Two names from the past in the news.
The H-S reports that the State Bar
disciplined former Nifong ADA Jan Paul, who left the DA’s office last year. (A
one-year suspension of her license to practice law was stayed.) Paul was
disciplined for abusing her authority as she prosecuted a case of alleged
sexual abuse of a child. When the child’s mother said she didn’t believe the
charges, and planned to visit the child that afternoon, Paul—according to the
Bar’s order—“instructed a police investigator to take out
warrants against [the mother] for aiding and abetting first-degree sex offense
of a child, accessory after the fact of first-degree sex offense with a child,
and aiding and abetting indecent liberties with a child.” The problem? She had
no reason to believe the claims were true.
The mother was nonetheless arrested—but an alert judge freed her on a Friday afternoon, and then dismissed all charges on the following Monday.
In an interview with the H-S, Paul described her decision to seek the arrest of someone without probable cause as a “mistake of law.”
Former ADA Paul, alas, is no stranger
to poor judgment. In 2007, she
attended Mike Nifong’s criminal contempt trial, nodding vigorously nodded
as Nifong’s attorney hailed his client’s truthfulness, and then weeping after her
ex-boss was found guilty.
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I have a post
at Minding the Campus detailing the latest activities of Wendy Murphy, who’s
demanding an investigation of the University of Virginia after a UVA
disciplinary tribunal (almost amazingly) found an accused student not guilty of
sexual assault. Explaining
her rationale to a local website, Murphy said that colleges are compelled
to convict when “[the accuser’s] accusations are
deemed credible, and [the accused student’s] denials are not described with the
same glowing terminology, she wins.” This is quite an extraordinary standard.
As for
the procedure that Murphy deems too easy
on the accused student? Here’s a summary:
First, UVA hires
investigators (as is perfectly appropriate) to look into all claims of sexual
assault. Yet while university procedures identify these figures as “neutral
fact-finders,” the investigators actually play a role that virtually anyone
outside the university would recognize as non-neutral. Investigators combine
the role of the police (interviewing all witnesses, “visit and take
photographs” as necessary, work with the local police) and the grand jury
(“determine whether or not there is good cause to investigate a hearing”). For
good measure, the investigators produce the equivalent of a grand jury
presentment (“a detailed written analysis of the events in question”). The
accused student can speak to the investigators but has no right to examine
evidence or to cross-examine witnesses at this stage. Would faculty members at
the UVA Law School consider the police and grand juries to be “neutral
fact-finders” in the criminal justice process?
Second, these
supposedly “neutral fact-finders” have a right to hold the “accused student’s
transcript” before the hearing even adjudicates the case. Yet the policy
confers no such right regarding the accuser’s transcript if the investigators
conclude that the accuser probably lied.
Third, the accused
student has a right to an advisor for the procedure—but this advisor is selected
not by the student but by the chairman of the judicial tribunal that will
adjudicate his fate. He can also have a secondary advisor, but this secondary
advisor “may not be an attorney.” University guidelines offer no explanation as
to why UVA considers attorneys to be so dangerous.
Fourth, the
accused student must present a list of witnesses before a pre-hearing meeting.
Yet the university, functioning in the role of prosecutor, has the right to add
witnesses at the hearing itself—after seeing the accused student’s list.
Fifth, the accused
student, through his non-attorney advisors, doesn’t even have the right to
cross-examine all witnesses—because, the university helpfully explains, “the
hearing will not follow a courtroom model, and formal rules of evidence will
not be observed.” If witnesses don’t appear, the board can accept their
statements as given to the “neutral” investigators—at a stage of the process in
which an accused student had no right to cross-examine even in the limited form
allowed by the tribunal.
Sixth, the power
of the accused student’s non-attorney advisor is limited in another critical
way—because the chair of the hearing, not the accused student, has sole power
to “determine the order” at which witnesses appear.
Seventh, in the
hearing itself, the accused student’s non-attorney advisor can submit
cross-examination questions for all witnesses—but cannot ask questions herself,
even of supposedly neutral witnesses. There is no guarantee that
cross-examination questions the accused student deems critical to his defense
will, in fact, be asked by the tribunal.
Finally, and in
line with the OCR mandate, the accused student is judged according to a
50.00001 percent preponderance of evidence standard, and if the accused student
prevails, the accuser can nonetheless appeal.
It’s nothing short of astonishing that, given
her record of fabrications on such a high-profile case as Duke, Murphy is
still taken seriously by either the legal community or the media.
