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On Cooper, Nifong, and Actual Innocence:

The rap on Roy Cooper (the North Carolina Attorney General) among my friends who know a good bit about him is that he is overcautious — a smart guy who is too often hesitant and a bit of a plodder. People I know who followed the investigation closely were confident that Cooper's investigators had concluded that the charges against the lacrosse players were without merit and that the lacrosse players were in fact innocent, but the betting money seemed to be that Cooper would issue a bland statement saying that there wasn't enough evidence to support a trial and leave it at that. That, after all, is the easy way out — the path of least resistance. He could have said that there was insufficient evidence, and that he would not go beyond that characterization because no further statement about the strength of the evidence was necessary for his decision. And I imagine that his political advisors probably told him that this would be the politically safe route to take (I can see counter-arguments, but my guess is that would have been their advice).

I find it remarkable, then, that he went so much further, saying that the accused players were in fact innocent, that there was no credible evidence against them, that the accuser's many different statements could not be rectified and that she contradicted herself, etc. This was not a garden-variety statement about insufficient evidence but instead was about as complete a vindication as the defendants could have imagined. Indeed, I think that Cooper said just about everything that the defendants could have wanted. Cooper must have really been convinced.

One final note: A defense lawyer (or a libertarian) treating this as a cautionary tale about the awesome power of a "rogue prosecutor" to run amok is not a surprise. But an attorney general framing the case that way is more striking. Not that Nifong didn't deserve this drubbing — just that I wasn't betting on it.

DRJ (mail):
Cooper's statement was obviously most helpful to the Duke lacrosse defendants and most damaging to the accuser and Nifong. However, I think it may ultimately prove most damaging to Duke University. Duke administrators and faculty will have a harder time showing they acted in good faith.
4.11.2007 11:27pm
whit:
cooper is truly my hero... i must say that when this case first came out, it sounded bogus, and as it went on and on, it became more apparent how bogus it really was.

what was just truly disgusting though, was the reaction from the left (sites like feministing.com and democraticunderground.com) who only see things in identity politix lens. these were roguish, thuggish, vile, rich, white boy rapists and the victim was an underprivileged black single mother.

the evidence did not matter. the race/privilege/woman as victim angle was ALL they could see. it truly disgusted me, and trying to discuss facts was impossible. they really did not matter when people had a cause to get behind. disclaimer: i played lacrosse in college, AND was a member of a frat. therefore, i must be a rapist.

cooper is a TRUE public servant. at least from the prosecution angle, it's all about a search for truth - NOT about convicting somebody for the sake of convicting them (or even worse - pandering to race hustlers and trying to win an election).

cooper has totally won my respect.

i wore a duke lacrosse t-shirt at the gym for months (but i did occasionally wash it) to show my support, and i got some nasty looks, but what the heck...

i think the duke women's lacrosse team were equally as heroic, in (on the whole) completely supporting the male players.
4.11.2007 11:30pm
Steve:
This is an important point. Under the circumstances, it was important to push back and make an unequivocal statement. When the government screws up (and this was one rogue prosecutor... but he's still an agent of the government) it needs to set things right.

When an innocent man gets released after 20 years in prison, for example, you don't hear "we determined there was insufficient evidence to sustain the conviction beyond a reasonable doubt." What you hear, and what you expect to hear, is "we screwed up, we imprisoned an innocent man, we're sorry."

This case was certainly a black eye for the justice system. It sounds like Cooper did his very best to set that right. My hat is off to him.
4.11.2007 11:35pm
whit:
fwiw, at least from a process angle, it is entirely possible for an innocent man to be convicted through no fault of prosecutors, cops, or the jury. simply put, coincidence, mistaken witnesses, etc. can come together in a perfect storm of coincidence. so, even when everybody did everything right , an innocent man can still get convicted.

after all, our motto is: better to let 10 guilty go free, than convict one innocent. but there is no perfect knowledge. even "beyond a reasonable doubt" does not mean beyond any doubt.

what was clear in this case, was the prosecutor maliciously (to put it mildly) prosecuted these guys, ignore exculpatory evidence etc. it was a railroad job 100%. i also think it's really kewl that the suspects COOPERATED with police/prosecutors. they didn't do the "lawyer up" thang. they were innocent. and they protested their innocence and presented facts in their favor (Which nifong ignored and kept from the grand jury).

and it wasn't just nifong. whomever presented that COMPLETELY BOGUS photo lineup procedure seriously screwed up.
4.11.2007 11:47pm
neurodoc:
So what will happen now:

Do prosecutors ever get smacked hard for professional misconduct, even fairly egregious misconduct? How likely/unlikely is it that Nifong will get disbarred?

What about civil liability for Nifong and/or his employer? Has Cooper made it substantially easier for the now exonerated players to recover for damages?
4.11.2007 11:52pm
whit:
i'm not a lawyer but i can't imagine how cooper's statement wouldn't help their legal case.

prosecutors (like cops) have immunity(s), but they are not absolute. the pundits on teevee talk about "piercing" the immunity.

it sounds to me like what nifong did was borderline criminal. if it doesn't meet the legal definition of obstruction of justice, it certainly meets the moral one.

imo, the morally right thing to do is for the state/city, etc. to simply pay a nice settlement to the three men and their families. that would be the fair thing to do.

i would also love to see the cadre of professors at duke who blasted the players in their letter issue an apology. yeah, right... :l
4.11.2007 11:58pm
Roger Schlafly (www):
Why is Cooper such a good guy? Yes, he did the right thing today, but shouldn't he have done it a year ago? How long does it take to review a negative DNA test, conflicting statements, and the other evidence? Even before Nifong was taken off the case, didn't the state attorney general have the authority to overrule Nifong?
4.12.2007 12:00am
whit:
cooper is a good guy, imo, because (as the OP also stated) he didn't take the easy way out. he could have just dropped the charges, etc. and said they were not supportable by evidence. but he went much farther than that. he (as the case evidence supports) left no doubt that these guys are not merely being released from jeapardy due to a lack of evidence, but instead that they are INNOCENT, and that the accuser was full of #$(#$ in her complaint.

he sounded like a frigging mouthpiece for the lacrosse players, which is a good thing, because they have been completely and utterly wronged.

the job of a defense attorney is to present stuff in the best light of their client, and to try to exclude everything that could harm their client. it has nothing to do with seeking truth or justice. it has to do with getting your client off. but a GOOD prosecutor (or AG) should want the truth to come out, even if it harms "their side".

i respect his honesty, and how he went the extra mile.

as for the "a year ago thang", this case was under the jurisdiction of durham DA's office, and it's understandable that he did not get access to the case until nifong was removed. could it have happened faster... yea. sure
4.12.2007 12:08am
happylee:
I assume Cooper desires to save North Carolina's criminal legal system. That would suggest that Nifong will be crushed and his example held up as a stern warning to other prosecutors. That's good news. Nifong needs to go.

Now, when does the NYT issue a public apology for its truly vicious and one-sided railroading of the Duke players? (The article in todays times is actually pretty good. Perhaps this is the NYT's way of saying sorry?)
4.12.2007 12:16am
MJSgl (mail):

i would also love to see the cadre of professors at duke who blasted the players in their letter issue an apology. yeah, right... :l

How 'bout a mea culpa from the law school prof (of Con law, to boot!) pundits like this one:


“Not Innocent”

The disconnect between legal culpability and social responsibility simmers just below the surface of reporting on the Duke sex scandal. In The Duke Assault Case: A Question of Race, CNN’s January 16 special on Duke, co-hosts Paula Zahn and Howard Kurtz reminded viewers of the evidence that will be offered to exonerate the defendants if prosecutors take the case to trial: inconsistent victim statements regarding the number of assailants and nature of the assault; an alibi offered by one of the players that places him away from the scene of the crime; the lack of a DNA match to any of the players on the team. For Kurtz, this evidence sealed the case against the “accuser” whose racial identity he implied seduced reporters towards an interpretation of events that fit a familiar historical narrative - that of White men sexually exploiting Black women. Subsequent facts contradicted that script, and Kurtz offered these remarks in defense of the real “victims” marred by the scandal:

The Duke story was impossible for the media to ignore, but there was clearly a rush to judgment, which turned one woman’s shaky allegations into a racially charged morality tale. By the time journalists woke up to the fact that there was little evidence against these three young men, their reputations had been blackened.

Kurtz’s pitiful attempt to demonize the victim in this case - and through her all Black women - obscures the significance of other facts conspicuously left out of CNN’s broadcast: (1) that team members called the two women “niggers” and “bitches”; (2) one threatened to rape them with a broomstick; (3) another spoke of hiring strippers in an e-mail sent the same night that threatened to kill “the bitches” and cut off their skin while he ejaculated in his “Duke-issued spandex;” and (4) one shouted to the victim as she left the team’s big house, “Hey bitch, thank your grandpa for my nice cotton shirt.” These facts are undisputed and highlight the sick and wretched depravity of this racialized episode. The parallels between present and past are simply too numerous to ignore in the perverted claim these pampered and privileged White elites laid to the body of a Black female sex-worker. Yet if history is our guide, Kurtz is probably right - the evidence will ultimately stack against the “accuser” in favor of the accused and culpable or not, these boys will be exonerated. If brought to trial, my bet is they will be found “not guilty.” And yet, they are so far from “innocent.” Linda Martin Alcoff offers more insight into the importance of narratives surrounding the Duke case here.

Kathleen A. Bergin


Subsequently and thoroughly fisked here.

And here.

To which the "Feminist Law Profs" responded thusly.

Which engendered this response.

P.S. - It should greatly hearten Oren to know that the Feminist Law Profs blog's proprietor notes that she usually "only read[s] Orin Kerr’s VC posts, and miss[es] his eponymous solo blog." Now, aren't you jealous, Professor Benjamin?
4.12.2007 12:45am
vic:
anything short of jail time for nifong would be a travesty.

But I doubt it, the law tends to protect lawyers- case in point- why is legal malpractice so much harder to litigate and win vs med mal???
4.12.2007 1:01am
Jake (Guest):
Prosecutors have absolute immunity, IIRC. The DNA evidence hiding was just astounding, but I don't think there's even a "violating clearly established rights" exception to prosecutorial immunity.
4.12.2007 1:16am
Viscus (mail) (www):

the duke women's lacrosse team were equally as heroic


But you are too, a hero. For bravely wearing a duke lacrosse shirt to the gym.

We are all heroes. Today, I bought something from the store. Just my little way of heroically supporting capitalism. I also donated $5 to Rudy Guiliani, thereby heroically showing support for democracy.
4.12.2007 1:35am
hey (mail):
Jake: Nifong threw away his prosecutorial immunity by directing the police investigation (i.e. not functioning as a prosecutor. There are also arguments that his many statements, media appearances (and demonstrations of some supposed choking incident during the "attack"), and conspiracy to obstruct justice and suborn perjury (meetings with DNA Lab head where they agreed to not follow the law on disclosure and try to hide DNA evidence) are outside of the duties of a prosecutor so that he is liable for those activities as well, but that's arguable.

What we saw Cooper do today was to stake Nifong out in front of a fleet of steamrollers. "Rogue Prosecutor" is a fun term, as is innocent, and his discussion of what exactly is waiting for Nifong after the Bar trial was especially delightful. Saying that he didn't want to prejudice the Bar Trial but that "all options are on the table" is not the normal answer to a question about a possible prosecution. You go with no comment or "we don't talk about possible prosecutions".

"All options..." isn't what you want to hear as a possible defendant, especially when the AG who said that is also arguing for new laws to deal with your past conduct. The state of North Carolina is going to hang this entire thing on Nifong. Rae Evans now isn't Nifong's most dangerous opponent, Cooper is. The Duke Endowment is still justifiably petrified of Mrs. Evans, and today's press conference isn't going to help. "Lots of people owe lots of apologies..." is going to be a fun term in settlement discussions or in a civil court.

A great day, 13 months too late. Friday brings oral arguments on Nifong's motion to dismiss the bar case. Should be much hilarity and a great day. Will be interesting to see if the Bar representatives can keep a straight face listening to Nifong's arguments.
4.12.2007 1:45am
Viscus (mail) (www):
One of the most interesting quotations from this case came from one of the acused, Mr. Seligmann:


"This entire experience has opened my eyes up to a tragic world of injustice I never knew existed," Mr. Seligmann said. "If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves."


(From this article @ NYTimes.com)
4.12.2007 1:46am
jdd6y:
I hope the players don't accept a settlement and try their malicious prosecution case. Letting the government off with a settlement allows the government to hide. If I were one of those guys that is the only way I'd feel vindicated. Money isn't enough. I'd put Nifong on the stand and watch him take the 5th. I'd want to incriminate every little corporal who helped that scumbag. Then I'd get paid.
Cooper's statements pretty much lay the foundation for the kids' case. Why not hold their feet to the fire?

Nifong should be disbarred and go to prison. Given the government's ability to gin up violations for just about anything, there has to be some statute he violated. He wilfully violated their civil rights. I wouldn't be surprised if there was a conspiracy within the office. One guy can't hide exculpatory evidence. Throw all those people in the slammer under the RICO statute if it can be done.
4.12.2007 1:51am
Steve:
Nifong threw away his prosecutorial immunity by directing the police investigation (i.e. not functioning as a prosecutor.

No, I don't think that's right. The police were only taking directions from him because he was the prosecutor, after all. It's not as though they were under the impression he was involved in the investigation as a private citizen. And it's not at all uncommon for prosecutors to be involved in the evidence-gathering process in a normal case.

I frankly don't know whether prosecutors have absolute immunity, but you sure aren't getting around it with arguments like this one.
4.12.2007 1:56am
BruceM (mail) (www):
Doesn't matter, the cops will get their revenge on the Duke lacrosse players, who will be arrested and charged with either DWI or possession of a controlled substance (or both) within the next 2-3 months. Just watch. Nobody is allowed to go free.
4.12.2007 2:03am
Truth Seeker:
Nifong should be disbarred and go to prison.

Er, wouldn't prison be a dangerous place for a former prosecutor to be?
4.12.2007 2:10am
bornyesterday (mail) (www):
Being from Durham, and being aware of Nifong's history as a pretty upstanding guy -- he was well respected by lawyers and members of the community -- I still can't figure out what caused him to go crazy with this. I don't imagine that the pressure of a high profile case had much to do with it since the Michael Peterson case had just finished a year before.
4.12.2007 2:12am
whit:
bruce, spare me. the average cop has common sense. he would know these guys were innocent. it became apparent to anybody relatively quickly - well anybody who wasn't a leftist identity politicking ninny.

viscus, it is hard enough to be a conservative on campus. imagine being a woman and openly supporting the racist, hitler-like (yes, according to one of the players, he was compared to hitler by others) evil white privileged male rapists!

that they chose common sense and reason over rah-rah sisterhood says a lot. it was more heroic than the average college student ever has a chance to be
4.12.2007 2:36am
vic:
Er, wouldn't prison be a dangerous place for a former prosecutor to be?


prison is dangerous place - for anybody- why should the prosecutor be above the law
4.12.2007 2:51am
David M. Nieporent (www):
Why is Cooper such a good guy? Yes, he did the right thing today, but shouldn't he have done it a year ago? How long does it take to review a negative DNA test, conflicting statements, and the other evidence?
That depends if you want to do a Nifongian job or a good job, and it depends on whether you want to decide whether to prosecute or whether you actually want to exonerate. It takes longer to do the latter -- which is what Cooper did -- than the former.
Even before Nifong was taken off the case, didn't the state attorney general have the authority to overrule Nifong?
In fact, no. Not under NC's quirky system. In most states, local DAs are subordinate to the state AG, but not in NC. Only after Nifong asked to be taken off could Cooper step in.
4.12.2007 4:39am
A. Zarkov (mail):
Cooper had no choice. He had make the kind of statement he made to retain a shred of dignity for him and the legal system in this state. He gets no credit as far as I’m concerned because he should have put a stop to this hoax a long time ago.

The real story is not that of a rogue prosecutor and his negligent superiors, but the inverted world we live in today. A low life gets more credibility in the eyes of many in the media and academia than students from respectable middle class families. The Duke rape case accuser Crystal Gail Mangum has a criminal record. According to Wikipedia she stole a taxi in 2002, and after a high-speed chase tried to run down a deputy. Her sentence: 3 weekends in detention. Magnum also has a history of leveling false charges. She accused three men of rape in 1993. In 1996 she accused her husband of threatening to kill her. She has substance abuse problems. A DNA analysis found sperm from several men in various parts of her body and underwear. Yet law professors like Kathleen Bergin seem attracted to people like Magnum. Look at her web site. She’s a fan of Malcolm X, another low life. He was an illiterate pimp, drug dealer, and burglar who got rejected from the army as mentally unqualified. In our inverted society, school children spend more time studying Malcolm X than George Washington.

Circa 1976 Ben Stein wrote an article for the Wall Street Journal called “The View from Sunset Terrace.” Stein wrote about the inverted world of Hollywood crime show scriptwriters. In plot after plot the guilty party turns out to be not the obvious low life, but a respectable member of the community, usually a businessman. Is it any wonder after 30 years of living in an inverted world we get things like the Duke rape case hoax?
4.12.2007 6:04am
EH?:
I applaud the decision, but it can easily be justified on the most base of political grounds. Cooper's action is much more defensible across the political spectrum if he takes the rhetorical position that there was just nothing, NOTHING, there to implicate these defendants. Then when her remaining supporters attack his decision, he just throws up his hands and says there was nothing he could do, because there was just NO evidence. If he takes the less rhetorically extreme position (insufficient evidence, close call, just can't go to a jury without some corroboration), then her supporters are in a considerably stronger position in claiming that he should have let the process go forward.

Once he decided that the charges had to be dropped -- and the political pressure for that was overwhelming and made it inevitable -- then his best tactic, politically, was to make it appear that it wasn't even a close case: the charges just HAD to be dropped, no choice at all, because there was nothing behind them.

I'm not taking any position on the merits. I'm just saying that Cooper's rhetorical stance in dismissing is politically expedient.
4.12.2007 8:14am
Alan Gunn (mail):
My local paper's story on this--attributed to the L.A. Times--said nothing about innocence: just "not enough evidence to prosecute."
4.12.2007 8:53am
SP (mail):
Nifong threw away his prosecutorial immunity by directing the police investigation (i.e. not functioning as a prosecutor.

No, I don't think that's right. The police were only taking directions from him because he was the prosecutor, after all. It's not as though they were under the impression he was involved in the investigation as a private citizen. And it's not at all uncommon for prosecutors to be involved in the evidence-gathering process in a normal case.

I frankly don't know whether prosecutors have absolute immunity, but you sure aren't getting around it with arguments like this one.


The original post was correct. Prosecutors get absolute immunity in civil suits for prosecutorial acts, but not for anything that is investigative or administrative (for which they get qualified immunity). This question will all be a matter of characterization.

I don't know that they'll sue at all. I think it would be the perfect dichotomy and revenge. After all, Nifong had nothing on them and yet brought charges. How perfect for them to have everything on him and take the high road? Don't let anyone ever think this is even or that he has "paid" for his misdeeds.
4.12.2007 9:26am
Gomez Addams (mail):
I've always thought the penalty for prosecutorial misconduct should be imprisonment for the same period as the crime they were prosecuting. So Nifong would get a rape-equivalent term.

It's easy to dismiss this as overkill, but one can strongly argue that his crime is far more dangerous to society than an individual act of violence. How many juries are poisoned by this?
4.12.2007 9:50am
David Maquera (mail) (www):
Some cops don't have commons sense and are mean, vindictive, petty, vengeful little schmucks because they carry a badge and a gun. I could start a great post on a certain police chief in Michigan where I served as an elected official while in law school, but alas, time to start billing. Just do a google search for Berrien Springs and Kesterke and you'll find some "entertaining" material. Add Kaylee to the foregoing search terms and you'll begin to wonder just how unjust our justice system is sometimes.
4.12.2007 10:10am
AppSocRes (mail):
There's another aspect of this story that deserves attention: Nifong had a coc-conspirator in the Durham police department. I cannot recall the officer's name, but he has a long history of selectively enforcing ordinances against and arresting Duke students. He provided much of the apparently falsified evidence against the students in this case and it appears he has done similarly things in other, less-publicized cases involving other Duke students. It shows an incredible lack of judgement that the Durham police department has allowed this officer to patrol a community towards which he is apparently so hostile. At the least he should be investigated and, unless the outcome is a complete repudiation of what I have read in the papers, either be fired or restricted to a desk job where he can no longer trammel the rights of Durham citizens.
4.12.2007 10:16am
neurodoc:
Being from Durham, and being aware of Nifong's history as a pretty upstanding guy -- he was well respected by lawyers and members of the community -- I still can't figure out what caused him to go crazy with this. I don't imagine that the pressure of a high profile case had much to do with it since the Michael Peterson case had just finished a year before.

bornyesterday, that Nifong was up for election at the time and he wasn't clearly in the lead is an implausible explanation for the way he went about it?

SP, if you are right about a prosecutor's immunity, and I suspect you are, then are there no potential defendants to a civil suit brought by the lacrosse players? Unless they are going to be made whole by selling the rights to their stories, and that would have to bring them rather substantial $s to cover just the out-of-pocket expenses, then I would be surprised if no lawsuit was ever filed.
4.12.2007 10:27am
Jimmy Johns:
Throughout this entire disgusting debacle, I've been consistently surprised at how unconcerned 'leftwingers' (for lack of a better term) have been with the injustice these kids have suffered. But I've also been totally mystified by the enormous outpouring from the 'right' (again, apologies for the broadbrush strokes) regarding the grave injustice of trumped up charges and politically motivated prosecutions.

This is hardly the first case in North Carolina history were people have wrongly had charges filed against them, not is it anywhere close the most serious. Alan Gell wrongly spent years on death row thanks to Roy Cooper (yes, that Roy Cooper). Daryl Hunt spent 20 years in prison for a wrongful rape and murder conviction. Now exonerated, the state is offering him $500,000 for his troubles. Terence Garner was sent to prison for robbery he didn't commit, until a PBS documentary helped create the media pressure (nothing on par with the Duke rape coverage, of course) to set him free.

The people who were upset about the injustice in those cases (mostly 'leftwingers') should be equally outraged about this one. And the people who are upset about the injustice in the Duke Rape debacle (mostly, it seems, 'rightwingers') should be equally outraged other - potentially more serious - abuses whose victims get a lot less press.

I know that folks have been saying all along (as Finnerty said at the press conference yesterday) that "the whole world" was against these three kids. But it seems to me that they've had a pretty strong base of support for a very long time, on this blog and elsewhere. Would that same base be decrying the "injustice" of three black men accused (not convicted, just accused) of raping a white woman? What if the defendants in that hypothetical case were poor? Think it'd be in the national headlines every day? Would there be a similar outrage on the 'conservative' blogs, calling for the prosecutor's head?

As for me, I'm a North Carolinian (born and raised in Durham) and I couldn't be more ashamed of Nifong and what this tragedy has done to race relations in my home city, and to three innocent kids. But honestly, I have hoped - so far mostly in vain - that it would open a larger conversation about unjust prosecutions in North Carolina and elsewhere. People seem to have accepted that Nifong pursued these kids because they're rich and white, and so many voters in Durham are not. Can we also recognize - and be similarly outraged - that DAs elsewhere pursue flimsy charges against other defendants because they're poor and black?

To his great credit, Reade Seligman, one of the accused players, noted at the press conference yesterday the very issue I'm trying somewhat hamfistedly to get across:


"This entire experience has opened my eyes up to a tragic world of injustice I never knew existed," Mr. Seligmann said. "If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves."


Frankly I wish everyone else would see the issue as clearly as he does, and approach it with a little more principle.
4.12.2007 10:41am
A law unto himself:
Alan:

You can see the video of the news conference in several places including: http://hotair.com

Highlights:

"a rogue prosecutor"

"no evidence that an assault occurred"

"they are innocent"

After 3 months of investigation by two Special Prosecutors, this is a rousing defense of the young men. If you read any commentary such as: "something happened" or "not enough evidence", the commentator shows total ignorance or extreme bias.
4.12.2007 10:41am
Mark Poling (mail) (www):
Er, wouldn't prison be a dangerous place for a former prosecutor to be?

Personally, I don't have a problem with that in this case.

Throughout this entire disgusting debacle, I've been consistently surprised at how unconcerned 'leftwingers' (for lack of a better term) have been with the injustice these kids have suffered. But I've also been totally mystified by the enormous outpouring from the 'right' (again, apologies for the broadbrush strokes) regarding the grave injustice of trumped up charges and politically motivated prosecutions.

I don't think it's the right so much as the Libertarian strain of political weblogs, which correctly saw the case as paradigmatic of the dangerous confluence of unchecked government power and identity group politics.
4.12.2007 10:58am
AppSocRes (mail):
Jimmy Johns: You make a point that is important and universal. The adversarial trial system as it currently exists in this country creates two great injustices: The resources of government prosecutors are usually enough to overwhelm the resources that poor defendants can afford while, on the other hand, these same resources are usually much too limited to overcome the "hired gun" defense teams of wealthy clients such as OJ Simpson. Thousands of minor and undocumented injustices occur daily in this country when poor clients are advised by their attorneys to plead to offenses they may not have committed in order to avoid the risk of severe punishment. Hundreds of additional injustices occur when high-profile (publicity is money to new defense attorneys) or wealthy clients get excellent defenses that often overwhem limited prosecutorial resources, even when the defendants are more than likely guilty. It puzzles me why there is no discussion of unprivatizing/socialiizing law which, after all, is supposed to provide justice, a function that is far more traditionally and fundamentaly governmental than, e.g., the provision of medical care.
4.12.2007 11:06am
john w. (mail):
" ... "This entire experience has opened my eyes up to a tragic world of injustice I never knew existed," Mr. Seligmann said. ..."

a.) That's all well &good. Like everybody else, I applaud the fact that this mockery of justice has finally been de-railed. Unfortunately, I haven't seen anything to indicate that these three 'fine upstanding young gentlemen' [sic] have learned a rather basic lesson: Getting drunk and paying slutty women to come to your house and take their clothes off is a REALLY DUMB idea.

b.) What a pity that the accuser is going to get off scot-free! If I ruled the world, women who make false accusations of rape would get exactly the same punishment that their male victims would have gotten.

(Poetic Justice demands that she &Nifong share a cell for the next 30 years.)
4.12.2007 11:18am
Ken Arromdee:
This is hardly the first case in North Carolina history were people have wrongly had charges filed against them, not is it anywhere close the most serious.

In this case, the trumped-up charges weren't just done to benefit a local prosecutor's career, they were supported by feminist and black groups who railroaded the defendants in the name of feminism and fighting racism. The other cases you mention were injustices, but they weren't tied to powerful political movements the way this one was.
4.12.2007 11:19am
Truth Seeker:
Have we come to a point where rich white males are a persecuted minority? Perhaps universities should have required courses to dispell the animosity and hatred that the rest of society harbors.
4.12.2007 11:32am
BruceM (mail) (www):
This happened because prosecutors always believe a woman who says she was raped, no matter what the evidence. There is no such thing as evidence which proves a rape did not take place, and that means it is impossible to prove you are innocent (I realize a defendant never has the legal obligation to prove his innocence, but practically speaking it is important). "Negative DNA" just means the rapist did not ejaculate and the victim had sex with someone else before or after the rape. Conflicting statements by the victim just show how upset, horrified, and traumatized she was/is over the incident. All she has to do is cry and the prosecutors will believe her and vigorously try to convict the man she says raped her. Plus, the prosecutor knows that any defects in the victim's trustworthiness or character (she's a prostitute, drug addict, and has cried rape 68 times before during the past 5 years) will be protected insofar as the defendant will be prohibited from going into those areas during trial due to rape shield laws. Beacuse jurors don't like rape, the prosecutors know that as soon as the victim cries on the stand, they have the case won 8 times out of 10. Because the victim will constantly talk about her nightmares (just like all fake victims) and how she needs justice and how she wants the defendant off the street, the prosecutor (as well as any cops involved) will believe every word she says.

I'm not surprised Nifong was so vigorous in this case. A woman said she was raped. There are at least 100 rape prosecutions going to trial in America this morning based on just as flimsy evidence (except that in many the defendant is black, which of course makes the case agaisnt him stronger in the minds of most American jurors). I'm surprised they dropped the charges. A woman says she was raped. Raped! RAPED! And now these defendants are avoiding justice so they can rape another day? This is what's going through the mind of all prosecutors, not just Nifong. Innocent? Why are they innocent? That the rapist didn't leave behind DNA isn't a per se exculpation in any state in this country.

Of course I believe the charges should never have been brought, but I think most women (particularly those under 21) who call the police and say they were raped are lying their assess off because their boyfriend didn't buy them a big enough box of chocolates for valentine's day, and having him thrown in prison for the rest of his life for rape is the only thing the girl can think of to get back at him. Next time get the biggest box of chocolates (no nuts!).
4.12.2007 11:41am
Houston Lawyer:
Truth Seeker

Try reading Bonfire of the Vanities. So long as it is PC to call all white people and particularly white males oppressors and privileged, such racially motivated prosecutions will be encouraged.

I applaud Cooper for vindicating the accused. I would like to see the media types hound the professors who signed the Gang of 88 statement with video cameras asking for their reaction.
4.12.2007 11:43am
Sparky:
Not to take anything away from Cooper, but Nifong would still be in charge of the case if it wasn't for the North Carolina State Bar bringing charges against Nifong.

And how often does a bar association charge a sitting District Attorney with ethics violations? That took guts.
4.12.2007 11:54am
rarango (mail):
Selilgmann's well taken observation is precisely why the NC NAACP in particular missed the boat on this--How many other folks have been prosecuted in this manner? Their argument should have been if this can happen to rich white men, what about poor black men--or something along those lines; they, unfortunately, succumbed to race baiting.
4.12.2007 11:55am
pete (mail) (www):
"This happened because prosecutors always believe a woman who says she was raped"

You do realize that you posted this comment on a post about a prosecuter who just held a press conference saying he does not believe a woman who says she was raped?
4.12.2007 12:03pm
great unknown (mail):
For a clear analysis of when prosecutors enjoy absolute immunity and when they only have qualified immunity, I refer you to this recent Ninth Circuit decision (one of the few from that Circuit where "clear analysis" is appropriate):

Goldstein v Van de Kamp

In reading pp. 6-8, I note that Nifong's instructions to the police to conduct a flawed "lineup", his public prejudicial statements, and his instructions to the DNA lab to supress information probably do not fall under absolute immunity parameters, although his supression of exculpatory evidence unfortunately does.
4.12.2007 12:06pm
Jimmy Johns:
I hope I was clear in my earlier post, but let me being by repeating: I think that this case is a massive injustice which has done lasting damage to the lives of three young men and to Durham itself.

But I’m not entirely convinced that the other injustices I mentioned “weren't tied to powerful political movements the way this one was.” I think that in many cases they (and other unjust prosecutions) were tied to powerful political and social forces, just not the same ones (feminist and black groups), that have gotten so much dander up around here. When prosecutors wrongfully pursue defendants who are poor and black because that’s what they think voters want, it’s just as appalling as when Nifong pursues three defendants who are white and affluent because that’s what he thinks his voters want. Either way, it’s racism and classism—powerful political forces, if not exactly “movements.” And all I’m saying is that we should these injustices for what they are, no matter which political movements are pushing for or against them, or what the identities of the unjustly accused.

A few posters have commented on the fact that the charge here was rape, and that part of the injustice—and, by implication, the reason for the outpouring of anger against Nifong—is that such rape charges can often be unsupported, ruining the lives of the falsely accused. Again, I have to point out that the problem is a lot wider than the discussion. Historically, and especially in the South, the victims of false accusation generally are not affluent white men, but black men, often poor, accused of raping white women. The South (of which I am a proud if sometimes exasperated son) has a long and sordid history of questionably-supported, racially-motivated rape prosecutions, which I rarely hear rightwing (again, apologies for being overbroad here) bloggers raising with nearly as much fury.

Also, in the interests of intellectual honesty, I note that some scholars have recently questioned the received wisdom about racially motivated rape prosecutions in the South.

Finally, I think that rarango is on point that leftwingers (perhaps including the NC NAACP) should have tied their anger to something more important and concrete. My only point is that everyone else should do the same.
4.12.2007 12:11pm
pete (mail) (www):
"Er, wouldn't prison be a dangerous place for a former prosecutor to be?"

Maybe Nifong should have thought of that before he suborned perjury and conspired to obstruct justice. More than pretty much anyone else in our society, prosecuters should know the consequences of breaking the law.
4.12.2007 12:19pm
John Burgess (mail) (www):
Alan Gunn: I found it curious, too, that The Washington Post's main story on this was devoid of the word 'innocent' also. In fact, out of several articles, only an op-ed cites the term.
4.12.2007 12:27pm
Hector Calvo (mail):
I am happy of the acquittal but think the piling on of Niflong seems a bit overwraught. My guess is that on some level he initially thought a rape occurred and then handled the intense pressure of the situation very badly (maybe panickly). I don't think that there are many people who could respond to having a case unravel so completely in such an intense environment without doing something that at the end of the day they are not proud of.
4.12.2007 12:31pm
BruceM (mail) (www):
Pete: he's not a prosecutor, he's the AG. And I believe the AG came to this decision due to public outcry and outrage, not due to his belief that the defendants were, in fact, innocent.
4.12.2007 12:34pm
calmom:
I think the NC Attorney General should have gone further and charged the woman with filing a false police report.

And rape shield laws should be re-examined. It makes no sense that these innocent young men will go to their graves known as the 'accused Duke lacrosse team rapists' while the woman who made up the story entirely and has never recanted or even said she was sorry is virtually anonymous.
4.12.2007 12:54pm
A law unto himself:
Wow, Bruce, that's quite a "belief" you have!

Did you in fact listen to the AG's press conference, detailing of the investigation that his SPs undertook over the last 3 months?
4.12.2007 1:00pm
Charlie (Colorado) (mail):
Duke administrators and faculty will have a harder time showing they acted in good faith.

The Duke administration acted in perfectly good faith and in complete accordance with their highest values: they thought they could "get out in front" and thereby attract more donations. Student rights, justice, and "innocent until proven guilty" were, of course, secondary.
4.12.2007 1:04pm
Jeff Shultz (mail):
A low life gets more credibility in the eyes of many in the media and academia than students from respectable middle class families.

It should be remembered that those "students from respectable middle class families" hired that "low life" to strip for them... she didn't just walk in and volunteer, you know. The guys aren't saints here, merely innocent of the charges made against them.
4.12.2007 1:16pm
Adeez (mail):
Great posts Jimmy Johns. What many fail to understand is that a common belief amongst liberals is suspicion of government power. "We" generally like the protections afforded the accused in this country and abhor unfair prosecutions. That's why I believe liberals are far more likely to not associate with the D's or R's and instead view them both with suspicion as part of the Establishment.

But it is in vogue here to attack liberals. So, if one person, or group, does/says something outrageous (or just plain dumb), and that person/group espouses positions that can be deemed leftist, then that casts aspersions on the entire universe of liberals. And commenters then could feel free to paint liberals with a broad brush.

For what it's worth, this liberal of course believes that Nifong overreached and am disgusted by it, as I am by ALL incidents of governmental abuse of power. But what's the point of being a ditto head and adding to the clear consensus? And as you point out, the shoe was historically on the other foot the vast majority of the time. But that won't stop others from believing that white men are an oppressed minority. And to those who hold such beliefs, I recommend the Lucky Ducky cartoons by Ruben Bolling.
4.12.2007 1:20pm
Derrick (mail):
Have we come to a point where rich white males are a persecuted minority? Perhaps universities should have required courses to dispell the animosity and hatred that the rest of society harbors.


No, we aren't there but please enjoy while black and brown young men in this country get persecuted and sent to prison every day for minor offenses and shaky witness testimony.
4.12.2007 1:23pm
rarango (mail):
"But is in vogue here to attack liberals." For those of us who view liberals in the mold of JS Mill, that is, classical liberalism, we acknowledge that classical liberalism is closer to libertarianism than classical liberalism is to "progressivism." And to be fair, for the most part, liberals aren't attacked as liberals; it is their positions that are attacked. I like think there is an important distinction.
4.12.2007 1:26pm
A law unto himself:
Calmom:

I think the AG's reference to the "sealed record" on the accuser implies... how shall we say this... diminished capacity.

Nifong did not personally interview her for 8 months. He didn't want to know...
4.12.2007 1:30pm
Nikki:
calmom: on the morning sports radio show I listen to, they played various sound bites from the AG's speech, including (IIRC) one where he said that he believed that the accuser believed something happened. This is probably why she hasn't been charged. (That, and that if it hadn't been for the prosecutor, things might not have fallen out as they did.)

Jeff Schultz: agree 100%. (Also, the previous encounters with the law, "Thank your grandpa for my nice cotton shirt," etc.)

It's tempting to think that maybe Mike Nifong played on the town-gown tensions to get re-elected ... but I certainly can't be absolutely sure of that.
4.12.2007 1:32pm
OK Lawyer:
I wonder when we will hear Mr. Sharpton's apology to these players.

The comparison between this case and the Imus case are striking to me. Don Imus is a horrible racist, but the people who viciously attacked these players are not? Why is it okay to hate white people, but no one else?

We have created a double standard in this country that prevents any real meaningful discussion of race.

Nifong should be disbarred.
4.12.2007 1:55pm
whit:
"a.) That's all well &good. Like everybody else, I applaud the fact that this mockery of justice has finally been de-railed. Unfortunately, I haven't seen anything to indicate that these three 'fine upstanding young gentlemen' [sic] have learned a rather basic lesson: Getting drunk and paying slutty women to come to your house and take their clothes off is a REALLY DUMB idea. "

no, it's not. it's good clean american fun!

get real.

im sorry, it's COLLEGE. getting drunk and looking at slutty women is required.
4.12.2007 2:15pm
Jeff Shultz (mail):
im sorry, it's COLLEGE. getting drunk and looking at slutty women is required.

Hmm. Somehow I graduated without taking that class.
4.12.2007 2:47pm
A law unto himself:
Jeff:

Its not really required, but it is a very popular elective.
4.12.2007 2:55pm
Joe Bingham (mail):
If you want to read something outrageous, check out this post. Tenured professor at Wesleyan. Among other things, she writes


I think the comparison of this to the pattern of media representation that we saw as the the Duke men's lacrosse team scandal unfolded over the last year is instructive. When it became clear that Durham prosecutor Michael Nifong had run roughshod over the investigation, and that the exotic dancers may have made charges that were untrue or inaccurate, those nitwits down at Duke who have been wearing the 'Innocent' bracelets claimed that their faith in the players was vindicated. This view has been tacitly, if not explicitly, supported by the media as accounts of team behavior in general have dropped out of the news. But really — although the lacrosse players may not be guilty of a prosecutable crime, that does not make them innocent. Many players who were under legal drinking age spent the entire day of the incident drinking (illegal); the dancers were, it is clear, physically if perhaps not sexually assaulted; and this behavior was part of a pattern of ingrained, anti-social behavior that repeatedly led to people being targeted by team members for violence, either on the streets or at team parties (and do we think that women have not been raped at Duke lacrosse team parties? that women under the influence of drugs and alcohol have not been coerced to have sex without their explicit consent? Think about it.) The ethical culture of this lacrosse team was so out of touch that many players who were not involved in this incident, and who did not do anything wrong, still refused to speak about what had happened, in the misplaced belief that loyalty to one's friends is a higher virtue than treating people who aren't on your team with respect. And in the face of all this unethical behavior on the part of the lacrosse team, a great many people at Duke — most prominently, the women's lacrosse team — still insist on characterizing these profoundly screwed up young men as 'innocent.'



Unreal. I apologize for the long comment. This is an example, though, of the attitude among a lot of A&S academics, and this sort of analysis is why a statement from the AG absolutely needed explicitly to declare them innocent.

JJ has good points about consistency. I think most right-wingers would be just as outraged about other cases; the problem is that cases that don't fit the perspective of the mass media don't get the initial attention this case got. This story got attention because it initially fit the prejudices of the left.
4.12.2007 2:56pm
whit:
fwiw, i find it ironic that the same people who use every bad search warrant, etc. as a "reason" to get rid of the war on drugs - don't use this case as a reason to get rid of the WAR ON RAPE.

:l

obviously, any crime investigation can be hampered by incompetence or evilness.

and btw, i am against the war on drugs, i just don't think the occasional bad warrant etc. is some sort of "proof" of how bad it is, etc.
4.12.2007 2:59pm
Stash:
Er, anybody notice that the Duke case has implications for the U.S. Attorney scandal? In other words, doesn't it dramatically demonstrate the danger of exalting politics over prosecutorial norms? Certainly, (at least not yet) there is not the kind of evidence with regard to the AG's office that hangs on Nifong, but there is at least some smoke in that area. (For example, the case of Georgia Thompson, an apparently innocent State official who also had her life ruined, and who was freed during oral argument in front of the 7th Circuit suggests such a prosecution). I think the serious question is not the firings per se, but rather whether they were part of a mechanism for enforcing a policy of overriding prosecutorial norms for political advantage. However impure the democrats' motives are in pursuing this case, people with a commitment to due process in the courts should be interested in finding out the truth.

In short, those, who like myself, were extremely skeptical of the Duke case from the beginning and were shocked and dismayed by Nifong's conduct, should, if the evidence so demonstrates, be equally ready to condemn Gonzales and any other participants with similar venom.

In the end, of course, there will always be "pot-bangers" on both sides of any issue who will never admit error. The problem with the Duke case was not the nature of the politics that intruded into the prosecution, but the fact that politics was allowed to pervert the administration of justice.

So, those who decry the Group of 88 for prejudging the case, should look to themselves and ask whether their view that a vast injustice is being perpetrated by the AG investigation is equally premature. And, should it turn out that political ends did create prosecutorial abuses, one should ask the same candor from a new AG that Cooper demonstrated. And those who refuse to acknowledge the evidence will be, in my book, just as hypocritical and discredited as those who refuse to acknowledge the abuse and injustice that took place in the Duke case.

What people on both sides of the aisle need to learn, is that a good plurality of the public has a BS detector that both sides regularly fail.
4.12.2007 3:07pm
Joe Bingham (mail):
Someone's channeling everyone favorite legal commentator, Dahlia Lithwick.

(Joke. Not my favorite commentator.)
4.12.2007 3:09pm
whit:
the idea that it is unethical to hire a stripper, or drink alcohol before the age of 21 is absurd, especially coming from the critics of the left.

they were engaging in "ingrained anti-social behavior" by drinking alcohol and watching strippers?

cmon.

you can't make this stuf up
4.12.2007 3:36pm
WHOI Jacket:


It should be remembered that those "students from respectable middle class families" hired that "low life" to strip for them... she didn't just walk in and volunteer, you know. The guys aren't saints here, merely innocent of the charges made against them.


Let it be noted for future prosecutions that male defendants bachelor parties can and will be held against them in a court of law.
4.12.2007 3:37pm
whit:
note also the illogic from many websites and commentators.

in the beginning, we were told it was COMPLETELY WRONG to "judge" the accuser by noting that she was a stripper, with a history of (unprosecuted) gang rape claims, who was intoxicated, whose own friend thought she was full of it, etc.

but clearly, frat boys (note that stripper is not a perjorative, but "frat boys" is ) who hire a STRIPPER are clearly bad people

the same people who say not to judge somebody (or even take note) of the fact that the accuser IS a stripper, want it held against the INNOCENT victims of her false allegations, that they HIRED a stripper.

ah, the irony
4.12.2007 3:43pm
ed o:
I imagine that similar things would occur with similar accusations at most of the institutions inhabited by the academics here. It would be hard to imagine professors not jumping on the same bandwagon, be it at Duke, Harvard, Yale or the community college down the road.
4.12.2007 3:43pm
The Drill SGT:
SP, you don't think they'll sue?

I tried to find an interview I saw that was done with the 3 families in Dec after the DNA coverup was displayed in open court. I think it was Kathy Seligmann who summed up the family's answer to your question. It went something like:

"I don't blame the accuser, I blame the prosecutor. An before this is over he's going to regret what he has done to us"

I expect that they will sue:

Durham
False accuser
Nifong personally
SGT Gotlieb
DET Himan
INV Linwood (sp?)
Crime Stoppers
DPD PAO Corporal
DUKE
Brodhead

It will be interesting to see those depositions of the PD folks and how fast they roll over on Nifong.

Dopes anyone know what the joint liability law is in NC?
4.12.2007 4:12pm
Hoosier:
So I now must confess.

I was a perpetrator of ingrained anti-social behavior when in college. I didn't attend strip clubs or parties with strippers. But I drank a fair amount of bourbon, and this before I turned 21.

I will turn myself over to the Chicago Police Department next time I'm in town, though I suspect the statue of limitations has run on this crime. Plus they all enjoy a beverage on occasion. Which just proves that this is a cultural sickness.

But, like Prof. Potter, I'm left to wonder: There were so many crimes committed in Chicago in the late '80s. How do we know that I wasn't involved in /all/ of them? 'Think about it indeed,' perfessor.

I wish I'd gone to Wesleyan.
4.12.2007 4:15pm
Jam:
Here in Houston we had the problem that the Houston Police Department Lab wa found to have been dry-labbing results. Meaning that they made reports on the outcome of the DNA test without haveing actually done the test.

To my knowldege nobody involved in the fraud, nobody, has gone to jail.


http://www.chron.com/disp/story.mpl/topstory/3206160.html

Crime lab faked results in 4 cases, probe finds
The allegations — the first aimed at HPD's drug unit — could be the harshest yet


Houston Police Department crime lab analysts fabricated findings in at least four drug cases, an independent investigator reported Tuesday, including one in which a scientist performed no tests before issuing conclusions that supported a police officer's suspicions.

The allegations of so-called "drylabbing" — concocting results without conducting analyses — may be among the most serious leveled thus far in the more than two years since the crime lab came under scrutiny.

(snip)
4.12.2007 4:37pm
A. Zarkov (mail):
Jeff Shultz:

“It should be remembered that those "students from respectable middle class families" hired that "low life" to strip for them.”

I did not refer to Crystal Gail Mangum as low life because she is a stripper. I didn’t even use the word “stripper.” I called her low life because of her past criminal acts, substance abuse, and promiscuity. Being a stripper doesn’t make anyone low life. Nor does it comprise anyone who hires one. I don’t see how the fact that someone in the fraternity hired a stripper in any way compromises the accused students affects their credibility or impugns their character.
4.12.2007 4:39pm
whit:
according to campus leftists, drinking alcohol and hiring a stripper is anti-social.

if you want to be pro-social, you must hire a performance artist, smoke weed, and discuss chomsky.
4.12.2007 5:23pm
John Herbison (mail):
Nifong is not out of the woods yet as to damages liability. A state prosecutor has absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the State's case at trial. As to administrative or investigative functions, only qualified immunity applies.

For example, absolute immunity does not apply to a prosecutor's giving legal advice to police. It does not apply to preindictment fabrication of evidence. It does not apply to making false and prejudicial statements to news media, whether before or after indictment.

The doctrine of absolute prosecutorial immunity from suit for damages is one of the more pernicious examples of "judicial activism" in the history of American jurisprudence. In the seminal case on prosecutorial immunity under 42 U.S.C. § 1983, Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court candidly acknowledged that the statute "creates a species of tort liability that on its face admits of no immunities". Id., at 417. The text of the statute then read:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."


The Imbler court decided in essence that prosecutorial immunity from suit for damages is derivative of judicial immunity, which had been recognized in such cases as Pierson v. Ray, 386 U.S. 547 (1967), and Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). No hint of any self-interest as to the jurists who decided this line of cases, is there?

The doctrine of prosecutorial immunity is quite simply cut from whole cloth. Perhaps the Durham case should serve as a catalyst for Congress to amend § 1983 to abolish this judge-made doctrine, at least in egregious cases where a state prosecutor acts maliciously or corruptly.
4.12.2007 6:49pm
Elliot123 (mail):
It's wondeful the trumped up charges against the students were dropped. But it's very disconcerting to see how many people in responsible positions are ready to step into Nifong's shoes and do the very same thing. Look at the drivel the academics and press have been churning out for the last year. Who? Well Feminist Law Profs and the New York Times might be a good place to start.
4.12.2007 7:01pm
Cullen (mail):
I was also impressed that the NC AG gave such a comprehensive declaration of the Duke players' innocence. In nearly every criminal case, the best a defendant can hope for is "not guilty beyond a reasonable doubt" which is a long way from innocent.

Still, I wondered whether the AG's sweeping statements, including his criticism of state officials, might harm his client: the state of North Carolina. If a claim is brought against the District Attorney, it occurs to me that any judgment may end up being paid from the coffers of the North Carolina treasury. Any good 1983 lawyers posting who have a sense whether, on balance, Cooper's statements help or hurt his client?
4.12.2007 8:30pm
Daniel DiRito (mail) (www):
By all accounts, the local District Attorney sought to manipulate the system and the media to further his own agenda...regardless of the intended purpose of his office...to determine the guilt or innocence of the alleged perpetrators.

Essentially, our culture has devolved into the serial practice of partisanship without regard for the individual or the pursuit of the truth. We're not looking to find the truth, we’re looking to create truth and that is a pivotal distinction. As such, each issue becomes the flagship for opposing interest groups and the epicenter for partisan politics. Those actually involved in this and other incidents (and they are often victims) become nothing more than pawns in an elaborate game of chess...and they are frequently further victimized.

These situations shouldn't be about whether liberals or conservatives, this race or that race, hip hop or honky-tonk, one group or another, are more offensive and therefore more responsible for all that is wrong with America.

I'm not a religious person...but I often find kinship with the imagery surrounding the portrayal of one called Jesus and his teachings of understanding and forgiveness. For all the banter I hear about the Bible and Christian values, it certainly seems to me that we are fast abandoning what many view as the sacred "tablets" in favor of the sacrosanct tabloids. If I'm right, all I can say is heaven help us.

Read more about the dynamics that lead a situation to become larger than the sum of its parts...here:

www.thoughttheater.com
4.12.2007 9:21pm
RainerK:
Daniel DiRito:

Thanks for the link. Spoken right from my heart far more eloquently than I ever could!
4.12.2007 10:48pm
John Herbison (mail):
Cullen, the prevailing interpretation of the Eleventh Amendment bars damages suits which would require payment of damages awards from State treasuries--another example of judicial overreaching in contravention of plain meaning. The spirit of Lewis Carroll's Humpty Dumpty ("When I use a word . . .") lives on in the federal judiciary.
4.13.2007 2:13am
John Herbison (mail):
On the other hand, if the legislature of North Carolina is stupid enough to indemnify officials like Nifong as to individual liability where such officials operate outside the umbrella of damages immunity, then the electorate that chose such legislators deserves to be hosed.
4.13.2007 2:17am
Malvolio:
I wondered whether the AG's sweeping statements, including his criticism of state officials, might harm his client: the state of North Carolina.
The AG represents the people of North Carolina and, more abstractly, the law. If I were a tarheel, I would be very proud of my AG today, even though in the short run, his statement will probably end up costs the taxpayer (i.e., me) some money.
4.13.2007 3:19am
Harvey Mosley (mail):
Slightly off topic question -

How can an intoxicated man be guilty of rape (or anyone who is intoxicated be guilty of DUI), while an intoxicated woman can't give consent to sexual activity?
4.13.2007 6:21am
Harvey Mosley (mail):
In response to Jimmy Johns -

I do find the cases you talk about to be just as abhorrent. However, I depend on other sources to bring me the information. I don't have the resources to examine every charge of rape, but the media does. They are the ones who need to expose these other cases to us, so we can create the uproar in those cases that was created in this one.
4.13.2007 6:29am
occidental tourist (mail):
I maintain apartment buildings adjacent to the Brown University campus. Despite my growing sympathies for the great traditions of western civilization, I cannot place the actuality of contemporary fraternal student lifestyles amongst its great achievements or necessary rites of passage.

The long quote posted by Joe Bingham from the even longer rant by some post-modernist Wesleyan professor actually has a point, it is just submerged in the various mendacious rhetoric implying inter alia that males empowered by the sexual revolution are essentially committing rape by definition.

The exoneration of the Duke 3 of a crime is not an exoneration of the lemming like lowest common denominator culture of these de facto fraternities. I'm not jumping prudish about stripping and underage drinking, nor even about various questionable behavior committed under the influence.

What I have seen is that the lack of inhibition once associated with Alcohol is extending into the entirety of student life. They kick in each others doors, beat the crap out of walls, rails, occasionally each other without the necessity of elevated blood alcohol.

Ironically, those who think there is something amiss with aspects of campus culture probably have a point, but their marriage of this discussion to their world view provides us with incoherent commentary that insures no useful discussion on the subject is likely to take place.

Brian
4.13.2007 9:04am
whit:
as a former fraternity member AND LAX player, i call rubbish on the last post.

the "lemming like lowest common denominator"?

typical of elitist attitudes towards frats

and jocks, for that matter
4.13.2007 12:02pm
ed o:
why, according to Terry Moran, the players should be grateful after spending huge sums of money to defend themselves from bogus charges trumped up by a prosecutor to get black votes. the players certainly didn't have it as bad as the Rutgers basketball players, who were called nasty words.
4.13.2007 1:05pm
Zoe E Brain (mail) (www):
Orange County, a few days ago: Defendant has timestamped photos (published on the web the day they were taken too) and multiple witnesses showing she could not have been at the scene of the alleged crime at the time it occurred.

The DA, when told of this, takes her pre-teen daughter into care as an "endangered child", and the defendant is told she'll never see her stepdaughter again. But if she cops a plea, her partner will be given custody, instead of some unlicensed agency.

She pleaded Guilty of course, and is now in a male prison as the result. She has Harry Benjamins Syndrome - looks female now due to hormones, but hasn't had surgery yet.

We're not sure she's both alive and sane now. Some hardened sex workers have survived such experiences, but this gal runs a web hosting service. She's due for release in November, but no-one expects her to survive that long.

Feral Prosecutors can and do wreck lives, and condemn people to fates quite literally far worse than a mere Death penalty, because "winning" by fair means or foul is everything. It happens in America, in 2007. There's plenty more like Nifong.
4.13.2007 5:17pm
Mark_in_Texas (mail):
A few years ago, the cops who arrested Rodney King were sent to prison on a charge that was something like "violating civil rights under the color of law".

I am not a lawyer so could one of the attorneys here explain to me why Mike Nifong should not be prosecuted for the same crime?
4.14.2007 8:13am
occidental tourist (mail):
Whit,

you can accuse me of emperical bias, I suppose I could lob a dose in the opposite direction, but that would simply be tit for tat.

Are you suggesting that what I've seen with my own eyes is inconsistent with student life generally, or simply inconsistent with LAX and/or the greek system.

I would stress that the majority of the circumstances I have observed were de facto social order -- occasionally members of a particular sports team renting together, but these are not recognized faternaties. I am open to the argument that the discipline of purpose associated with the pursuits you engaged in might actually have some sobering effect although I can't say I've observed any significant difference between sports associated and non-sports associated households.

But year in year out I can tell you that behavior is worse, period -- not behavior while drunk, behavior while sober. I am the first to admit that you and I represent a very small sample, but if you have evidence to the contrary, besides your own experience, then don't call rubbish, point it out.

Brian
4.16.2007 10:56am
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