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.
-----------
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.
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