Ironically, on the very day that the post below came out, a major report from the Justice Project appeared, using Nifong and the Stevens prosecutors as the two specific examples of prosecutorial misconduct in recent years.
I agree completely with the report's recommendations--especially its sympathic view toward open-file discovery--although its description of the lacrosse case seems a bit off the mark. The authors write, "The reports indicated that DNA evidence found on the victim did not match any of the three defendants in the case." The only "victims" in the lacrosse case, of course, were those victimized by Crystal Mangum's false claim of rape.
The report adds, "There are dozens of cases in which misconduct identical to Nifong’s have resulted in wrongful convictions and imprisonment." There certainly are "dozens of cases" in which misconduct "identical" to one element of Nifong's has "resulted in wrongful convictions and imprisonment."
I'm not aware, however, of "dozens of cases" in which a prosecutor has: (a) made numerous inflammatory, unethical statements to the national and local media; (b) ordered the police to violate their own procedures for a lineup, after a lineup loosely following procedures didn't yield any ID's; (c) withheld exculpatory evidence; and (d) outright lied to the judge about the content of that exculpatory evidence.
The full report is here.
27 comments:
KC,
I was tempted to write a one sentence comment last week "Is Stevens a laxer?" However, I am glad that I didn't; the cases are, as you say, quite different.
Would you clarify what you mean in paragraph three by "one element?"
Chris
Prescient, as always!
I think that Nifong's conduct stood out because of the outright brazenness of his lying. Everyone knew he was lying, but he did it and the judges, at least for a while, let him get away with it.
We should not forget that other "Stephens," Ronald. He was the one who signed off on the fishing expedition known as the NTO, which he knew was unconsitutional.
(I suspect that he and Nifong thought that the players would fight it, and then Nifong could rail on about how that was "proof" that the team was giving a "wall of silence." When they showed up en masse and cooperated with the police investigation, my sense is that Nifong and Stephens were shocked and then cooked up another strategy.)
I agree with K.C. on the point that the lacrosse case and the Ted Stevens prosecution were quite different in the respect that in the former, there were no criminal acts of rape and assault committed by the lacrosse players, while in the other case, no one disputed the evidence per se, but the question was whether or not the work on the house constituted an unreported gift. Indeed, in most federal criminal cases, the facts generally are not in dispute.
However, in federal cases, jurors are supposed to decide if those acts constitute a crime. In reality, the burden of proof in federal court is much lower, which is why federal courts are conviction machines. Since nearly anyone can be charged with federal crimes, it is a system that operates on the assumption that everyone is a criminal just waiting to be caught.
However, they are similar in that in both cases, the prosecution brazenly lied, withheld evidence, suborned perjury, and generally acted as though they were untouchable. If you see the picture of Brenda Morris in the Washington Post, she is smirking in almost identical fashion to Nifong when he went to court. It is clear that she was not worried about being caught with her hand in the cookie jar. In fact, she did it in plain sight and then dared the judge to do something about it.
The larger problem is that prosecutors have immunity, and as long as we have a situation in which people bringing the charges are legally invulnerable, we will get this conduct. Americans in general do not have the moral compasses that people even a generation ago had as a matter of course.
It is not just in law. Compare the sense of right and wrong that K.C. Johnson possesses with the moral compass of William Chafe or Houston Baker. On one side, you have a person with a conscience and on the other side, you have arrogant liars.
From The Report
...The first step towards enacting an effective system of prosecutorial accountability must come from prosecutors’ offices themselves.
::
That would put the G88, Pot-Bangers and their friends and co-corkers on notice that 'community standards' are going to be considered after the facts are digested.
Community standards do not trump the truth.
Even if the loudest and meanest 'oppressed' people in Durham don't like young, privileged, white males from the East Coast...who swagger from time to time.
Facts matter.
::
GP
There's another side to the mis-use of prosecutorial discretion. That is the failure to investigate and/or charge someone when a crime has been committed. This can be a particular problem in white collar crime, when the facts are complex.
E.g. I know of companies that failed where rumor had it that top management had committed various infractions, but no investigation was ever conducted.
In another case involving a well-known company, a key person was not charged as part of an alleged conspiracy. Those charged were all found guilty and sentenced to a combination of prison time and substantial fines. This key person was named by the judge as an "unindicted co-conspiritor". That might be embarassing, but he won't be punished like the others. AFAIK there has been no public explanation of why this individual was not charged along with the others.
On page 16, the report states that "confirmation bias" and "belief perseverence" are two psychological factors that contribute to prosecutorial misconduct. In the lacrosse case those factors also probably played a big part in the outpouring of animosity towards the players from everyone from Nancy Grace to the NY Times to so many people at Duke and in Durham.
Ken Duke
On the previous comment thread, in addition to Bill's very insightful comments about the dangers of both federal and state prosecutors' power, RRH, on 4/14/09 @ 10:45 AM, offers outstanding context and an accurate comparison of the Nifong prosecution and the prosecution in the Stevens case from the standpoint of legal practice.
I would disagree with RRH on this point: I believe Nifong was “actually in possession” of exculpatory evidence in the written report provided to him by Dr. Brian Meehan, director of DNA Securities Inc. IIRC, that fact was revealed during Brad Bannon’s cross-examination of Meehan in December 2006, an event I like to call Nifong’s hamartia.
And, RRH’s comments reveal yet another nexus between the lacrosse case and the Stevens case --- that of incompetent, misleading, dishonest and biased reporting by the media.
Consider the lede sentence in the Washington Post report KC linked: ”The Justice Department team charged with prosecuting former senator Ted Stevens miscalculated by not seeking more time to prepare for the high-stakes corruption trial …As RRH points out, it was not a “corruption trial” at all --- Stevens was charged with a failure to report a gift. Readers of newspapers deserve more accurate, honest, and unbiased reporting than this report, but that is not what the dead tree media is concerned with today.
And, justice should be dispensed on an equal basis.
Thus I ask: Why hasn't the Obama Justice Department initiated an investigation of the Duke lacrosse rape hoax?
Given that the Bush Justice Department prosecuted both Stevens (R-AK) and Rep Randy "Duke Cunningham" (R-CA) why doesn't the Obama Justice Department prosecute Rep. John Murtha (D-PA)?
The FBI is now investigating a defense lobbying firm with close ties to Murtha who also had a reported role as an un-indicted co-conspirator in the Abscam bribery scandal.
Where is an investigation of Charlie Rangel (D-NY)?
I have absolutely no sympathy whatsoever for Stevens or Cunningham, but where's the justice for other corrupt elected officials?
One Spook
"Thus I ask: Why hasn't the Obama Justice Department initiated an investigation of the Duke lacrosse rape hoax?"I don't know.
Perhaps you can haul your insane a$$ and stalk every forum in the Triangle asking that same question.
Scream a little louder.
Someone in China hasn't heard that godforsaken mantra yet.
I'm sure Timothy Tyson would be glad to answer that question for you if you will only provide comfort for him as you've done so effortlessly in the past.
By the way, I fear that this question has evolved into a tic.
Just record it and push a button next time.
I'm wondering how KC or others on this board would rate Ronnie Erle of Texas? I would put him in the top 10 of politically motivated prosecutors.
This page on Nifong and especially the comments below it are interesting.
Must be from 2007 when it was clear Nifong would be disbarred.
Still, there was someone on this page saying that Reade, Collin, and David specifically hired women of another race to abuse them.
In truth, they most certainly did not ask for black strippers.
So much of what was allowed to be reported in the media will forever be believed by some people.
To the 7.12:
Per KC Johnson:
"Many thanks for your kind words. I've always found, however, that pointing to specific pieces of evidence--rather than simply making ad hominem attacks--is a more effective line of persuasion."
"You are sounding rather angry; I apologize if I or any readers of the blog have distressed you."
"I note that you provided no specific examples of my "[provid[ing] comfort for him.]"
"As for your other insinuations: I urge you to visit Roswell, where you can join the search for the remnants of the lost UFO."
Per Mark Twain:
"Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."
One Spook
Ha!
This latest from Saunders is a glimpse into the true story of the (Duke/Durham--town/gown) relationship.
This one is really funny.
Duke tries so hard, but they still can't hide the fact that they want to separate themselves from the town.
"Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."Indeed.
Maybe you'll conjure up the memory of those words next time you're trolling over at The Chronicle....eh?
To the 9.47:
Per KC Johnson:
"I note that you provided no specific examples of my "[trolling over at The Chronicle]"
One Spook
While K.C. is right about the outward appearance of lies and withholding evidence that Nifong projected, nonetheless much of the prosecutorial fraud in the courts is done under the guise of forensic science. Radley Balko of Reason Magazine has published a number of articles on such fraud in Mississippi and Louisiana, including this one:
http://www.reason.com/news/show/131972.html
Here is another piece that deals with such fraud:
http://www.reason.com/news/show/122458.html
None of these prosecutors were as open about their fraud as Nifong. Instead, they treated Steven Haynie as a real-live, bone fide expert instead of the lying fraud that he is. Prosecutors used this guy because he always would give them the results they wanted.
If we want to get serious about this kind of evil -- and that is the only word to use -- then we have to revisit thousands and thousands of criminal cases. Unfortunately, we won't do that, and innocent people or fraudulently convicted people will languish in prison until they die.
The situation is very serious, but the people who are in authority -- both Democrats and Republicans -- do not care a whit about this problem. That is the reality of criminal justice in this country today. Sad but true.
This is simply outrageous.
If Holden Thorp doesn't assert himself, he should be fired.
Any illusions that Duke is the only place in the Triangle where basic human rights are in danger, just read this:
UNC protest grows unruly at Tancredo speech
By Dan E. Way : The Herald-Sun
Apr 15, 2009
CHAPEL HILL -- UNC Chapel Hill police used pepper spray and threatening gestures with Tasers to chase a hostile and raucous crowd out of Bingham Hall Tuesday night in an effort to allow former Republican presidential candidate Tom Tancredo to speak about illegal immigration.
But minutes later, amid obscenity-laced catcalls from the unruly audience and protesters banging so violently against windows from outside the meeting room that one shattered, spraying seated students with bits of broken glass, Tancredo announced, "That's it," and left the room with a police escort, just a few short minutes after he began his remarks. Police then cleared the building as a fire alarm, pulled apparently by a protester, buzzed incessantly and the angry students assembled outside to chant and hurl insults at police for abusive methods.
The most serious unrest occurred after two young women walked to either side of Tancredo and unfurled a large banner proclaiming "No dialogue with hate" that concealed the speaker from the audience. Authorities asked them to leave. When they refused, they were physically led into the hallway, prompting heated reaction from a throng of protesters there that resulted in the pepper spray. Inside, a woman heckler who said she was a faculty member, screamed, "There's no need for Tasers here." Police Lt. Lawrence Twiddy said no arrests were made.
"It's a fascinating thing. Colleges are supposed to be the marketplace of ideas," Tancredo said two hours after he called off his speech. "I wonder why institutions of higher education continue to produce people who can't think critically."
Tancredo said he could think of no more appropriate term for the protesters than "student fascists," drawing a comparison to Hitler Youth. "You look at what happened in Nazi Germany in the 1930s, how people were shouted down and not allowed to speak."
Riley Matheson, founder of the UNC chapter of Youth for Western Civilization, which sponsored Tancredo's visit, also was shouted down as a racist in bursts of profanity by the audience while trying to introduce Tancredo.
"It's a shame that we can't have a civil dialogue on this campus without having hate groups, fascists, coming in and trying to shut us down. At this point, [UNC Chancellor Holden] Thorp needs to do something about this. The chancellor needs to take control," Matheson said. "If we had conservative students doing this kind of thing -- of course, conservatives don't do this kind of thing -- we would be severely disciplined by the university, and we expect the same to happen with these liberals."
Attempts to reach Thorp for comment were not successful.
The protesters -- many of whom were with Students for a Democratic Society, which announced beforehand its intent to disrupt Tancredo's speech -- defended their tactics.
"I think that it's a very direct and pointed way to get your point across," said Collin Warren-Hicks, a sophomore English major from Mebane, as a nearby protester shouted into a bullhorn, "Death to Western civilization," and a chant went up "Yes, racists, we will fight, we know where you sleep at night."
"I don't really know of another way to handle it," Warren-Hicks said, accusing police of being the party guilty of outrageous behavior.
"They pepper sprayed my girlfriend, and it got in her eyes, and she was having trouble breathing. Then they chased the students out with a Taser," Warren-Hicks said.
Lizette Lopez opposes Tancredo's beliefs about immigration reform and his opposition to allowing students who are not legal residents to receive in-state tuition rates. But she said "nobody won" with Tancredo being shut down.
The senior psychology major from Asheville, whose parents are from Honduras, nearly saved the night by pleading with the crowd to calm down and hear Tancredo out after the two protesters were removed. Tancredo promised to hear points of view from her group, the Carolina Hispanic Association, if he were allowed to talk first. Tancredo had just resumed his speech when another set of protesters raised a banner in front of him, resulting in a brief tug of war between the former Colorado congressman and one of the young women, before the window was shattered and the event canceled.
"Honestly, we were the ones who had more at stake" than the vocal protesters, Lopez said, calling it "depressing" that freedom of speech lost the night.
H-S letter:
Crime information
As a fairly new resident of the Triangle, I am concerned that Durham does not give out FBI police crime information.
Is it because if parents of college children really knew about Durham; they would send their children to UNC?
ANGUS MCKILT
Durham
April 15, 2009I don't know.
Looks as though they're being attacked at UNC-CH as well.
This is really something.
Video 1 of UNC event being interrupted by far left.
Video 2
this is relevant to Duke Lacrosse Hoax (and Indoctrinate U documentary, that featured KC too):
"Protest stops Tancredo's UNC speech"
http://www.newsobserver.com/news/immigration/story/1486087.html
Unfortunately, this sort of fascism is going on and supported by the people who are in charge of things in academia (and the country). Klan88 and their ilk decide what are allowed topics. Everything else (such as conservative opinions) are forbidden and will be prevented. If this country looses free speech, it is the end. I think libs should be wise to remember, that if fascism wins, one day they too may pay the price. Of course, I understand that not all liberals support this sort of fascism. Not sure what the right term is for Klan88 and their ilk (neo-liberals, lib-fascists?). It is frightening that Dept of Homeland Security has now labeled conservatives who oppose amnesty and high spending "terrorists" and is monitoring them. I think this country needs an organization devoted to civil liberties.
Here's a link to the latest university dust-up over free speech.
The fringe are now resorting to violence.
bill anderson 4/15/09 :: 8:26 AM said...
...While K.C. is right about the outward appearance of lies and withholding evidence that Nifong projected, nonetheless much of the prosecutorial fraud in the courts is done under the guise of forensic science. Radley Balko of Reason Magazine has published a number of articles on such fraud in Mississippi and Louisiana, including this one:
::
Is Radley Balko a boni fide expert? He (The Agitator) is 33 years old, an American Libertarian writer and speaker with a B.A. in Journalism from Indiana, University (1997). And he was a SENIOR editor with the Libertarian Cato Institute.
Why would anyone care a whit about what Radley Balko has to say about anything...especially since what he has to say is not directly relevant to the Duke University Men's lacrosse rape hoax?
If the Libertarians here want to run an ad for the Libertarian Party just sign-in to Google with your Libertarian Handle. Seems reason(able) to me.
::
GP
This is a fun column by Augustus Cho.
He's an Asian and a conservative who seems to delight in stirring up the far left in the area.
Hilarious.
In answer to GP, I do not apologize for putting Radley Balko's articles on the web, and I think he has done heroic work. Radley did personally support me while I was writing on the Duke lacrosse case, and he recently served as the editor to the article Candice Jackson and I had in Reason on federal prosecutions of high-profile sports figures.
Radley was able to uncover fraud in forensics in Mississippi and to point out prosecutorial abuse that has put innocent people on death row. Indeed, the Duke case touched on the larger issue of how prosecutors are able to defraud the system -- and get away with it.
So, no apologies at all. I think I have some credibility on the subject and certainly have credibility in the Duke case.
Gary,
To answer your question about the connection to the lacrosse case, let’s take the case of Patricia Stallings. She was convicted of poisoning her infant son Ryan with ethylene glycol and sentenced to life. As a chemist, I can point to several things that the labs doing the gas chromatographic analysis did wrong: One failed to run a standard of ethylene glycol at all, and the other did not follow up when their ethylene glycol standard was close, but not identical, in retention time to the unknown compound in Ryan’s blood. Had they added a small portion of ethylene glycol to their unknown they would have seen two peaks in time, not one, demonstrating that the unknown was not ethylene glycol. I use this case in a couple of my classes as an example of how not to do chromatography.
While on trial Patricia Stallings became pregnant again, and David, (who was removed to foster care) developed the same symptoms as Ryan did. Upon hearing this, a biochemist and a geneticist became interested in the case, and they showed that David had a rare inherited metabolic disease that caused an elevation of propionic acid in his blood, and they ultimately showed that Ryan had the same disease. Propionic acid, not ethylene glycol, was the unknown compound in Ryan’s blood. There is a 25% chance that any child of these two parents would have this genetic disease. Ultimately Patricia Stallings was exonerated and released.
However, her release only happened because of two unlikely events, the birth of a second son with the same disease, and experts who became involved on their own accord. If Patricia Stallings had been wealthy, paying for expert testimony would probably have freed her much earlier. Just so I am not misunderstood, the problem is not that RCD came from upper middle class backgrounds (thank goodness that they did), the problem is that most defendants do not, and therefore cannot counter the faulty or fraudulent forensics of the kind that Bill is referencing. I am interested in how the Duke case illuminates problems in the justice system, and sometimes I find it helpful to contrast one case with another. Perhaps that is why I take a broader view about what is germane than perhaps you do. Best regards.
Chris
Chris 10:00 PM:
How Patricia Stallings was convicted and then exonerated : http://www.justicedenied.org/patriciastallings.htm
The differences between the Stallings case and the LAX Hoax are significant. In Stallings:
1) Six months after conviction, the District Attorney petitioned the judge for a new trial. Petition was granted, with the judge's comment, "This is the first time I have ever known this to happen. It's unheard of for a prosecutor to acknowledge ineffective counsel."
It was the PROSECUTOR who pushed for a new trial, based on questions raised by experts reviewing the lab tests.
2) The lab tests were done by the hospital treating the child, and by St. Louis University.
Dr. William S. Sly, professor and chairman of the Department of Biochemistry and Molecular Biology at St. Louis University
happened to watch "Unsolved Mysteries" and instantly realized that no other tests had been performed on Ryan's blood. He ordered additional testing on the blood sample, and the results were reported to the Prosecutor.
In his letter Dr. Sly reached three important conclusions:
1.) They confirmed the absence of ethylene glycol in blood tests performed before Ryan Stallings' untimely death.
2.) They confirmed abnormal elevations of organic acids in Ryan's blood serum, which made the diagnosis of MMA virtually certain.
3.) Dr. Sly confirmed that one of the compounds in Ryan's blood, which are elevated by MMA could be confused with ethylene glycol when the older gas chromatographic testing techniques were used.
The point is, the Prosecutor was key in correcting the miscarriage of justice. The original defense attorney did NOT question the lab results. The labs involved made mistakes on "match" that was close (but different).
But Mrs Stallings could EASILY have spent the rest of her life in the slammer .. she just "lucked out" that
(1) her 2nd pregnancy ALSO sadly resulted in a child with the same genetic disease (odds against this are 3:1).
(2) A senior biochemist took an interest in the case.
(3) The prosecutor sincerely sought justice, and made the rare motion for a new trial of a convicted person.
Chris makes an excellent point. I remember a case in Tennessee years ago in which a young couple had a children taken from them because the government was alleging abuse. However, it turned out that the child had a rare disease.
It must be a nightmare to have the powerful prosecutors accuse you of something you never did. Think of the tyranny that creates, yet it goes on.
In the case Chris explains, it was not fraud, but rather faulty science. People serving on juries need to know that government forensic experts don't necessarily have absolute knowledge!
Duke Dad,
At first I thought that the prosecutor in the Stallings case got to the party a little late, but I am coming around to your point of view, that he deserves much praise and little, if any, blame (though I am not entirely comfortable with the actions of the trial judge). However, there were some clues early on that the lab results deserved closer scrutiny than they received. One commentator has ascribed the problem to expectation or "context" effects in which data are interpreted in light of prior theories:
http://www.rswa.org.au/content/work/archive_files/proceedings_files/pdf/07/RSWA_proceedings_2007_07.pdf.
To counter this investigator bias, I am tempted to suggest (in jest) that when poisoning is suspected, the investigators should submit a list of three compounds (with two being fillers) to be tested for. I don't think it is a realistic suggestion, but it does make an interesting if facile parallel with the lacrosse case.
Bill's point is well taken; the forensic work in the Stallings case was slipshod, not fraudulent. However, my PhD advisor told us that there is no bright line between sloppy science and fraudulent science. It is a sobering thought for this chemist.
Chris
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