Tuesday, November 27, 2012

Murphy, Paul, and Due Process

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.


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.

Sunday, November 04, 2012

Penn State, Duke

Former Penn State president Graham Spanier was indicted last week; I wrote about the move at Minding the Campus.

The move came as little surprise, given the evidence against Spanier uncovered by the Freeh Report. Indeed,  perhaps the most noticeable aspect of the grand jury presentment against Spanier was how closely the document tracked--in terms of evidence and basic argument--the Freeh Report.

As I have noted previously, a variety of campus figures--including, perhaps most troublingly, a group of former leaders of the Penn State faculty senate--criticized as flawed the Freeh Report, even as they steered clear of identifying exactly what the report had gotten wrong. To date, it appears that few (if any) have criticized the line of argument offered by the AG--even as they have also declined to retract their previous criticism of the Freeh Report.

It goes without saying that Duke has never provided an explanation as to why the university elected not to engage in the type of critical self-reflection that a Freeh-style investigation entailed, and instead stood behind the fatally flawed Bowen-Chambers committee report as the sole official investigation of how and why the administration mishandled its response to the lacrosse case.

On another front, and for those interested: Duke's crusade has attracted the attention of the Maine media.