Showing posts with label ethics; media. Show all posts
Showing posts with label ethics; media. Show all posts

Thursday, March 20, 2014

Comments on the Balko Article

A few thoughts on the Radley Balko exposé that Mike Nifong might well have prosecuted, and convicted—an innocent man, and that he might have violated ethical norms while doing so. The man was named Darryl Howard, and he was convicted of 2nd-degree murder in 1995, in the killing of Doris Washington and her 13-year-old daughter, Nishonda. The Innocence Project has filed papers calling for a review of Howard’s case.

1.) It’s an extraordinary piece of journalism. Read it in its entirety. The piece is both a brilliant exposé and a damning indictment of Durham’s legal culture.

2.) The article gives the lie to Nifong’s oft-repeated claim in the 2006 primary and general election of his fundamentally ethical nature.

3.) Balko provides some interesting—and very important—context about the relationship between DNA evidence and Nifong’s conception of his role as prosecutor. Recall in the lacrosse case, Nifong at first said that the DNA test results would be decisive, but then, when the tests came back negative, he dismissed the importance of DNA in deciding cases the “old-fashioned” way. (He also, of course, sought out Dr. Brian Meehan for additional DNA testing, the results of which he falsely portrayed in court.) The theme here, however: Nifong was a prosecutor who seemed to believe that he didn’t need to adjust his theory of the “crime” to accommodate unimpeachable scientific evidence.

So too in the Howard case. The operating theory of the crime was that the killer raped the Washingtons before killing them. Semen was found on the girl’s body—but after testing that occurred following the arrest, it didn’t match Howard’s. Nifong plowed ahead anyway, continuing the murder case against Howard but simply dropping the theory that a sexual assault was tied to the crime. (Instead, incredibly, he suggested that the 13-year-old girl was sleeping around, and the semen was her boyfriend’s.) As Balko noted, “Such test results might have persuaded a conscientious prosecutor to at least consider the possibility that he had charged the wrong man, especially considering the statement from the informant. At the very least, it would seem to mean they needed to change their theory, and consider the possibility that Howard didn’t kill the women by himself.” Of course, Nifong was not a conscientious prosecutor.

4.) At the heart of Howard’s case is what Balko terms “a credible statement from an informant days after the murder who attributed the crimes to a local gang, not to Darryl Howard,” which Nifong might have withheld from the defense. If Nifong did so, he committed a Brady violation—hardly a surprising move from such an unethical man. But, as Balko notes, Howard’s lawyer hasn’t kept the case file, and can’t say with 100% certainty that Nifong or the police withheld the document.

That doesn’t excuse Nifong, however. Either he committed a Brady violation; or he did turn over the document but never read it, even though it undermined his case. The latter is a possibility—recall during the case he claimed that his regular approach was to pass his entire file onto defense attorneys without bothering to read its contents. So, regarding the Brady document, Nifong was either outright unethical or so lazy as to be unethical.

5.) The Balko article also reveals dubious conduct from the Durham Police Department—in this case from a detective named Darryl Dowdy, who allegedly pressured witnesses to bolster Nifong’s case and ignored obvious leads that a gang, and not Howard, might be responsible for the murders. Should anyone be surprised that a department that kept Mark Gottlieb on the force for two decades had more than its share of ethically challenged law enforcement officers?

5.) Howard’s lawyer was Woody Vann (who had also once represented Crystal Mangum). Yes, the same Woody Vann who frequently appeared on cable news in 2006 defending Nifong’s integrity. The man who told the AP in summer 2007, “Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won.” Vann said that even though he represented a client who may very well have been sent to jail for murder as a result of Nifong’s unethical conduct—and who, he told Balko, Vann himself believed was innocent.

6.) As I often said at the time and repeat today, Jim Coleman was one of the heroes of the lacrosse case—he spoke truth to power when few in Durham were willing to do so, and when the easiest thing for him (personally and professionally) would have been to have remained quiet. Some of his comments since the case ended, however, have been a little odd. For instance, he bizarrely compared the Forsyth County DA to Nifong—even though, in the case in question, the prosecutor wasn’t even accused of ethical misconduct, much less the sort of massive misconduct associated with Nifong.

In the Balko article, Coleman says, “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” That’s largely true when describing the (almost exclusively out-of-state) conservative journalists who defended the lacrosse players. But did Coleman expect otherwise? The time to have engaged the conservatives who were active on the case (again, not a terribly large number) was during the case itself. Events in Durham provided a perfect opportunity for a cross-ideological alliance in favor of due process. But at the time, the state NAACP, the Group of 88, or groups like Durham’s People’s Alliance weren’t interested—they were too busy either outright defending Nifong or ignoring his abuses. What’s the excuse for the continued silence of such groups? These figures supposedly favor due process. Or were they so compromised by their de facto alliance with Nifong that they’ve chosen to just move on?

But Coleman also accused the “players and their families” of declining “an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” This is an outrageous statement. The one group that clearly has been concerned with these issues were the falsely accused players, their families, and their attorneys. They pushed for reform in Durham (even as the Whichard Committee was quickly shut down), and reform has been a central element of their lawsuit against the city before the 4th Circuit provided a procedural cover to Durham. They’ve been active with the Innocence Project. Reade Seligman—who has said he went to law school in large part because his own experience convinced him of the need to be able to help others who are falsely accused—and Jim Cooney have frequently spoken about the case.

I understand that Coleman’s statements in the lacrosse case caused him some professional discomfort with allies, and perhaps in attacking the falsely accused players’ character he’s now trying to rehabilitate himself with them. Nonetheless, I would hope that Coleman would issue an apology to the players and the families.

7.) It’s worth reiterating: even after Nifong’s abuses, the voters of Durham County elected the ethically challenged Tracey Cline as their chief prosecutor. And the frontrunner in this year’s DA primary is a Cline protégé.


8.) Finally, to repeat: the Balko article is amazing. Please read it.

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.

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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.