Updates

A couple of notes:

(1) For those interested, I have a long piece at Minding the Campus examining the overall decline of due process involving campus allegations of sexual assault—and asking why colleges are so reluctant to treat rape what it is: a crime. In short, a combination of pressure from the Office for Civil Rights, a general indifference to due process by some administrators, and an aggressive attempt by campus ideologues to introduce a system that makes rape convictions easier explain the development.

(Update: I also have a shorter MTC piece on poor coverage of procedure in the media, including some Group of 88-like tweets from a Journalism professor.)

(2) An interesting item a few weeks ago from the Supreme Court. The Court declined to hear the appeal of a case called Martin v. Blessing, where the issues included what Justice Alito termed the “highly unusual” practice of a New York district court judge, Harold Baer, of setting racial and gender quotas for attorneys in class action cases. (Baer, it seems, would fit right in with the Group of 88.) The Court chose not to hear the appeal, but Alito penned an interesting opinion strongly condemning Baer’s practice, what Scotusblog’s Tom Goldstein described as “a warning shot that some anomalous practices should be stopped without the Court ever having to get involved.”

Alito’s opinion was interesting for one other reason. The justice commented that, to the best of his knowledge, Baer was the only federal judge who demanded that law firms in class action cases before his court employ racial and gender quotas in “The uniqueness of this practice,” Alito wrote, “weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.”

We’ll likely never know why the Supreme Court declined to hear the appeal of the 4^th Circuit’s ruling to let Durham off the hook in the lacrosse civil suit. But it’s worth noting that Alito’s observation would seem to apply to the facts of the lacrosse case as well—it’s extremely rare, almost unprecedented, in recent years to have a prosecutor usurp control of a police investigation (with the cooperation of police higher-ups) and then manufacture evidence to obtain indictments, which were critical for his short-term political goals. Perhaps the Court simply concluded that since we weren’t likely to see a Mike Nifong again anytime soon, the “uniqueness” of the lacrosse case’s facts weighed against review.

That said, the denial left in place the deeply flawed 4^th Circuit ruling, holding that at least in the circuit, no federal civil rights violation occurs when a prosecutor conspires with police to frame innocent people, provided that the police are candid in discussions with the prosecutor that no real inculpatory evidence exists—and the prosecutor obtains a grand jury indictment, even if the police mislead the grand jury about the nature of the evidence.

[Update, Fri., 9.47am: Those wishing a chuckle can examine the ravings of pro-Nifong crank Sidney Harr (whose Justice for Nifong committee roster includes convicted murderer Crystal Mangum). Harr and the Duke attorneys can battle it out between them.]

Hat tip: J.R.