduct, but he did not act alone. Indeed, his actions were abetted significantly by what many believe were the criminal and/or tortious acts of Levicy; Duke Administration; Duke Faculty; the Durham Police; "Investigator" Wilson; the false accuser Mangum; and members of the media.
To me, rather than focusing on the legal system, which did impose it's sanctions on a prosecutor, where is the justice in imposing penalties and/or professional sanctions on these other miscreants in this fiasco?
This group has enjoyed "tacit immunity" from any criminal prosecution or "professional sanction," and the success of civil prosecution is far from certain.
To me, that is the greater crime, both literally and figuratively.
And the media, as complicit as any of the abettors of Nifong, is not even a defendant in any civil suits. A good argument can be made that the media's tacit immunity in wrapping itself in the first amendment even exceeds that of the legal profession.
So, while I still contend that eliminating immunity for prosecutors is not a viable or reasonable solution, I believe that more focus needs to be placed on other evil doers in this case.
And what of the State or Federal Investigations into the civil rights issues in this case?
I see in the link the Debrah gave us above that NC AG Cooper is investigating possible year-end bonuses paid to Bank of America employees. Apparently his office has the "resources to investigate" this political slam dunk, but his office lacked the resources to investigate the lacrosse hoax.
And, in case no one noticed, there's a new Sheriff in Washington, D.C. Where now is the "call for a Federal Investigation" that candidate Obama never made in the first place, and that was supposedly quashed by the previous administration?
What is preventing a Federal Investigation into civil rights violations in the Duke case now?
One Spook
Bill's point about the unbalanced incentives is well taken. There should be stronger reasons not to pursue a weak or nonexistent case than presently exist. I do not understand OneSpook's comment to the effect that the vast majority of those prosecuted are guilty. Could it be that a significant fraction of people are indeed wrongfully convicted, either by error or misconduct (major or minor) by police or prosecutors? I have no way of knowing.
Chris
I would like to adopt One Spook's comments in all their particulars and praise his ability to address with dispassion a subject that blinds with emotion too many others.
A couple of further comments: Most people are familiar with the "separation of powers" doctrine, but many fail to see how it applies to criminal convictions. It's simple: After the judicial branch convicts a defendant, if the defendant is sentenced to prison the matter is transferred to the executive branch, which alone controls the prisons and has the power to grant pardons and paroles.
Much is made in the "Tim Cole Texas rape case" of the fact that the real rapist eventually (10 years late) "sent a letter of confession to a court". It is suggested that this should have resulted in Cole's freedom. My friends, the real rapist addressed his confession to the wrong government official. He should have sent his confession to the Texas Board of Pardons and Paroles, not the Lubbock County courthouse. Think about it: If you commit a crime and you send a letter confessing your crime to a judge, what's he supposed to do with it -- order up a trial on his own volition, order his bailiff to check it out? You should have sent your letter to the police (executive branch). The best you could hope from the judge -- more accurately, from the lowest level clerk in the courthouse bureaucracy -- is that he would forward your letter along to the proper authorities.
Almost invariably in these cases where too many conclude "he was innocent, ipso facto the legal system is a mess", a closer examination shows that the legal system did its job properly. I see in the Tim Cole case that the accusing, and not apologetic, witness is now claiming that she identified Cole as the rapist based on misrepresentations made by the police (again, the executive branch). So, the police botched the investigation and then the real rapist confessed to the wrong forum ... And somehow this is an indictment of our courts or the lawyers who work in them?
One other thing, should this door swing both ways? I mean, should it be legal for a defense lawyer to hide inculpatory evidence? What if by the defense lawyer hiding evidence the defendant goes free and commits another crime -- Should the lawyer go to jail then? Where does it all end?
Finally, a personal note for Prof. Anderson, whose postings here I always look forward to and appreciate: What Nifong did was shocking and morally reprehensible. What 88 professors did was just as shocking and morally reprehensible. But the legal system -- my system -- punished Nifong. Your system rewards the 88. If my system had the same sense of justice that academia has shown in this case, today Nifong would be state attorney general and on Obama's short list of Supreme Court nominees. If your system had the same sense of justice as the legal system has shown in this case, people like Baker and Holloway would be teaching "Marxism as a Second Language" at a drivers' ed school in El Paso.
I know you're trying to reform academia to make people like Baker and Holloway impossible to imagine, Prof. Anderson, but the evidence shows that you don't need to be distracted from your efforts to improve own profession by suggesting drastic changes in other ones.
RRH
I need to add that One Spook and I are NOT disagreeing over the issue of integrity. Yes, I understand his point, and it is not trivial. Nonetheless, I am throwing out some ideas because I see the situation as being intolerable.
When a prosecutor wins a wrongful conviction, he or she is taking the life of another human being. It is my contention that there NEVER is an excuse for a wrongful conviction. I know that is a radical statement, but I believe that every wrongful conviction has come about because prosecutors did not investigate carefully or simply did not care at all about guilt and innocence.
My guess is that One Spook and I agree on that point. Our disagreement is over how to deal with it. And we can agree to disagree, for both of us agree that Michael B. Nifong is pure, unadulterated scum. (I mean no insult to scum, of course.)
halides writes @ 5:12 PM:
"I do not understand OneSpook's comment to the effect that the vast majority of those prosecuted are guilty."
Chris, This is what I wrote: "(1) By far and away, most criminals prosecuted are likely guilty;"
I did not word that sentence well, and you have to include point (2) to properly understand it.
What I meant was this. Most people that are charged with a crime are most likely guilty. But, because of the many, many protections that are given a criminal defendant in our legal system, proving that guilt is often very difficult.
It is difficult because, while our legal system provides immunity for a prosecutor in his "official duties," it also provides a multitude of protections for criminal defendants, and places a great burden on the State to prove guilt (not for a defendant to "prove their innocence" as the idiotic Brodhead opined).
Both prosecutors and defense attorneys know this, and often times a prosecutor will either dismiss the charges (as I cited in the rape cases before Nifong where he did not prosecute a majority of those), or agree to lesser charges to which a criminal defendant will agree to plead guilty and thus avoid a trial.
In our criminal justice system this is where the vast majority of the "lawyering," if you would, is done; not in the courtroom.
Generally, during this early phase, numerous conversations and meetings, all usually amicable and off the record, occur between prosecutors and defense attorneys.
At this point in the lacrosse hoax, it was the job of the defense attorneys to convince Nifong that he had no case, and to drop the charges. The defense attorneys were completely convinced of their client's innocence, probably more so than any clients they had ever represented.
But, Nifong rebuffed attempts by attorneys to meet and discuss the case. In time, it became obvious to the defense that Nifong was determined to try the case regardless of the facts. His behavior towards them plus his very disturbing and illegal public comments convinced the defense attorneys that Nifong was engaging in prosecutorial misconduct.
I would hazard a guess that even to this day, the defense attorneys do not understand why Nifong did this, and they believe his behavior was an anomaly.
And, I believe that is the case in most instances of prosecutorial misconduct.
One Spook
Bill Anderson writes @ 8:59 PM
"My guess is that One Spook and I agree on that point. Our disagreement is over how to deal with it."
Absolutely, Bill. In a perfect world, there should be no prosecutorial misconduct of any kind.
But I embrace RRH's comments above that at least the legal profession has a system for miscreants in its profession and that did work, however paltry it might seem to observers given the extent of Nifong crimes. Being barred from practicing law is a severe punishment for any attorney.
My greater concerns, as this entire episode proceeds, is where is the punishment for the evildoers who abetted Nifong's behavior? Without Levicy; Duke Administration; Duke Faculty; the Durham Police; "Investigator" Wilson; the false accuser Mangum; and members of the media, Nifong could not have proceeded.
Throughout this event, I have been struck by the presence of KC Johnson, Stuart Taylor, Jr., Bill Anderson, and many others including some who comment here.
These individuals remind me of those tireless workers who some 40 years ago worked in the south to register black voters and promote other actions to ensure the civil rights of American citizens.
To the law enforcement and government establishment then in power in the south, those individuals were known as "outside agitators."
To those at Duke, Durham City Hall, Durham PD and the Durham County Courthouse who wish we would go away, we must appear much like those "outside agitators." How dare we invade their racist, sexist, PC status quo?
We ARE outside agitators. I love it!
One Spook
One of the really awful things about Nifong's behavior was that he clearly decided from the start that (1) there was a rape, no matter what the evidence said, and (2) Reade, Collin, and David committed it.
Thus, any exculpatory evidence simply could be twisted into inculpatory evidence, and he had plenty of help.
In early 2007, I received an email from Catherine Bath, who is an "executive" with "Security on Campus," which basically is an organization dedicated to calling all males on college campuses rapists. She attached an email from Wendy Murphy, and her comments about Reade Seligmann were quite telling: She wrote that Reade's leaving the party was "proof" that he raped Crystal.
How did she come to that? Well, Reade was "frantically" calling cab companies, trying to get away after he had raped Crystal. I informed Bath that Reade called ONE company, he was not "frantic," and there was a signed affidavit from the cab driver about picking up Reade, and he clearly was NOT frantic.
Bath agreed to take down the Murphy email from the organization's website, but she assured me that "something happened." You can bet I was all over that comment.
What we had were prosecutors and former prosecutors constantly trying to change their stories to keep the lie going. I have no doubt at all that Murphy knew she was lying; no reasonable person does what she did, any more than a reasonable person does what Nifong did.
Because of the refusal of the authorities even to investigate the activities of Levicy, Gottlieb, Himan and Nifong, there remains only the lawsuit as a way for redress. Yet, even here, the plaintiffs must deal with the immunity that some of the defendants have, so at every turn, the government is throwing barriers in their way.
It just is stunning the lies and out-and-out criminal behavior on such a wide scale in this case, yet the very real possibility exists that nothing will happen. Since it is clear that the real criminals in this case have huge amounts of state-enforced protection, one hopes that someone, somewhere can make these people accountable.
Our society is becoming increasingly politicized, and we can see firsthand what happens when so-called enforcement of the law is done in a totally political manner. Durham was ready to railroad these young men to prison solely because of their race and status. The "rape" charges were an afterthought, an excuse.
That is why I never again will trust anything from the so-called organizations that say they "stand up for justice." We know what they mean: political "justice," and nothing else.
First, there is nothing more destructive than a dishonest prosecutor. I believe that Nifong should have received more than a day in jail. That being said, I agree with One Spook. Allowing prosecutors to be sued would cause more problems than it would solve.
Durham has become something of a banana republic. A staple of such places is that law enforcement is 100% political. If such a law was passed, the lawsuits against prosecutors would also be political. You would see honest prosecutors being sued. For example, an O.J. Simpson type defendant who gets acquitted despite being dead-bang guilty would be suing the prosecutor.
Prosecutors dismiss many cases, up to 35% in some places. Suppose a prosecutor dismisses a case for lack of evidence and the suspect goes out and murders someone, should he then be sued?
In 2007, an illegal alien in New Jersey was arraigned for child molestation. The judge was shown on TV saying, "All right." The suspect was then released, apparently without even putting up bail. The suspect soon after was arrested in the execution-style murder of several black teenagers. I saw this on MSNBC. Should this New jersey judge be sued for favoring a criminal suspect? For my part, I don't want judges like this on the bench. Judges are appointed because they know a politician or know someone who does. By no means do they always favor the prosecution. I believe this judge was acting "politically" when releasing the suspect.
Anyone who has kept up with the Lacrosse Hoax on the slightest level would have to say that a place like Durham operates like a banana-republic.
Agreed.
However, the entire justice system operates in such a way that criminals, and to a much larger degree, "minority" criminals, are treated with kid gloves.
The horrific probation system which N&O reporter Joe Neff has been investigating is so lax and filled with incompetents who are put in charge that dangerous criminals are allowed to run rampant.
Never fully paying for their past crimes.
Many repeat offenders have no formal education; however, they know more about how system works than a lot of attorneys do.
They live their lives going through the swinging door.
IMO, it's a myth that "minorities" are treated worse and that they have less power inside the justice system.
Of course anyone who is unable to hire a top attorney is going to suffer if they've been accused of a serious crime.
However, you have to ask one question.
If so many "downtrodden" people have such horrific experiences within the justice system, why do so many willingly make a way of life being inside it?
These seasoned and career criminals know very well that the system favors them.
They can give endless interviews to tendentious and hopelessly archaic news reporters about being "beaten down by the system".
The old scenarios exist no more as many would have us believe.
The case I mentioned above took place in Newark, New Jersey in August 2007. The suspect is a Peruvian illegal named Jose Carranza. The Learned Judge is named Thomas Vena. Newark is a "Sanctuary City." This means illegal aliens have more rights than American citizens.
Carranza was being arraigned for his third offense. He did have bail, but it was for the first offense. The judge kept reducing the bail until Carranza could make 10% of it. Then he was released. When arrested for child molestation (the third arrrest), the judge said "All Right" and turned Carranza loose on the bail for the FIRST offense.
A few days later, Carranza allegedly was trhe trigger man in the execution murder of 3 black college students. He had been repeatedly arrested for serious violent and sexual crimes, and repeatedly released on bail, with the federal immigration authorities never being informed about him. Some would say that the judges and attorneys in the criminal justice system are alienated malcontents who deliberately or with depraved indifference unleash dangerous criminals onto society. The sympathy for criminals and aliens seems larger than for law-abiding citizens.
K.C. Johnson and William Anderson could write about these kinds of incidents as well. I have a hunch Judge Vena would not have been so lenient with the 3 innocent Duke Lacrosse players.
K.C. Johnson and William Anderson could write about these kinds of incidents as well. I have a hunch Judge Vena would not have been so lenient with the 3 innocent Duke Lacrosse players.
I agree. Even a city as jaded as Newark was shocked by the brutality of these murders. I have stayed in Newark many times with friends (in a rough part of town), and can attest to the situation there.
Of course, the Newark murders were no more brutal than the murder of Eve Carson last year, allegedly committed by people who were supposed to be in jail, but were not, thanks to Durham's lax law enforcement standards. Of course, Durham had the millions to put into the fake LAX case, but not enough to protect Eve Carson. Why am I not surprised?
Professor Anderson, I think, gets the better of the lively argument over how to deal with corrupt prosecutors. His point about incentives is powerful. Prosecutors are rewarded by the convictions they achieve. There are few checks and balances in the current system.
Very, very interesting commentary. The defenders of the system taunt us with their procedures.
If an innocent person rots in jail because of mistaken identity and an over zealous prosecutor, well that's just too bad. That's the way the system works. And if some jail bird addresses his confession to the wrong branch of government... Ha! Ha! Ha!... The innocent continues to rot... We can't expect someone inside "the system" to have the integrity to take the ball and run with it. That's not how things are done. TSK.. TSK...
We also can't have any of those in "the system" punished for their mistakes... No that would be a burden... I'm guessing many of those that are part of the clique ("the system") don't feel the burden or the pain of the innocent or others lost in "the system"... As long as "the system" isn't overburdened, everything will eventually prove that "the system" works. If not, the lawyers can rewrite the laws to reflect that "the system" always works.
After spending years in jail for a crime he didn't commit or worse yet dies while wrongfully convicted, "the system" gives him and us a big oopsie daisy... stuff happens, not our fault, system works, best in the world, you got something better then whoop it on us, look somewhere else for the problem.
Laws written by lawyers to benefit lawyers and are overseen by lawyers are starting to make me sick.
I have several acquaintances who are lawyers and cops.. They are some of the most flagrant abusers of "the laws" of anyone I know. (check out Obama's list of nominees). They drink and drive, they harass and threaten others, they speed, they don't wear their friggin seat belts....(some don't even pay their taxes) they do as they damn well please because they know and they know we know, they can get away with it. Just a call to one of their buddies in "the system" and all is forgotten.
Durham is not an anomaly...
You guys in "the system" must be proud of what you've created to keep yourselves above the law, untouchable and free to taunt those of us not included.
DM
Yes, the Eve Marie Carson murder was similar to the Newark murders I mentioned above. The news stories about the Newark case were typically vague. I think the prosecutor claimed to have opposed releasing Carranza on bail the last time. However, the elected local DA might have been in agreement with Judge Vena's action. This is the situation in places like Newark-and Durham. The judge released the illegal alien suspect because it was the "political" thing to do in Newark, and justice is political in banana republics.
The judge had no comment on what happened after he released the suspect. Should he be sued? I think he could be voted out of office, but probably will not be.
For what it's worth, I don't think the threat of a lawsuit would have stopped Nifong. He was after Tom Wolfe's Great White Defendant to win an election for his own benefit. Nifong was too stupid to realize that he would end up in worse financial condition than he would have been if he had behaved honestly.
One of the problems about the current "justice" system is that it has become a "heads I win, tails you lose" situation for people falsely accused of crimes. The procedures often are twisted out of proportion because people don't want procedures to "get in the way of guilt."
Thus, actual guilt or innocence often don't matter; the prosecutors hold most of the cards, and if they can manipulate the system, they usually will get a conviction, even of a person who clearly is not guilty, such as the young men charged in the Duke case.
However, on the appeals side, guilt or innocence don't matter, either. In fact, innocence alone cannot be used as a reason to overturn a jury verdict or a plea bargain made under duress. Instead, the courts look to procedures, but because the courts already have made a joke of procedures, it becomes harder for innocent people to go up against what clearly is a stacked deck.
I am not a Pollyanna regarding human nature, so I believe that the structure of institutions cannot be laden with incentives for those who run the institutions to act dishonestly. If we reward dishonesty, we will have more of it. If we prevent dishonesty from being exposed, as it the current case, we will continue to have more dishonesty.
Right now, we have to depend upon prosecutors, judges, and police being guided by a moral compass that stresses personal honesty. However, it seems that even the liars are called "honorable" by others employed with the system.
Exhibit A is Ronald Stephens' testimony about his good friend Mike Nifong in the contempt trial. Stephens clearly believed Nifong was getting a raw deal; Nifong, after all, was "a man of his word" and a paragon of integrity, according to Stephens.
I don't think that Nifong somehow "fooled" Stephens. Instead, Nifong's sociopathic behavior was fully acceptable to Stephens, because it made it easier for his office to gain convictions.
Never forget the outright hostility that Stephens demonstrated toward Reade Seligmann and his counsel. Reade and Kirk Osborn were telling the truth; Stephens, instead, sided with the man telling lies, and whoppers at that. So much for judicial integrity in Durham.
I'd like to make one more comment regarding judicial immunity. If Reade had the legal right to sue Stephens, then we could find out if Stephens actually had conversations with Nifong beforehand, and how he came to the decision to grant Nifong's ridiculous request of $400K bond.
I'd like to know why Stephens had no problem with Nifong's making sure that there would be no preliminary hearing, as he made arrests only after indictments. (That served a dual purpose: (1) it kept the evidence in the case from becoming public, and (2) it served to further inflame the Durham public, as it seemed as though the white kids were getting preferential treatment. Thus, when they were arrested, the public anger against them was even greater than it had been before.
To be honest, I believe that Reade and the others have a right to know if there was a conspiracy between Nifong and Stephens. This sure looked like rigged justice to me, and I would think Reade would like to know that, too.
But, the laws of immunity protect Stephens from having to answer such questions under oath.
Great comments from Bill Anderson and others.
I just have one thing to add.
I have to enthusiastically agree with the comment that a threat of a lawsuit would not have stopped Nifong.
That's true as well for many of the enablers who gave him so much cover.
It's difficult to put into words, but most of you know what I mean when I say that the Lacrosse Hoax illuminated a lot of people who are walking around every day carrying a kind if "virus".
IMO, this specific strain came from residue left from the 1960's. Exact origin unknown.
These people have a mental video and soundtrack playing in some nexus of their brains and they cannot imagine life without this fabricated scenario of how "life is".
Check out Jean Seberg and read her story.
She is the most illustrative of the kind of well-meaning naivete that existed back then.
It's different now, but the residue and the exploitation of the kinds of sensibilities of the Jean Sebergs of the world are with us.
That's why you have people jumping to the aid of Mangum, Nifong, the Gang of 88, and all the other race-baiters.
There is no logic or rationale for defending these criminals because of their race or gender, etc......
.....but that "virus" has many mutations running around in present-day society.
I read the book "Played Out" which was Jean Seberg's life story and it was very sad. I had never heard of her before.
She was self-destructive; however, the emotional, psychological, and physical tethers she developed with the "othered" surely assisted greatly in her demise.
The disease that caused the Duke Lacrosse Hoax is very much alive and well in the year 2009.
I would agree that Nifong would have plowed on no matter what. However, it should not be so difficult to bring this miscreant to justice. The system has protected him, and he does not deserve an ounce of protection. Reade, David, and Collin sure got no protection.
Wonderful discussion between Bill Anderson and One Spook, seconded by various Anonymous.
For many years, I would have strongly adopted One Spook's view that the disadvantages of allowing civil suits against prosecutors were prohibitive. Civil suits are easy to file. Many are meritless. All are expensive in money, time, and nervous energy. We do not want (most) prosecutors spending their time an public money in such suits.
However, in my old age I have completely changed my viewpoint, and now side with Bill Anderson's view there should be more accountability. A lot more.
How to do it is the question. But, it needs to be done.
Civilized people should feel revulsion at the conviction of innocent people for crimes they did not commit.
As the number of those on death row who were provably innocent moves into the three figures as the result of the Innocence Project;
As the Governor of Illinois in a quasi-courageous move commutes all death sentences because of the unreliability of Illinois convictions (he waited until he left office to do so);
As anecdotally the convictions of the innocent pile up;
The total immunity of prosecutors needs to be changed.
One possibility I suggest is to adopt the restrictive procedures used in some types of securities litigation.
A plaintiff must pass a very high bar of proof and pleading, before he may even proceed with a complaint. A judge stands in the way of meritless claims, and those which do not meet the high standard of pre-litigation proof.
This is a place to start. It is a way to bridge the gap between Mr. Anderson, and Mr. Spook, to get us where we all want to be.
Jim Peterson
The cackles of laughter that we hear are from the 88ers who must be thrilled to see some of the most respected and accomplished members of DiW leaving them alone in order to assault the one system in America which might bring some of the 88ers and their enablers to justice.
One of my high school dropout father’s favorite sayings was, “A word to the wise is sufficient”. And it was with that in mind that I wrote my comment above at 7:33 PM on 2/7/09. But my father also said something about a mule and a two-by-four.
I have not been one of those who, in light of the horrendous behavior of Duke and other universities in the Lacrosse Hoax, has taken to the hallowed pixels of DiW to demand changes in academic governance – for instance by demanding the end of the tenure system. This forbearance by me is despite the fact that by any objective measure I am far more qualified to recommend changes in academia than a college professor would be to recommend changes in the legal system. If I were a college professor, you can bet I would be burning up the keyboard with my insistence on drastic academic reforms.
Also, if I were a college professor urging reforms of academia, I would be deeply humbled by the fact that in the Lacrosse Hoax that the legal system performed magnificently compared with the academic system. In fact, I would be hard pressed to imagine how the legal system – which declared the players innocent and punished (and is still punishing) the wrongdoers – could have done better. I would also be hard pressed to imagine how the academic system – which punished the lacrosse players and rewarded (and is still rewarding) the wrongdoers – could have done worse. For an excellent mental image of the lowest ring of Dante’s Inferno, simply imagine the fates of the lacrosse players without the legal system! True, there would be no Mike Nifong, but also no Joe Cheshire, no Brad Bannon, no attorney general, no ethics commission – the whole “trial” would be conducted in the halls of academia and the pages of the media, with nobody but KC and his tiny Sunshine Band to sound a contrary note. Ask the boys which system they would rather be judged by: The one which gives them rights, including the right to hire professional advocates, or one that operates like academia and/or the media did and does!
Based on actual evidence, if I were a professor and my brain had not been addled by too many renditions of “Pomp and Circumstance”, I would be looking at what works in the legal system for hints of how to correct what fails in the academic one. Therefore, Prof. Anderson, if I see you one more time trying to use the Lacrosse Hoax to condemn the legal system – by suggesting “reforms” such as changing the standard of proof from “guilty beyond a reasonable doubt” to “guilty beyond all possible doubt” – I am going to have to nominate you for honorary membership as an 88er.
Then we have the comment by “DM” at 4:30 AM this morning that takes me to task for what he sees as my callousness about the mistakes that the legal system sometimes makes that put innocent people behind bars. Maybe he and I aren’t looking at the same picture. In my picture, the failures of the legal system does not put a few score or a few hundred innocent people behind bars. They put tens of millions. Where are these tens of millions of innocent people behind bars that DM (and most other critics here) cannot see? Let me take you on a drive through America’s poorest neighborhoods, and I’ll show you people behind bars – bars on windows, bars on doors. Those bars and the frightful lives behind them are the result of the failures of our justice system. And these people don’t get the bars for free – they have to pay for them! And they pay for their own meals and clothes! And when the house catches on fire, their children pay with their lives when they cannot escape! The next time you see a story about “A house burned down, killing five children”, take a look, if you can, at the house. The odds are there were bars on the windows and three different locks on the doors! Then I want you to think about this: Why are there bars on those windows and three different locks on the doors? And will “reforms” like those suggested by Prof. Anderson and others increase or decrease the number of children whose last terrifying moments will be spent clawing at the walls while their lungs melt?
RRH
RRH:
Your point is well stated. There's a whole lot of injustice to go around. A lot of people get second helpings.
I don't have a solution for the millions who live behind bars other than to advise them to vote intelligently. As for the universities that treat their students payees as dumb cattle, they will suffer the same fate as their industrial ancestors. Unions will fill the power vacumn. I am surprised it hasn't happened in the student sports arena yet but it's just a matter of time.
Your posts were very thought provoking.
Ken
Dallas
One Spook's arguments that (1) the proper function of the criminal law is to protect the law abiding, and (2) subjecting those responsible for prosecuting criminals to the vagaries of modern civil law is outright dangerous to most of us, are very persuasive arguments.
A different way to say it is that the civil law has been permitted, aided and abetted by the connivance of lawyers, to determine and influence far too many decisions in modern life. Anderson's proposal to sink a new and critical area of life into that same morass is a little like saying that if you have lung cancer, it would help to get brain cancer too. The realm of the civil law does not need to be expanded, but greatly reduced.
As RRH points out, the legal system has at least done something with regard to Nifong: he has been disbarred, far too briefly jailed, and subjected to the hell of civil procedure in America. It is of course not enough, not nearly enough. Nor, as I understand it, do any state immunity defenses that Nifong may CLAIM, apply to federal violations of civil rights. Abuse of process by a state is not immune to federal remedy. So Nifong is not finished with his punishment.
(I anticipate Anderson rebutting that the Civil War amendments do not protect anyone against abuse by federal prosecutors. True, but from such crooked timber as humanity, nothing perfectly straight can ever be made. There is no universally ultimate answer to "quis custodiet ipsos custodes," who will guard us against the guards.)
However, RRH's self-congratulatory pats on his and his colleagues' backs are hardly deserved. He observes that the persistent failure of the justice system to prevent pervasive crime subjects millions to frightened and miserable lives. Then he expects us to applaud this same system. Huh?
He says, the "real rapist confessed to the wrong forum ... And somehow this is an indictment of our courts or the lawyers who work in them?" For RRH, the highest priority is for everyone to understand that there are three independent and co-ordinate branches of one government, and so we should appreciate a court that lets the innocent stay in jail whenever criminals fail their civics class by sending their confessions to the wrong address. Actually, I might appreciate a court that has the wit and the heart to forward a confession to the appropriate branch of government.
Or let's take this gem: "should it be legal for a defense lawyer to hide inculpatory evidence? What if by the defense lawyer hiding evidence the defendant goes free and commits another crime -- Should the lawyer go to jail then? Where does it all end?" To answer a rhetorical question with another, where is RRH's sympathy now for those terrorized by criminals if a fellow attorney might be held seriously accountable? I mean, what are a few children with their lungs melted by fire compared to the pain of a lawyer in a cell? If a lawyer gets someone off by suppressing inculpatory evidence, my vote is that lawyer should serve double the maximum sentence of the criminal. The lawyer is, after all, supposed to be an officer of the court. And if the law disagrees because it views the adversarial process as having divine sanctity, then the law is an ass.
JeffM
Jim in San Diego writes @ 3:43 PM:
"The total immunity of prosecutors needs to be changed.
One possibility I suggest is to adopt the restrictive procedures used in some types of securities litigation.
[...]
This is a place to start. It is a way to bridge the gap between Mr. Anderson, and Mr. Spook, to get us where we all want to be."
As usual, you advance excellent points, Jim. I would agree that there should be "more accountability" and I think Bill Anderson agrees with that too.
We disagree on how to achieve that accountability.
My original point was that "ending the practice" of immunity for prosecutors would invite chaos in our legal system. I still believe that.
I also believe that the system as it stands is not perfect. No system or procedure is ever "perfect." It is for this reason, among others, that I have have never supported the death penalty. That is a sentence for which there is no recourse; no chance for correction of a wrong.
And curiously, as you follow this comment thread, there are arguments offered here that prosecutors and judges are conspiring to put innocent people in jail, coincident with arguments that prosecutors and judges are determined to set the guilty free.
So, which is the correct argument?
Well, of course, both are correct because the procedure is such that either contingency may occur.
At the core of our legal system are two critical presumptions that are intended to keep the system in balance; one that a prosecutor is granted immunity in his "official duties" in seeking Justice for the accused and another that provides for due process rights of the accused, to include a presumption of innocence.
To me, both of those premises carry equal weight in our legal system.
When either or both of those presumptions are absent, a great potential for abuse exists.
Recall that KC Johnson was first attracted to this case because he read a written statement that professors had placed in a student newspaper that presumed the guilt of their own students.
To Johnson, this statement was an anathema to the ethics of the academy and caused him to question, as he recently posted here: "How, [...] did dozens of professors at a major university seem utterly indifferent to due process and almost eager to exploit their students’ difficulties?"
As he began to research the situation, he also noticed, despite not being trained as a lawyer, that the prosecutor and local law enforcement seemed to be violating procedure as well.
Then Johnson recognized and documented executive and administrative procedure at Duke which also contradicted due process rights of students.
Thus, while I agree that changes in the prosecutorial system are worthy of examination, that system alone is not the "villain" in this case.
Imagine for a moment that the actions of "activist" professors had been to defend the students' due process rights, as professors did in droves in the 1960s, and as they occasionally do now (See: "Free the Jena 6").
Imagine if professors and students had marched in front of the Durham Courthouse and Duke administration with signs reading, "Where's the evidence?" ... "Where's the DNA?" ... "Where's the presumption of innocence?"
If that had happened, how far do any of you think Nifong's "prosecutorial misconduct" would have gone?
To me, the essential, critical lesson of this case is far from immunity for prosecutors.
The fundamental problem is that "the dominant assumptions on issues of race, class, and gender" caused a craven university administration together with members of its faculty and employees to ally with corrupt law enforcement to contradict basic civil rights of citizens in order to facilitate and abet a dishonest prosecutor to subvert justice for his own personal reasons.
These perverted assumptions of race, class and gender are the very poisonous seeds that nurtured this entire shameful episode.
One Spook
Ken in Dallas,
Thanks for your kind remarks. I hope you're not a lawyer.
I was planning to write a longer comment there, but I had to take my daughter to Girl Scouts. Now that I see it, it looks long enough though I wish I could have said a bit more.
The more that I would have added is that the media put a few extraordinary cases out there and -- even when they do not butcher the truth of the case -- they promote the impression that these sensational cases are "normal", not the very rare exceptions that they are. Most attorneys are used to seeing the media gravely misrepresent both the facts and the law of cases, are thus a bit blase` about it, and are blissfully unaware of the effect that such stories have on other consumers of media who not know the "inside baseball" of the legal system. (KC has done a fantastic job of tracking the media misrepresentations in the Lacrosse Hoax, but how many other "sensational" trial stories are fact-checked by scholars of KC's caliber?)
Certainly one thing I have learned recently is the importance of trying to do more to make the media "get it right" when they report on high profile legal cases.
RRH
Well, I would try to answer some of these points, all of which are good, but I just taught a class for three hours, it is late, and I am about to fall asleep. (And, I still am at my office, so I need to wake up so I can drive home.)
I thank everyone for the comments. Certainly, we can agree that prosecutors and judges need to be held to higher standards of accountability than currently is the case. How it can be done is another thing.
My proposal does open a can of worms, but right now, the "justice" system is a brood of vipers, so maybe worms would be an improvement!
And thanks to K.C. for providing this forum.
Those of you defenders of the status quo and "the system got it righters" among us ask yourselves.. Were it not for the internet, the media and the families, how would the insiders have handled Nifong? Would they have been so eager to string him up had they been cloaked as they normally are behind their victims' lack of resources and their normal snow job on the public that all accused are probably guilty anyway?
I daresay he'd have won re-election handily and RCD would be rotting in some lowly prison. Martyrs to "the system that gets it right".
Regarding the Tim Cole case: I strongly doubt the story published by the Lubbock Avalanche-Journal in this case. There, the real rapist, one Johnson (no relation to our host, I presume), claims that once the statute of limitations had expired in 1995, wrote a letter to the Lubbock County courthouse asking to be put in contact with Cole’s attorney. His story then gets a little confusing. He says that in the letter he “asked for a judge to hear a confession” and he also says that the letter actually contained his confession. We have seen no such letter and as far I can tell, we have only Johnson’s word for its existence.
Even if we assume that Johnson is telling the truth about his first letter to the courthouse, here’s some “inside baseball” about the legal system – contained in the Avalanche-Journal story:
“But attorneys have warned jail confessions are common and often unfounded. Inmates have flooded the Innocence Project with claims in the wake of exonerations in Dallas and other cities….
"We've had several of these guys. We've had three of these, in fact, guys who say, 'I committed the crime, the other guy didn't.' None of them [before this one] have checked out," said Jeff Blackburn, director of the West Texas Innocence Project….”
(One might wonder why Johnson, then serving a life sentence for another rape, would wait for the SOL to expire before confessing. The answer seems to be that he was concerned about how it would affect his chances of parole. This guy is truly a scumbag of the front rank.)
Another reason for questioning Johnson’s version of events: Cole did not die in prison until 1999; why did Johnson not inform Cole of his readiness to confess? Why was Johnson trying to contact Cole’s lawyer? (I suspect the answer is: To blackmail Cole’s lawyer into doing some work for him by holding out a bribe of a confession that would free one of the lawyer’s clients.) Convicts like Johnson know the criminal law system as well as any attorney – Johnson in fact is now a certified paralegal: Why didn’t he send his confession to the Texas Board of Pardons and Paroles? In fact, with the SOL over with, why not shout his confession from the rooftops? Instead, after his alleged “letter of confession” to the Lubbock County courthouse, Johnson waited five more years to bring up the subject again.
As Oliver Wendell Holmes would say, “Something smells.”
Finally, JeffM says,
If a lawyer gets someone off by suppressing inculpatory evidence, my vote is that lawyer should serve double the maximum sentence of the criminal. The lawyer is, after all, supposed to be an officer of the court.
Yes, a lawyer is an officer of the court, but don’t confuse this role as being synonymous with being a police officer. A lawyer, like any other citizen, may not to lie to the court – and if he does, the sanction will be more severe than would be suffered by a non-lawyer, but, also like an ordinary citizen, neither must he tell everything he knows. So, I wonder if JeffM would limit his rule to lawyers only, or would extend his rule to other citizens? If you know of a crime and fail to report it – say your boss cheats on his taxes, or you know of a theft—you should get “double the maximum sentence”, too? Are we all to be police officers now? Or should we expect greater confidence from lawyers than from other citizens?
What if you contract a venereal disease and have it treated by a doctor? Should the doctor be forced to – or even be able to – publicize the fact in order to protect the public? Which would be a greater betrayal of confidence – a friend of yours informs others that you have a disease, or your doctor informs? If there were a rule requiring doctors to publicize the diseases of their patients, would this make it more likely or less likely that people with diseases would seek medical treatment? I hope, JeffM, you’ll think about some of these questions.
RRH
One Spook,
I carefully read your 8:22 looking for what measures you would support to increase prosecutor accountability.
I agree that the perverted assumptions of race, class and gender are at the root of the Lacrosse hoax. I disagree that we can increase prosecutorial accountability by anything that is likely to be accomplished by trying to address those issues.
I start with the premise that convicting innocent people of serious crimes approaches absolute evil. For a prosecutor to intentionally be the instrument of injustice gets us the rest of the way there.
Therefore, while I acknowledge the practical consequences of opening prosecutors to limited civil liability, those consequences are, to me, acceptable.
My resolution is to make it very difficult to pursue a civil claim. Only those which can pass a high bar of pleading and evidence, as evaluated by a judge, would be allowed to proceed.
We have experience with this type of restricted litigation. Our securities laws give us a format which we may adopt.
In theory, there are some legal restrictions now. It is possible for the Justice Department, for example, to criminally investigate certain types of prosecutorial misconduct. However, in fact, there is often little justice here, as witnessed by the absence of reaction to any number of obvious prosecutor misconduct over time.
The Lacrosse hoax is an example. Despite the call for a criminal investigation of Mr. Nifong by, among others, then Senator Obama, nothing was done. A cynic might point to Mr. Steel's position as Under Secretary in the past administration as the reason the justice department did not investigate.
Again, no justice.
(Interestingly, I changed my support for the death penaly to opposition for exactly the same reason you did (plus the fact it was given disproportionately to blacks and hispanics)).
What we do not have is adequate accountability for prosecutorial misconduct. We are not at a place from which we want to "move on", as they say.
Jim Peterson
Anonymous said...
Those of you defenders of the status quo and "the system got it righters" among us ask yourselves.. Were it not for the internet, the media and the families, how would the insiders have handled Nifong? Would they have been so eager to string him up had they been cloaked as they normally are behind their victims' lack of resources and their normal snow job on the public that all accused are probably guilty anyway?
I daresay he'd have won re-election handily and RCD would be rotting in some lowly prison. Martyrs to "the system that gets it right".
2/10/09 1:52 AM
I give up. And I fear for the safety of the republic.
KC, I think the only hope now is if you could get Joe Cheshire or Brad Bannon to write something here. After all, who more than they can be aptly described as "insiders" in the lacrosse case? They can explain how without the internet the boys would be rotting in jail now and that the centuries-old judicial principles and procedures really had little to do with the boys' exoneration and the restitution of their fortunes and honor.
RRH
RRH
You ask me to think about you have to say. Certainly, asking someone to think is a fair and polite request.
You ask, "should [a] doctor be forced to disclose that a person has a venereal disease in order to protect the public?" You imply that the right answer is "No."
I say, "Yes." Let's make it more concrete. Person A has contracted HIV, a currently incurable and eventually fatal disease that is communicable. Person A's doctor should not be permitted to shield person A from embarassment if other's lives can be saved by disclosure to the proper authorities. Simple Benthamite calculus.
Similarly, if a lawyer knowingly lets a murderer loose amongst us, that should be considered a crime on analogous grounds. By the way, I suspect that if an ordinary citizen knowingly failed to disclose to the proper authorities that he had witnessed a murder and identified the murderer, that person would run a serious risk of being prosecuted under some theory or other. Seriously, if your client informed you that the client had witnessed a murder and could identify the murderer, would you really advise that there were negligible legal risks in suppressing that information. That may be good law, but if so, as I said before, the law is an ass.
JeffM
Jim, regarding your 11:44 AM comment:
In my comment, I did not mean to suggest that addressing the perverted assumptions of race, class and gender that we agree are the root of the Lacrosse hoax is in any way a solution to increase prosecutorial accountability.
Those are separate issues and I apologize if my comment caused those issues to be conflated.
My intent was to place the perverted race, glass, and gender assumptions as the root cause in this episode. I believe that a focus on prosecutorial misconduct and prosecutorial immunity detracts from that focus.
Indeed, Duke and the other civil defendants are presently framing their arguments in a large part on the false theory that "It was all Nifong's fault," and I think we, as careful observers of this case, need to keep the primary focus on the wrongs of all of the defendants in the civil suit. The wrongs of the co-defendants are in every way equal to Nifong's evils.
Now, back to the prosecutorial immunity question.
I agree with you that "convicting innocent people of serious crimes approaches absolute evil." I do not believe that the frequency of such actions by prosecutors merits opening prosecutors to limited civil liability, and I continue to believe that the consequences of doing so would be catastrophic to our system of law.
And, I think you do not sufficiently recognize that there presently exist limits to that immunity, outside of prosecutor’s "official duties," such as the precedent cases we have seen cited in the filings here that address a prosecutor’s liability in the conduct of "administrative duties," "investigative duties," and "public comments."
I agree with you that the US Department of Justice (DOJ) should criminally investigate the prosecutorial misconduct (and other parties’ violations of Federal Law) in the Duke case. And, despite my having beat this horse until I was certain that it was dead, allow me to comment on your statement, "Despite the call for a [DOJ] criminal investigation of Mr. Nifong by, among others, then Senator Obama, nothing was done." That statement is untrue. In true "bipartisan fashion," I will omit names and parties to explain why it is false.
Senator A replies in a private reply to a constituent's letter wherein he agrees with the constituent’s statement that a DOJ investigation into the lacrosse case is warranted. The constituent makes the letter public. That action by Senator A does not constitute having made “the call” for an investigation. Congressmen B,C, D, and E send letters to the DOJ requesting a criminal investigation of the Duke case. They make their letters public and their actions are reported in the media. They can be said to have made "the call" for such an investigation. Senator A, meanwhile, does not join his colleagues in their call for an investigation and makes no further comment on the issue.
To assert that Senator A has made "the call" for this investigation is patently untrue.
And, I am sympathetic for your concern that "What we do not have is adequate accountability for prosecutorial misconduct." The present system allows for complaints of prosecutorial misconduct to be filed with the State Bar. Assuming you are a member of the California State Bar, you could present your resolution there. California is the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases. Your reference is: California Rules of Professional Conduct, Chapter 5
One Spook
"Similarly, if a lawyer knowingly lets a murderer loose amongst us, that should be considered a crime on analogous grounds."
Then, on analogous grounds, we should dig up the corpse of Henry Ford and draw and quarter it. He was and is one of the world's worst mass murderers.
Ray Kroc, too.
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