The Grand Jury

Today’s Charlotte Observer brings an eye-opening article—including quotes from Joe Cheshire and Jim Cooney—about the sorry nature of North Carolina’s grand jury system. An institution that supposedly protects the rights of the accused, Cheshire and Cooney both suggest, does no such thing.

The article focused on the case of Randall Kerrick, a North Carolina police officer who killed an unarmed, African-American man. A Mecklenburg County grand jury initially declined to indict Kerrick, but the attorney general (who’s prosecuting the case because of a conflict of interest in Charlotte) then took the case to a second grand jury, which returned an indictment for voluntary manslaughter.

The scandal came in the daily record for the grand jury that indicted Kerrick. That day, it heard 275 other cases, and returned indictments in all 275. In an interview with the paper, Cheshire termed the “entire system . . . a joke,” noting that “there is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.” Cooney added that grand juries no longer protect the accused, but instead function by handing “out indictments like they’re boxes of popcorn.”

Cheshire also revealed some information about the lacrosse case grand jury, reporting that he had heard the body returned indictments—again, for a crime that never occurred, and in the police manufactured inculpatory evidence—in all of four minutes. ABC’s Law & Justice Unit had previously touched on some of the grand jury’s attitudes.

It’s worth recalling, moreover, that the grand jury that indicted Reade Seligmann and Collin Finnerty did so on the basis of false information. As former DPD Sgt. Mark Gottlieb confessed in his deposition for the Nifong ethics trial, he told the grand jury that Crystal Mangum never changed her story about the night of the party after she got to the hospital. In fact, the false accuser and now-convicted murderer never told the same story twice. What might have happened, for instance, if Gottlieb had told the grand jury that Mangum had identified four, rather than three, perpetrators in the rigged departmental photo array? Or if she twice claimed to have recognized a lacrosse player that wasn’t even at the party?

By the way, absent Gottlieb’s revelation, we never would have known the grand jury was presented with incorrect facts, since in North Carolina, there’s no record of what’s said to the grand jury.

The Observer also features UNC professor and former federal prosecutor Richard Myers, who said that he “believed” in the institution of a grand jury to protect citizens’ rights, just as he believed in the value of a fire extinguisher.

The comparison is hard to take seriously; indeed, two examples from the lacrosse case demonstrate how grand juries can actually harm the accused. First, if Mike Nifong hadn’t gone to the grand jury, he would have needed to pursue a probable cause hearing. And so, in the midst of the primary campaign for DA, grand jury secrecy prevented the public from knowing the weakness of the prosecutor’s case.

Second, the 4^th Circuit panel used the excuse of the grand jury (operating from false information) indictment as one of the grounds for letting the city of Durham off the hook in the civil suit filed by the falsely accused players.

But apart from the specifics of the lacrosse case, grand juries can harm anyone who’s indicted, since too many people poorly understand the judicial system, and assume that a grand jury indictment implies guilt. Nonetheless, you’d expect a major newspaper—such as, for instance, The Guardian—to have a sense of what grand juries do. It appears not—as this item from Brad Bannon’s Tumblr reveals. 

Litigation Issues

Three litigation matters that have tangential relationships to the blog’s themes.

First, this morning’s New York Times reports that Yale (undisclosed amount) and New Haven ($200,000) have reached a settlement with James Van de Velde, a former Yale lecturer falsely accused of murdering a Yale student named Suzanne Jovin, whose thesis Van de Velde had supervised. Both New Haven and Yale denied any wrongdoing, though it’s safe to assume that they didn’t fork over six-figure amounts out of the goodness of their hearts.

In 1998, Van de Velde was a popular lecturer, but after the allegations was transformed—as the Times notes today—into a “pariah.” Even though he was never charged with any crime, he was removed from the classroom by then-Yale dean Richard Brodhead. Justifying his decision in a 1999 interview with New York Times Magazine, Brodhead remarked, “The presumption of innocence is not a trivial thing.”

Indeed.

Brodhead demonstrated his commitment to the presumption of innocence not merely by removing Van de Velde from the classroom, but by informing him that any letter from Yale would have to mention “the intervening controversy.”

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Second, as part of its (mercifully unsuccessful) crusade to weaken the First Amendment protections of all newsgatherers in Maine by forcing me to turn over confidential, unpublished exchanges with sources, Duke sought to neuter a First Circuit case called Cusumano v. Microsoft. The ruling provides substantial protections—along the lines afforded to journalists—for professors in the First Circuit.

Acting at the behest of treaty-related demands from Britain, a U.S. government filing against Boston College threatened to do what Duke could not—undermine Cusumano. The case, which involved oral histories of former IRA members, began when the professors who conducted the oral histories did not retain possession of them (such a move isn’t necessarily uncommon), and instead deposited them in the Boston College library. But initially BC (unlike my experience in the Duke case, or most journalists who receive such subpoenas) didn’t resist a government subpoena to other oral histories in the collection, which complicated the case. A district court ordered BC to turn over 85 of the oral histories to the British government.

On Monday, the First Circuit ruled that the district court “abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.” It substantially narrowed the scope of the subpoena (to 11 oral histories), and made clear that Cusumano remained good law in the circuit.

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Finally, last week came the latest in the Paterno family’s effort to restore the tarnished reputation of the late Penn State football coach. The family, along with some family-aligned trustees and former football players, filed suit against the NCAA. As Yahoo’s Dan Wetzel perceptively observed, although the NCAA is the named defendant in the lawsuit, a better title would be “Paterno v. Penn State,” since the suit appears to flow from the Paterno family’s rage that the current Penn State administration launched the Freeh Report and then accepted the report’s findings.

The suit itself offers no new information, contending instead (as the family and its representatives have before) that the university should have adopted wildly counterintuitive interpretations of the evidence that Freeh recovered, or that the NCAA’s decision to accept the university’s investigation rather than to conduct its own inquiry violated the late Paterno’s due process.

From an academic standpoint, however, the lawsuit’s most interesting item is that four Penn State professors—Associate professor of hospitality management Peter Bordi, Professor of geosciences Terry Engelder, Professor of education Spencer Niles, and Assistant professor of hospitality management John O’Donnell—signed on as plaintiffs.

Federal courts have strict rules regarding standing. In cases such as the Paterno lawsuit, plaintiffs must be able to demonstrate some sort of injury that the courts can redress.

The lawsuit itself makes two such standing claims. First, that “the Consent Decree [between the NCAA and Penn State] has interfered with the administration of Penn State, and limited the faculty’s ability to attract and retain high-caliber faculty, administrators, staff, and students, which has reduced the value of the faculty’s own positions and their ability to compete within their fields.” I’m sure everyone is eager to hear how NCAA sanctions against the football program have prevented the school from attracting “high-caliber” professors of hospitality management.

Second, that “the imposed Consent Decree is an indictment of the entire Penn State community, including individual institutional leaders, members of the Board of Trustees, those responsible for and participants in athletic programs, the faculty, and the student body. The Consent Decree charges that every level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”

I’d say the participation of Professors Bordi, Engelder, Niles, and O’Donnell in this lawsuit provides a pretty good sign of how at least the academic “level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”

Updates

Two follow-ups on recent posts.

First, an interesting column in the Chronicle from Andrew Beaton, reflecting on the Duke lacrosse team’s recent national championship victory over Syracuse. Speaking to both current coach John Danowski and two of the team’s star players, Beaton learned that from recruiting to current media coverage, the legacy of 2006-7 remains.

“The scandal may never go away,” wrote Beaton, “and it may always be among the first few results for ‘Duke lacrosse’ in a Google search. (Even after Monday’s 16-10 national championship win against Syracuse, it’s in the top three). And it’s a shame that a set of lies, a district attorney’s ambitions and presumptions of guilt have made it that way.”

Current Duke students who solely read the Chronicle must have been puzzled, however, by Beaton’s final sentence. A “set of lies”? A “district attorney’s ambitions”? “Presumption of guilt”—including from dozens of faculty on campus, amplified by a president too cowardly to stand up for due process?

Isn’t this the same paper that only a few months ago informed readers that the legacy of the lacrosse case was “a stifling effect on our administration” leading to “the administration’s ability to comment on Duke’s social culture”? The “enduring narrative” of the case was not, according to the authors of this unsigned editorial, a “presumption of guilt” by those who ran the school, but instead “of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

Perhaps the authors of that unsigned editorial might want to take a look at Beaton’s column. I should note that the column’s title—that Coach Danowski changed the “meaning” of Duke lacrosse is far more reflective of the “enduring narrative” editorial than of Beaton’s column itself.

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Second, regarding the North Carolina “right to counsel” I bloggedabout below. Given the current state of affairs on college campuses, action from state legislatures to ensure due process in campus disciplinary procedures is about the only chance for reform. The likelihood that colleges themselves will enhance due process is about as high as Michelle Bachmann being chosen next year’s commencement speaker at Harvard.

The original House bill could, and should, serve as a model for other states to follow—a clear, unequivocal assertion that accused students have the right to a lawyer. It’s my hope that as the measure moves through the Senate, there will be greater clarity provided to at least one of the House modifications—namely, the provision adding “non-attorney advocate” to the bill. (“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.”)

Since all universities currently ensure “non-attorney advocates”—a toothless position—the bill’s effects would be meaningless. If, however, the bill is clarified to ensure that the student should have the choice between a lawyer and a non-attorney advocate, then the bill’s promise of a right to counsel could be significant indeed.

One other item from the bill, which fortunately was not modified by the House. The bill calls for a “licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.” One key element of the “Dear Colleague” letter (and changes demanded by “activists” at Stanford, Yale, and elsewhere as those schools have modified their campus disciplinary processes) has been significant structural restrictions on the process itself—severe limitations on the ability of accused students (or their “advocates”) to cross-examine witnesses, or to receive evidence in a timely fashion, or to present evidence of their innocence.

A legislative commitment to full participation might remedy some of those problems—but only, again, if the full participation came from an attorney, not a university-approved “non-attorney advocate.”

We’ll see what the Senate does.

In North Carolina's "Right to Counsel" Bill, Far Less Than Meets the Eye

The “Dear Colleague” letter (about which I’ve frequently written over at MTC) featured a three-pronged assault on the due process rights of college students accused of sexual assault. First, it ordered colleges to adjudicate such matters through a “preponderance of evidence” (50.01%) standard, thereby dramatically increasing the likelihood that innocent students will be branded rapists by their schools. Second, it forced colleges to institute a double jeopardy scheme that allows accusers to appeal not-guilty findings even under the reduced threshold. Finally, it strongly encouraged colleges to deny accused students the right to cross-examine their accusers—even though in claims of acquaintance rape, the accuser might be the only witness against the accused.

As hostile to due process as the “Dear Colleague” scheme is, however, the document at the very least didn’t explicitly deny the right of accused students to be represented by counsel in disciplinary proceedings. A cynic might say the letter didn’t have to issue such a mandate, since most colleges already bar lawyers from their disciplinary processes.

This oversight, however, provides an opening (at least at public universities) for state legislatures to restore some semblance of due process for students accused of sexual misconduct. Nothing in the “Dear Colleague” letter prevents state legislatures from passing laws ordering public universities to let accused students have full, robust legal representation. And given the sudden, bipartisan interest in due process amidst the IRS and AP subpoena “scandals,” the political environment is unusually suitable for politicians to act.

In April, seeking to safeguard student rights on campus, four North Carolina state representatives (Republicans John Bell and Jonathan Jordan, Democrats Rick Glazier and Nathan Baskerville,) served as lead sponsors for a measure called the Students & Administration Equality Act.

The bill contained only one clause, entitled “Student disciplinary proceedings – student’s right to counsel,” and provided a much-needed reform on behalf of due process. It held that “any student enrolled at a constituent institution or student organization at a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution and that wants legal representation may be represented by an attorney during any formal stage of any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the charge of misconduct against the student or student organization.”

The bill was referred to the House Education Committee, where it languished for a month. Last week, it was withdrawn from the committee and referred instead to the Rules Committee, which substantially rewrote the bill. Though still promising a “right to counsel for students and organizations” in disciplinary proceedings, the measure actually does no such thing.

Here’s the new text, with the relevant sections gutting due process in bold:

“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:

(1) If the constituent institution has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.

(2) For any allegation of ‘academic dishonesty’ as defined by the constituent institution.”

The amendments to the bill have so altered the original measure to render it meaningless.

First, the bill no longer provides a “right to counsel,” at least as the word is commonly understood (an attorney). Instead, the bill requires colleges to allow students to be represented by an attorney or by a “non-attorney advocate.” In short, all the bill envisions is codifying the ways in which universities give a phony sense of due process by suggesting that an “advocate” (a faculty member, a fellow student, even a family member) can safeguard a student’s rights even if lawyers are excluded from the disciplinary proceedings. Despite the now-misleading title, no student facing charges before a college disciplinary tribunal in North Carolina will gain the “right to counsel” if the amended bill passes.

Second, even the gutted “right to counsel” doesn’t apply if the school “has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.” This provision, if construed broadly, would seem to exempt every disciplinary proceeding at a North Carolina public university except for one—the University of North Carolina’s recently-adopted sexual misconduct procedure, one of the earliest responses to the “Dear Colleague” letter. (UNC formally set up a two-tier system of campus justice in which students accused of sexual assault would both be judged by a lower standard than students accused of other offenses on campus, and would have their cases heard not by students but by a specially “trained” panel of . . . sensitive . . . administrators and students.)

Even at UNC, however, the law wouldn’t require students accused of sexual misconduct to be represented by a lawyer, only by a “non-attorney advocate.” And that “right” already exists: an accused student receives an “advisor”to assist “with pre-hearing procedures and the presentation of witnesses and evidence at the hearing or at any subsequent proceedings. Only currently enrolled students or employed staff members of the University shall serve as advisors to the parties.” And that “advisor”—or “non-attorney advocate,” in the bill’s language—can’t do much once the hearing begins, since a student accused of sexual assault, or his “advisor,” “shall not have the right to question another party; however, each party may submit proposed questions to the panel for panel members to ask of the other party if the panel members determine, in their sole discretion, that the proposed questions are designed to elicit relevant information.”

To review: the amended bill won’t provide any accused student in North Carolina a right to counsel; it won’t even apply to most disciplinary processes at North Carolina’s public colleges and universities; and it will have no effect on the one procedure (UNC’s new sexual assault standards) to which it clearly would apply.

Last week, the North Carolina House of Representatives passed the bill by a margin of 112-1, with only Wake County Republican Jim Fulghum voting no. The measure currently awaits action in the Senate.

The upper chamber should reject the bill, and if the bill passes, Governor McCrory should veto it. Not only is the measure, as currently constituted, meaningless, a strong case could be made that the bill is harmful, because it creates the false impression that a “right to counsel” exists when, in fact, no such right is present.

Assorted Legal Matters

The City of Durham has filed its final brief in its mid-case appeal to the 4^th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.

To reiterate, here is how Judge Beaty has responded to the Durham argument:

Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.

Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.

The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”

But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.

Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.

This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.

Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.

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One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.

Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.

In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.

At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”

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One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."

As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.

In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?

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The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.

In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."

Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.

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Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.

As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.

A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.

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Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.

But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.

In fact, the grand jury report said something quite different. Here’s the relevant excerpt:

“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.

In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.

[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]

Meehan Wrongful Termination Suit Dismissed

In the United States, anyone can file a lawsuit. But some are more brazen than others.

In the ranks of people who violated procedures in the lacrosse case, only Mike Nifong exceeded DNA Security lab director Brian Meehan. Working in concert with Nifong, Meehan produced a “report” that didn’t list all the results from his lab’s tests—in violation of state law and lab accreditation standards. That the withheld material just happened to be exculpatory was, apparently, just a coincidence.

Then Meehan tried to bluff his way through the Dec. 15, 2006 court hearing, at first denying that he hadn’t reported all of the tests results, only to admit—under a brutal cross-examination from Brad Bannon—over and over and over again that he had done so. He even admitted that his company didn’t follow its own policies. A few minutes later, Meehan told Jim Cooney that he and Nifong had, in fact, entered into an agreement not to produce the information. A few months later, Meehan gave such a meandering performance in the Nifong ethics hearing that Lane Williamson dubbed him “Mr. Obfuscation.”

Meehan’s conduct exposed his employers to massive legal liability; it’s unknown how much DNA Security has had to pay thus far to defend against lawsuits resulting from Meehan’s performance and inquiries from agencies threatening to revoke DSI’s accreditation. So it should hardly have come as any surprise that DSI fired Meehan—to have kept him on staff not only would have effectively endorsed his handling of the lacrosse case, but would have ensured that no law enforcement agency could ever risk hiring the company again.

Incredibly, Meehan sued DSI for . . . wrongful termination. He brazenly suggested that the company’s reasons for dismissing him were “untrue and immaterial.” (How Meehan could have concluded that his violating state law and national accreditation standards was “immaterial” to evaluating his job performance was unclear.) Instead, the former lab director suggested, he had lost his job because DSI wanted to avoid paying him cost-of-living increases(!).

Meehan wildly added, as the Burlington Times-News drily noted, that DSI’s decision to fire him caused a “loss of professional reputation, mental anguish and emotional distress, loss of quality and enjoyment of life and other damages.” What “professional reputation” Meehan had left after his performance in the lacrosse case the former lab director didn’t say.

This argument was so weak that Senior Resident Superior Court Judge J.B. Allen Jr. of Alamance County granted DSI’s request for a summary judgment and dismissed Meehan’s lawsuit before it ever made it to a trial.

The decision was an obvious one: if Brian Meehan couldn’t be fired for “just cause,” it would be difficult to imagine a scenario in which such a rationale would be permitted.

The Roethlisberger Case

One item from the case is especially notable. As far as I can tell, and despite the heavy media interest, the district attorney, Fred Bright, has made only one public comment. Here it is: "The investigation is ongoing. It would be premature to make any announcement at this time. When the facts are in and a decision is made, we will let you know."

Contrast the tone and contents of that remark to Mike Nifong's pre-primary publicity crusade in 2006. Three days after taking over supervision of the police investigation, and minutes after receiving his first detailed briefing on the facts of the case from the police officers now working under his direction, Nifong was off and running.

He gave interview after interview to local, state, and national media--expressing his certainty that a crime had occurred (as he privately admitted, "We're fucked"), and making racially inflammatory remarks as he began his surge from third place to first among black primary voters. He discussed how he had read the report of SANE-nurse-in-training Tara Levicy--the report that mentioned false accuser Crystal Mangum had claimed her "attackers" hadn't used condoms. He even gave a demonstration--on live TV, no less--of how the false accuser had been "choked" in the commission of the "crime."

During that time, few prominent commentators or members of the media expressed any skepticism about the propriety of Nifong's remarks--TalkLeft's Jeralyn Merritt stands as a significant exception. That said, it's hard to think of a DA in a comparable case (much less a DA six weeks from a primary election that seemed certain to result not only in his defeat but in the new DA firing him) behaving anything like Nifong did.

Bright's comment provides a reminder of how "Minister of Justice" Nifong should have conducted himself in spring 2006.

Pottawatamie County & Nifong

In 1978, in Iowa’s Pottawattamie County, a retired police officer working as a security guard was murdered. Police and prosecutorial attention rapidly focused on Curtis McGhee and Terry Harrington. The two suspects were tried, convicted, and imprisoned for more than two decades.

But, it turns out, massive misconduct occurred in the case. The prosecutors never informed defense lawyers that police had another suspect in the killing. Nor did they reveal that they seem to have coached a key witness in the case to give fabricated evidence against McGhee and Harrington. When this information surfaced, in 2002, the Iowa Supreme Court vacated one conviction, and the other defendant accepted a plea bargain allowing him to go free immediately. Both McGhee and Harrington then filed suit against the police department and against the two prosecutors, Joseph Hrvol and David Richter, who had manufactured the evidence against them.

The prosecutors sought to have the lawsuit dismissed, claiming that they possessed absolute immunity for their acts. But lower courts ruled against them, and their case now goes before the Supreme Court.

The case has attracted a number of amicus briefs. Among the most persuasive: that from the libertarian Cato Institute, the ACLU, and the National Association of Criminal Defense Attorneys. Filing amicus briefs on behalf of the ethically challenged prosecutors were the Justice Department and the National District Attorneys Association. Both briefs contend that abandoning absolute civil immunity for prosecutorial behavior would make prosecutors so afraid of being sued that they won’t be able to do their jobs.

The Justice Department argues, “If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.” Or, in the words of the NDAA brief, “The inevitable consequence of broader civil liability will be the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” The greater good dictates absolute civil immunity for prosecutors.

In her brief, Solicitor General Elena Kagan also argues for reversal of the lower-court rulings on the grounds that the Supreme Court “has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler [which provides absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process”] into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor's investigation and preparation of the case instead of his activity at trial.”

The DOJ/DNAA argument is quite breathtaking. As Radley Balko has argued, the Pottawattamie side of the case contends “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”

The Justice department and the NDAA make a second argument: namely, that other options—such as disbarment or even, in extreme instances, criminal prosecution—exist to sanction ethically challenged prosecutors. Among the examples favorably cited in the NDAA brief: the removal of Mike Nifong as Durham County District Attorney.

At first blush, and even though his termination from the legal profession was celebrated in one of these filings, the DOJ and NDAA briefs might seem like good news for Nifong, as he desperately seeks to avoid civil liability for his misconduct. In fact, however, both briefs—especially that of the Justice Department—confirm that Nifong’s behavior in the lacrosse case fell outside the bounds of any conceivable definition of appropriate prosecutorial conduct. And if even these extremely aggressive defenses of prosecutorial immunity don’t cover Nifong’s behavior, the disgraced ex-DA would seem to be in trouble.

“Prosecutors,” according to the Justice Department, “may not be held liable for fabricating evidence they introduce at trial, even though police officers who fabricate evidence may be held liable under Section 1983.” In fact, “even an unconscionable act of fabrication does not transform a prosecutor's acts at trial into a source of civil liability.”

But Nifong, of course, was supervising the police investigation before any finding of probable cause (the grand jury indictment based on admittedly false testimony from ex-Sgt. Mark Gottlieb) had occurred. In a highly unusual move, he assumed personal command of the police investigation ten days after Crystal Mangum made her initial false charges. No representative of the Durham Police Department or city government has ever provided an explanation as to why the police, in violation of custom and procedures, ceded control of their investigation to the prosecutor on March 24, 2006.

The Justice Department, in a passage that could have been tailored to describe Nifong’s behavior, conceded that “prosecutors may remain liable for any number of investigation-stage activities, as to which they enjoy only qualified immunity—for example, conducting searches and seizures that violate the Fourth Amendment.” In Nifong’s case, such behavior would be his conspiring with lab director Brian Meehan to produce an incomplete and misleading report; or ordering the police to run a third lineup, which violated their procedures and was confined to the suspects in the case.

That said, according to the Justice Department, “liability for procurement is not predicated on the simple act of fabricating the evidence; if there were no subsequent use of the evidence, there would be no liability.” But Nifong did use the fabricated evidence: the fabricated item (the lineup) provided the only specific material used against the three people that Nifong targeted.

One final item from the Justice Department brief that’s damning to Nifong. The brief maintains, “‘On facts like those alleged here, a person who bears the title prosecutor, but who ‘perform[ed] [only] the investigative functions normally performed by a detective or police officer,’ Buckley, 509 U.S. at 273, would be liable. The exemption from liability in this case, although absolute, applies only to a discrete set of individuals for a discrete set of activities.”

The passage unveils a bizarre DOJ claim that prosecutors must have absolute immunity as soon as they introduce their manufactured or improperly obtained evidence at trial. If, however, someone else handles the case, the initial prosecutor would be civilly liable. As no trial ever occurred in the lacrosse case, Nifong would seem to be additionally vulnerable.

In short, for Nifong, even superficially good news turns out to be bad.

The Lisker Case

A few years ago, TalkLeft’s incomparable Jeralyn Merritt (one of the first high-profile legal commentators to raise questions about Mike Nifong’s misconduct) flagged a Los Angeles Times magazine article about a convicted murderer named Bruce Lisker. The lengthy article is well worth reading: it’s impossible to come away from it without believing that an innocent man has spent more than 20 years of his life in jail for a crime he didn’t commit.

Last Friday, U.S. District Judge Virginia Phillips accepted the recommendations of a magistrate judge and vacated Lisker’s conviction. (Here’s a link to the magistrate judge’s report—which, like the Times article, is well worth reading in its entirety.)

Between the Times article and the magistrate judge’s report, the Lisker case provides an unusually well-documented example of a miscarriage of justice. It also illustrates how the lacrosse case differed from most cases of innocent people being charged with a crime they didn’t commit.

Lisker, an adopted son of older parents, had a troubled childhood. He used hard drugs in junior high school, fought constantly with his adoptive mother, was briefly sent to what seems to have been a reform school, and at age 17, dropped out of high school. He persuaded his parents to rent him a cheap apartment not too far from their house, and, by his own admission, continued his downward spiral of behavior.

On March 10, 1983, Lisker went to his parents’ house—to, he said, borrow a car jack. When his mother didn’t answer the door, he said he looked in the living room window, saw his mother’s prone body, and entered the house. Lisker saw his mother stabbed in the back, took two knives out of her back (getting blood on himself and his sneakers in the process), and called 911. Detective Andrew Monsue responded to the call, interrogated Lisker (without initially reading him his Miranda rights), concluded that the young man was lying (in large part, the detective claimed, because the alleged glare of the sun meant there was no way Lisker could have looked into the window and seen his mother), and arrested him.

Monsue’s initial reaction was not unreasonable: Lisker had motive (he had repeatedly quarreled with his mother); was found, covered in blood, at the scene of the crime; and failed a lie detector test (for which he had volunteered). But the detective’s subsequent behavior provided an almost textbook case of “tunnel vision” by the police. Having decided that Lisker was lying, he interpreted all of the evidence through the prism of Lisker’s guilt. So Monsue simply assumed that all of the bloody footprints on the scene belonged to Lisker, rather than having them checked. (Twenty years later, when a criminalist finally did examine the footprints, it was established that one set of the bloody prints didn’t belong to Lisker.) The detective went out of his way to document “evidence”—notably the alleged glare on the living room window—that made Lisker look more guilty. (It turned out that, given weather conditions on the day of the murder, the body would have been visible through the window.) And remarkably strong evidence that a casual acquaintance of Lisker who had a violent past, a drifter named Michael Ryan, was the actual murderer Monsue either ignored or didn’t investigate.

At trial, prosecutor Phillip Rabichow repeatedly made statements that he might have believed but which turned out to be false. He told jurors that since Lisker had lied about seeing his mother’s prone body, nothing else the young man said could be true. And, Rabichow added, since no one else’s footprints had been found at the scene, who else but Lisker could have committed the crime? In both instances, Rabichow had trusted the evidence package that Monsue had provided to him. But these statements were not true.

Lisker’s attorney, meanwhile, proved so incompetent that he couldn’t even get the evidence about Ryan admitted to the trial. After 10 hours of deliberation, a jury found Lisker guilty of second-degree murder, a sentence for which he has remained in jail until his release this week. The local DA’s office hasn’t decided whether it will retry him: how such a move could serve the cause of justice is unknown.

One obvious similarity exists between the Lisker and the lacrosse cases: police officers “recalling” “facts” they hadn’t documented contemporaneously, so as to paper over holes in the prosecution’s case. In the lacrosse case, of course, this pattern most clearly emerged with the Gottlieb “notes,” the typewritten document—most of which Gottlieb subsequently admitted he produced in July, months after the events it allegedly described—that conveniently filled some of the myriad holes that already had emerged in disgraced ex-DA Mike Nifong’s case.

In the Lisker case, such “recollections” occurred much later, as federal courts and the LAPD’s Internal Affairs unit started looking into the prosecution. Monsue “recalled” that the new owners of the Liskers’ house had discovered the money allegedly stolen from Lisker’s mother in the bedroom formerly occupied by Bruce Lisker—which would have conveniently filled a major hole in the case. (If robbery were a motivate for the crime, as the state claimed, and if Mrs. Lisker were in fact robbed, then why did the police not find any money on Bruce Lisker?) The only problem: the new owners said they hadn’t found any money, and that they certainly hadn’t told Monsue about it.

Other undocumented “recollections” included the police photographer “recalling” arriving on the scene several hours before his notes claimed (which was an important element for the “window glare” evidence); and two of Monsue’s subordinates “recalling” that they might have stepped in blood at the scene, thereby providing the footprints that weren’t Lisker’s. The magistrate judge bluntly concluded that both Monsue and the police photographer had knowingly provided “false” testimony.

But the differences between Lisker and lacrosse far outweighed the similarities between the two cases.

In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t improperly assume personal command of the police investigation; in the lacrosse case, prosecutor Nifong did.

In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t make dozens of ethically improper public statements; in the lacrosse case, prosecutor Nifong did.

In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t instruct the police to run a lineup that flagrantly violated the department’s own procedures; in the lacrosse case, prosecutor Nifong did.

In the Lisker case, Monsue appears to have randomly accepted the call, and had no documented behavior of disproportionately arresting 17-year-old people named Lisker; in the lacrosse case, of course, Gottlieb had a documented record of disproportionately arresting Duke students.

In the Lisker case (unlike, it should be noted, many instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t conspire to conceal exculpatory evidence; in the lacrosse case, prosecutor Nifong did.

Despite these myriad differences, if Lisker’s case had occurred in North Carolina (and, of course, if Lisker were African-American), doubtless the disgraced Nifong’s de facto propaganda agency (justice4nifong) and extremists among the Group of 88 would be demanding that the State Bar open proceedings against Rabichow. Politically correct reviewers (and even respectable figures who should know better) would draw strained comparisons between Lisker’s treatment and that of the lacrosse players.

Yet, in the real world, even in what the L.A. Times described as a “haunting” case like Lisker’s, the intent of prosecutors matters when evaluating questions of misconduct. And while it seems pretty clear that Monsue deserves disciplinary action (and equally clear, given the LAPD’s culture, that Monsue will be allowed to skate by), it’s hard to see, at least based on the facts uncovered by the magistrate judge and the L.A. Times, what ethical allegations possibly could be brought against Rabichow.

So if innocent people like Lisker can go to jail for decades without a prosecutor committing any misconduct, why did Nifong have to break so many rules to prop up a case for a year? Three explanations come to mind:

First, and most important, Nifong not only had to manufacture evidence to send innocent people to jail, he had to manufacture evidence of a crime with which to charge them. To manufacture evidence of the “crime,” Nifong needed to conspire to withhold the exculpatory DNA evidence, work alongside ex-SANE nurse-in-training Tara Levicy so that Levicy would constantly shift her story, and whip up public opinion into a frenzy so locals wouldn’t look too closely at the facts he was presenting. To manufacture evidence against those he charged with the non-existent “crime,” Nifong needed the police to break the rules regarding the photo lineup, which then supplied the only evidence he would present against the three people he falsely charged.

Indeed, the single scariest legacy of the lacrosse case is that an unethical local prosecutor has enough power to charge people (with the motive of advancing his political career) even when no crime has taken place.

Second, unlike the Lisker case, the lacrosse players had excellent attorneys. They couldn’t stop Nifong from bringing the case, but their aggressiveness did force him into lots of errors (the Gottlieb memo, the handling of the DNA evidence in fall 2006 court sessions, the bizarre public statements in fall 2006) that intensified the ethical improprieties with which he would be charged. If the lacrosse players had passive, incompetent representation like Lisker did, Nifong simply would have sat back and done nothing as the case ground to trial.

Third, and much unlike the Lisker case, the institutions in society we expect to stand up for civil liberties—the media (except for the N&O once Joe Neff took over as their lead reporter, and the AP), the academy, civil rights organizations—by and large exhibited little interest in the question. To the contrary: the Times, the Herald-Sun, the Group of 88, the North Carolina NAACP, and other such groups seemed more interested in propping up Nifong’s case than in demanding that all citizens, regardless of race, class, or gender, receive equal treatment under the law.

A Troubling Case

A disturbing, and compellingly written, ESPN article that I strongly recommend.

The lacrosse case shone a light on the guilty-until-proven-innocent nature of rape law: the idea that someone can be, theoretically, convicted solely on the basis of an accuser’s testimony and ID—even in the face of evidence of actual innocence—is chilling. Our criminal justice system supposedly is built on the idea that better nine guilty go free than one innocent person be convicted; with sexual assault law, the reverse seems to hold true.

The reason, of course, arises from the (probably correct) belief that sexual assault is underreported. But then feminists and “tough-on-crime” legislators made a fatal leap: that if the law is changed to make a conviction more likely, more real victims will be likely to report the “crime.” That might be true—but it also leads to situations like the one in the ESPN article, where the evidence for conviction appears very, very flimsy.

One other point: this was an allegation of a rape by a black athlete of a woman of uncertain ethnicity*. The case attracted little national media attention—part of a pattern I profiled here, in which the media attention to the lacrosse case was wildly disparate to media attention of allegations of sexual assault by minority athletes. In the Santa Barbara case, media political correctness appears to have helped perpetuate an injustice—if a California version of Joe Neff had been on the case from the start, perhaps a different outcome would have occurred.

Hat tip: E.D., J.Z.

*--modified

From the Wires

Two . . . intriguing . . . items crossed my desk Friday.

The first came from Durham mayor Bill Bell. WTVD ran a lengthy story noting that Durham officials, including Bell, have complained again about Duke students’ off-campus partying—and some of the student behavior in Tamara Gibbs’ story is disgusting (although, I suspect, not exactly unheard of in any college or university town in the country, not just Durham).

To accompany the story, WTVD posted a letter sent by Bell to Richard Brodhead, dated March 25, 2009. Bell attached to the letter a four-page “report” produced by an entity called “Trinity Heights Action Committee.” (The four-person committee included two Duke faculty members: Music professor Philip Rupprecht; and Cathy Shuman, a “visiting assistant professor” in the English Department.)

Bell’s inclusion of the document would seem to constitute an official endorsement of its contents. Three sentences from the entity’s report particularly jumped out.

The first:

The 2006 Lacrosse incident thrust the disruptive and abusive behaviors caused by Duke party houses into a national media spotlight.

This sentence provides what could charitably be described as an unusual take on the legacy of the lacrosse case. Perhaps the Trinity Heights entity has access to information not in the public domain. But there would seem to be at best an indirect relationship between “the 2006 Lacrosse incident” and “the disruptive and abusive behaviors caused by Duke party houses.” At least as defined in the Gibbs story, “the disruptive and abusive behaviors caused by Duke party houses” included such behavior as loudness that triggers noise complaints or littering or destroying property on neighbors’ yards. Yet no neighbors appear to have complained about the 2006 spring break party, nor did any of the neighbors allege that any of the players hurled trash or other items onto their yards, or broke any of their property.

In that respect, it seems as if the sentence provides yet another reminder of the attitude of the “Durham street” toward the lacrosse players.

The second sentence:

Although this [2006 Lacrosse] incident had enormous negative consequences—legal and financial—for both Duke and Durham, it is by no means clear that Duke has yet enacted any major changes of policy for off-campus student life in response.

This sentence, to put it bluntly, makes no sense. It connects two events ([1] the “enormous negative consequences—legal and financial—for both Duke and Durham” and [2] Duke policies toward “off-campus student life”) that have no direct relationship.

The “negative” legal and financial consequences to Durham resulted from legal fees to defend lawsuits alleging federal civil rights violations against Duke students. The “negative” legal and financial consequences to Duke resulted from various legal fees, and from settlement costs to avoid a lawsuit from the falsely accused players that would have focused on dubious decisions and actions by Duke's administrators and faculty.

I can see how these “negative” legal and financial consequences might have prompted Durham to undertake a comprehensive study of the DPD’s abuses of procedures (which the city hasn’t done, to no apparent concern of the Trinity Heights Action Committee). And I can see how these “negative” legal and financial consequences might have prompted Duke to undertake a comprehensive study of whether the university’s faculty hiring policies have produced a culture of groupthink and disregard for student rights under the handbook and the faculty bulletin (which the University hasn’t done, to no apparent concern of the Trinity Heights Action Committee).

But I don’t see how these “negative” legal and financial consequences have anything to do, one way or the other, with Duke enacting “major changes of policy for off-campus student life.”

I emailed Prof. Rupprecht and Visiting Assistant Professor Shuman for guidance as to how the committee reached this unusual linkage. Neither responded.

The third sentence:

Duke Campus Police shares joint jurisdiction over off-campus neighborhoods with Durham PD.

This sentence marked the clearest yet official Durham statement that the Duke Police Department also had jurisdiction over events at 610 N. Buchanan. (This item was most spectacularly revealed in the initial Ekstrand lawsuit filing.) This official Durham statement—in a letter to Brodhead, no less!—raises at least three serious questions.

One: Are there actions that still haven’t been revealed undertaken by the Duke Police Department as part of its “joint jurisdiction over off-campus neighborhoods” in the lacrosse case?

Two: Who at Duke made the decision to defer to the Durham Police Department in an incident over which—according to this Bell letter—“Duke Campus Police share[d] joint jurisdiction”?

Three: Given that “Duke Campus Police shares joint jurisdiction over off-campus neighborhoods with Durham PD,” why did Richard Brodhead assert, on April 5, 2006, “Frustrating though it is, Duke must defer its own investigation until the police inquiry is completed, first because the police have access to key witnesses, warrants, and information that we lack, and second because our concurrent questioning could create a risk of complications—for instance, charges of witness tampering—that could negatively affect the legal proceedings?” Brodhead's statement would appear to be irreconcilable with the assertions in the March 2009 Bell letter.

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The second item came from the New York Times, which published a fawning review of its former star sports columnist’s book. Nicholas Dawidoff, author of several books on baseball, reviewed Selena Roberts’ A-Rod with less skepticism than might be expected in a high school newspaper.

Since virtually all sensational allegations from Roberts’ book came from primary sources, analyzing her book all but requires discussing her credibility. But in the previous high-profile item covered by Roberts, her writing indicated that she had no journalistic credibility at all. She combined outright errors of fact with wild exaggerations or distortions—and then, when called to account for her words, she simply lied about what she wrote.

But even though Roberts’ embarrassing coverage of the lacrosse case has received extensive attention, Dawidoff’s review doesn’t even mention it. Someone whose sole encounter with Roberts came from Dawidoff’s review would never have known that Roberts’ work on the lacrosse case was so poor that it helped produce an apology from Times editors. Dawidoff, instead, hails Roberts as an “enterprising investigator” in his review.

Having elected to ignore questions about Roberts’ credibility, Dawidoff proceeds to accept all of her book’s claims without apparent skepticism. In 1,223 words, Dawidoff never once expresses any doubts about even one item in Roberts’ book.

Two of Roberts’ (anonymously sourced) claims about A-Rod have generated the most doubts: (1) her assertion that A-Rod probably used steroids in high school; and (2) her revelation that Rangers officials allegedly noticed A-Rod tipping pitches when he played in Texas. The first has generated strong doubts from several people who were on Rodriguez’ high school teams; the second has produced widespread skepticism centered on the paucity of Roberts’ evidence.

Dawidoff’s analysis of these allegations? As with doubts about Roberts’ credibility because of her lacrosse case errors, Dawidoff has no interest in exploring the matter. Instead, he writes of Roberts’ portrayal: “Makes sense to me.”

Penetrating insights, indeed.

Nifong & Stevens: Follow-up

Ironically, on the very day that the post below came out, a major report from the Justice Project appeared, using Nifong and the Stevens prosecutors as the two specific examples of prosecutorial misconduct in recent years.

I agree completely with the report's recommendations--especially its sympathic view toward open-file discovery--although its description of the lacrosse case seems a bit off the mark. The authors write, "The reports indicated that DNA evidence found on the victim did not match any of the three defendants in the case." The only "victims" in the lacrosse case, of course, were those victimized by Crystal Mangum's false claim of rape.

The report adds, "There are dozens of cases in which misconduct identical to Nifong’s have resulted in wrongful convictions and imprisonment." There certainly are "dozens of cases" in which misconduct "identical" to one element of Nifong's has "resulted in wrongful convictions and imprisonment."

I'm not aware, however, of "dozens of cases" in which a prosecutor has: (a) made numerous inflammatory, unethical statements to the national and local media; (b) ordered the police to violate their own procedures for a lineup, after a lineup loosely following procedures didn't yield any ID's; (c) withheld exculpatory evidence; and (d) outright lied to the judge about the content of that exculpatory evidence.

The full report is here.

Nifong & Stevens

Two weeks ago, Attorney General Eric Holder asked the court to dismiss all charges against former Alaska senator Ted Stevens. Holder cited the performance of the prosecutors in the case, who had been repeatedly excoriated by Judge Emmet Sullivan for withholding exculpatory evidence from Stevens’ attorneys.

In the aftermath of Holder’s decision, a meme quickly developed linking the Stevens affair to the lacrosse case. From the left, Jim Coleman in Huffington Post:

The United States has one of the best criminal justice systems on earth; in practice, however, there are two systems. One system, the one that tried former Senator Ted Stevens, seeks justice. The other system, the one to which the public is largely indifferent, is the one in which the kind of misconduct that freed Mr. Stevens is both common and tolerated . . . Many in the greater Duke community think of the case of the Duke lacrosse players who were falsely accused of sexual assault as a failure of the system. The opposite is true. And that is what was unique about that case and about the Stevens case. Although some parts of the system failed, in the end, justice was done through the system itself . . . Many of the people who will praise Mr. Holder for dropping the charges against Mr. Stevens will not care that the same kind of misconduct routinely taints the trials of those who are not rich, or famous, or well-connected, or well-regarded. Nor will they likely step back and learn from what happened to Mr. Stevens. That is the other reality of the criminal justice system and the indifference that sustains it.

[I agree with Coleman on the latter point—though it’s worth noting that many who purport to be concerned with what Coleman calls “the other system,” ranging from figures like Irving Joyner or Al McSurely to members of the Group of 88, did “not care” about the “misconduct” that tainted the case against the falsely accused Duke students, and have shown no indication in the aftermath to “step back and learn from what happened.”]

From the right, John Hinderaker in Powerline:

The prosecutors who tried to railroad Republican Senator Ted Stevens will now be investigated by order of the presiding federal judge . . . Like disgraced Duke lacrosse prosecutor Mike Nifong, they could eventually go to jail . . . It ultimately proved that the Duke prosecution arose out of a Democratic official’s hope of partisan political gain. Were the Stevens prosecution, and the misconduct that it engendered, similarly motivated? That is the question that investigators need to get to the bottom of.

At first blush, the connection between the lacrosse case and the Stevens trial is obvious: they were the two highest-profile instances of acknowledged prosecutorial misconduct in recent memory. But on closer examination, the Nifong-Stevens storyline obscures as much as it illuminates. Equating Nifong with the Stevens prosecutors minimizes the degree of prosecutorial misconduct committed by the disgraced ex-DA. And linking the lacrosse players to Stevens dramatically overstates the dubious behavior of the former Duke students.

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Before his trial, longtime Alaska senator Ted Stevens was probably best-known nationally for his aggressive attempts to secure federal funding for dubious Alaska projects (such as the “bridge to nowhere”) and his describing the internet as a series of “tubes” during his tenure as chair of the Senate Commerce Committee. (Jon Stewart skewered the latter item, below.)

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Obviously, I didn’t live-blog the Stevens trial, although I followed it out of an interest in Alaska politics. (I wrote a biography of one of Alaska’s first two senators, Ernest Gruening—who, ironically, had defeated Stevens in a 1962 Senate election.) Stevens’ indictment culminated a wide-ranging investigation of public corruption in Alaska that yielded convictions of several state legislators and prompted the resignation of Stevens’ son, Ben, from his position as president of the Alaska state Senate.

The criminal case against Stevens revolved around his connections with an Alaska businessman named Bill Allen. The government alleged that Allen and his company, Veco, had paid for a substantial remodeling of Stevens’ Alaska home; and that the senator hadn’t reported Allen’s assistance, or other gifts he had received (both from Allen and from other Alaska friends/businessmen), as he was required to do under Senate rules.

Testifying in his own defense, Stevens conceded that Veco employees had drawn up the plans for the renovations to the house, and had done the work that roughly doubled the size of his home. He denied, however, any untoward behavior, and maintained that he would have paid Allen if the businessman had ever presented him with a bill for his complete work. Other lines of Stevens’ testimony defied credulity: he claimed, for instance, that a $2700 Brookstone massage chair given to him in 2001 and still in his house at the time of the trial was not a gift but a loan, since “we have lots of things in our house that don’t belong to us.” (The senator asserted that his friend “bought the chair as a gift but I refused it as a gift.”) Discussing furniture that Veco had provided him, Stevens claimed that he hadn’t wanted the furniture, and that the furniture was substandard, only to have prosecutors remind him that he had considered giving the furniture to his son to furnish the son’s new home.

In short, regardless of whether his behavior was illegal, Stevens’ testimony exposed a politician who had lost his way on ethical issues—and thus had come up short in a fundamental component of his job. In that respect, there’s really no comparison to the lacrosse players—good students and athletes, with a solid record of treating fellow Duke students and staff with respect, whose offense was holding a tasteless spring break party, as thousands upon thousands of college students do every year.

Two of the jurors in the Stevens trial recognized the difference. One noted that while the former Alaska senator “may be innocent on corruption charges which were never brought up,” he was “still guilty of not disclosing some of [his] major gifts to the public”; another stated, more bluntly, “I mean, he had the chair.”

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An equally significant gap exists between the prosecutorial misconduct that occurred in the Stevens and lacrosse cases. Judge Sullivan recently asserted, “In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” The Stevens prosecutors sent a witness home to Alaska—apparently because his testimony didn’t correspond to their version of the case. The prosecutors didn’t turn over a note from Allen suggesting that Stevens probably would have paid the full amount of the renovation until Allen was already on the stand, testifying. And, after Stevens was convicted, prosecutors ignored a deadline imposed by the judge to turn over documents to defense attorneys—including notes of an earlier interview with Allen that contradicted part of his trial testimony.

Despite the severity of this record, there’s no comparison between the Stevens prosecutors’ behavior and that of Nifong. Had the Stevens prosecutors followed all the rules, the senator still would have been indicted. And (given that he wasn’t exactly dealing with a sympathetic jury pool), he might still have been convicted (as the quotes above from the two jurors suggest), although the odds at trial would have favored the defense.

In the lacrosse case, on the other hand, had Nifong followed all (any of?) the rules, an indictment never would have occurred: the only direct evidence against the three people indicted came from the players-only lineup, in which Nifong had ordered the police to violate their own procedures. Nifong’s myriad, procedurally improper, public statements helped nationalize the case and whip up local public opinion. Nifong did join the Stevens prosecutors in withholding exculpatory evidence, although in the lacrosse case, unlike in the Stevens affair, the prosecutor couldn’t possibly claim an honest error in not turning over the exculpatory DNA evidence to the defense.

Based on the evidence currently available, a significant gap also exists between the motives of Nifong and the Stevens prosecutors. As the ethics proceeding against him established, Nifong’s chief motive was personal gain: he hoped the exploit the case to win a primary election, which would, in turn, allow him to receive a higher pension. The motives of the Stevens prosecutors, on the other hand, do not appear to have been personal financial gain or advancing their political interests; a long article in yesterday’s Washington Post describes a prosecution beset by factionalism, poor preparation, and insufficient oversight.

The Nifong and Stevens cases, in short, remind us that different levels of prosecutorial misconduct exist. And while it’s a salutary effect of the lacrosse case that the name Mike Nifong is now associated with virtually every instance of acknowledged or even apparent prosecutorial misconduct, it’s worth remembering that that the disgraced ex-DA set quite a high standard on the question of prosecutors breaking the rules.