From Tragedy, To Farce, To Peewee Herman?

The Duke lacrosse case continues to unravel.

The latest defense motion reveals yet more DNA samples found in the accuser's body, that are not identifiable to any suspect. Prosecutor Mike Nifong did not disclose any of these to the defense, as both North Carolina and U.S. Constitutional law require him to do.

In a complex case, mistakes are sometimes made. Prosecutors are sometimes over-zealous. That's improper and can be unethical.

Nifong's conduct, if the defense motion proves correct, goes way beyond mistakes or excess of zeal. This was a conscious attempt to keep a frame-up going, at least past election time.

Where is the outrage from Duke officials? If these defendants were not middle-class white athletes there would be yowls of protest and mass demonstrations.

I'm not going to let any child of mine apply to Duke. The only person who should go to jail is Nifong; it's that bad. Dismiss this outrageous case now!

Ticket time for Mike Nifong?

The North Carolina Bar has upped the ante by amending the charges against Mike Nifong, the prosecutory in the Duke lacross team rape case. Now they're accusing him of withholding evidence and lying to the court, not just improper pretrial publicity.

This is what lawyers call "ticket time"--where you risk losing your license to practice.

White Shoe Law Firms vs. the Neocon-Christer Mafia

Boy Genius Eugene Volokh

The Volokh Conspiracy is my favorite law blog. Eugene Volokh, leader of the pack, is a law professor and former child prodigy at my alma mater, UCLA Law School, and writes on free speech and slippery slopes, among other things.

On this page, posts are gathered together about the remarks of deputy assistant secretary of defense of detainee affairs Cully Stimson, who questioned the number of major corporate law firms who had signed up to represent detainees at Guantánamo Naval Base, who are, of course, suspected or accused of terrorist activity and affiliations. Stimson suggested that corporate clients pressure these Establishment firms to eschew these representations. Critics, including the Volokh conspirators, piled on the heretic. After a barrage of press and blogosphere discussion, Stimson recanted. However, as Galileo is supposed to have said, the moon still moves.

One of the question laymen often ask lawyers is why they represent people who are obviously guilty of heinous crimes. The stock answer is that to insure we have a fair system, everyone is entitled to representation, and if the goal of representation for everyone is to be achieved. In the abstract, I agree with the statement, although of course many who represent unsavory defendants have other motivations, such as money, fame, making political points, and sympathy for the accused or their plight. None of these motivations is necessary to be condemned, either, but one need not acknowledge the nobility of the actions of lawyers like Lynne Stewart, who was convicted of providing non-legal assistance to the convicted terrorist Omar Abdel Rahman, known as the "Blind Sheikh," or the communist lawyers whose representation of unpopular defendants is said bys ome to have been designed to propagandize about the unfairness of the system, as opposed to achieving the best results for their clients.

Because of the importance of providing representation to all, it's considered unethical to try to dissuade a lawyer from representing a particular defendant. The criticisms that Stimson drew are understandable from this perspective.

And yet, it's worthy of comment that these white shoe firms have flocked to work on this particular issue. The younger lawyers in these firms are perhaps influenced by legitimate concerns for the innocence of some of the detainees (many apparently got swept up in post 9/11 operations more or less at random) and the procedural confusion attendant upon their incarceration, and the professionally interesting constitutional issues raised by the clients' situation. Are they also salivating in response to the conditioning they received at the major law schools, with their heavily left-wing culture, and their location in the blue-state word-worker élite that regards Bush & Co. as a bunch of Bible-thumping fascist rubes, and the Guantánamo cases as a blow against some neocon-Christer Mafia?

The white shoe firms' choice of pro bono clients is not a legitimate target of government pressure, but why these folks choose to do what they do is a proper subject of public discussion.

Nifong Bows Out

Michael Nifong, the rogue prosecutor in the Duke lacrosse team case, has finally come to his senses enough to ask the state Attorney General to appoint a special prosecutor in the case. Grounds: the State Bar investigation creates a conflict of interest.

I can't imagine the case lasting 48 hours once this happens.

Circumstantial Evidence

The long-delayed murder trial of Michael Goodwin is finally over. Goodwin was charged with the murder of a former business associate, Mickey Thompson, and his wife.

The Thompsons lived in the small, wealthy foothill community of Bradbury. Two black men rode up on bicycles and shot the couple. Goodwin fled the country, and supposedly lived on a sailboat in the Caribbean for years, but ultimately returned. He was arrested, tried and convicted.

No one saw him do it, and there was no physical evidence such as DNA, fabric, or ballistics connecting him to the crime. The actual killers have never been found and for all we know may have been killed themselves. The evidence consisted, among other things, in Goodwin's threats to kill Thompson, his flight, and reports by witnesses who said they remembered, years later, that they had seen Goodwin in the neighborhood shortly before.

I'm not going to rehash the trial. The papers have done that, and no doubt there will be a book out before long.

The point here is about the law of evidence. Many non-lawyers think that "circumstantial evidence" is legally inferior to direct evidence, as when a witness says he saw the event in question. Not so. Circumstantial evidence has the same standing as direct evidence, and a jury can convict a defendant even of murder based entirely on circumstantial evidence. (In the Goodwin case, there was some direct evidence--descriptions of the crime scene, autopsy results, and so on).

Here we have motive and opportunity, flight as reflecting consciousness of guilt, and the evidence of Goodwin's presence at the scene before the killings. All of this is circumstantial evidence, and it's undoubtedly legally sufficient to convict. On appeal, the fact that the evidence may seem thin won't be enough for a reversal; if a reversal comes it will be due to legal error, not insufficiency of the evidence. An appellate court doesn't need to find guilt beyond reasonable doubt. It just has to find sufficient evidence to make out a case on which a jury could convict.

So, surprise and delight (or annoy) your friends. Next time they say, "It's only circumstantial evidence," set them straight.

Another Suspect Prosecution

Prosecutors in the United States have ethical duties different from those of other lawyers. Although most lawyers' duty is to represent their clients zealously, within the bounds of the law, prosecutors' obligation is to convict only the guilty. Theoretically, they represent "the People" ("What a majority!" as the defendant in the joke says, as the case of "People vs." him is announced). "The People" want to convict only those found guilty beyond a reasonable doubt, obliging a prosecutor not to try the innocent. Moreover, loyalty to the system should limit a prosecutor's zeal to convict if only improper tactics, such as concealing evidence, appear likely to secure conviction.

Mike Nifong is District Attorney in Durham, North Carolina, where the would-be Harvard of the South, Duke University coexists uneasily with a heavily black town. Earlier this year, some Duke lacrosse players, all but one of them white, in the way of a certain kind of young men, hired two black strippers to perform at a party, where no doubt some of them drank too much. One of the strippers got hysterical and cried "Rape!"

Politics overlays any rape charge, and especially an interracial one. Two movements, the black civil rights movement and the women's movement, have made an issue of rape. At one time, false charges of rape of white women against blacks led to controversial convictions and causes célebres. The fear of race-mixing and the taking of white women by supposedly sexually powerful and animalistic black men was a theme in racial politics. Meanwhile, in the Old South, it was common for powerful white men to have their way, more or less secretly, with black women. An example is the late Senator Strom Thurmond's posthumously disclosed fathering of a child with a young black housemaid, a child he supported, to his credit, all his life.

The women's movement, on the other hand, developed a narrative that violence against women was one means of maintaining what they saw as inequality between the sexes, with rape being too common and insufficiently punished, in a number of ways. Susan Brownmiller was one of the first writers to argue these points, typically intensified to the frontiers of madness by the late Andrea Dworkin. This agitation led to legislation that restricted inquiry into accusers' sexual histories to invoke the "she got what she deserved" meme, and criminalized rape within marriage. The notion that even an unchaste woman should not be forced into sexual relations by violence became commonplace. Supposedly rampant "date rape" became the subject of endless agitation on college campuses.

The events in Durham invoked the concepts of both movements. Blacks were likely to regard the supposed rape as a throwback to the era of Jim Crow and unpunished white violence against black women, while the stereotypes of the drunken, privileged college athlete and the victimized young black girl led a rush to judgment. Some 88 Duke faculty members, mired in gender politics and multiculturalism, were quick to issue a statement. Duke's President, Richard Brodhead, suspended the lacrosse program and issued self-flagellating statements.

Meanwhile, DA Nifong was in a struggle to be elected to the office for the first time after his appointment. There was a rush to judgment, Nifong hyped the story and the press obliged him, and three lacrosse players were indicted. Nifong was narrowly elected.

The accusations began to unravel almost immediately. The accuser and her companion told conflicting and changing stories. It turned out the that accuser had cried rape before and then withdrawn her claims. The photo array used to identify the accused was fatally tainted--all the photos were of lacrosse players, including no non-suspects as is normally and properly done. Some of the players had ironclad alibis, casting doubt upon the chronology.

In recent days, it has come out that the DNA testing performed by a private laboratory revealed that the accuser had had sexual relations with a number of men in the days before the alleged rape, but NONE of them was a lacrosse player. Although it's theoretically possible that the accuser was busy with others, unprotected, before the party, while the rapists all wore condoms, the crucial fact is that the DA and the lab knew about these results for months, and the DA failed to disclose them to the defense, as constitutional criminal law requires.

As a result of this embarrassment and the severe doubts this evidence evoked, Nifong recently dropped the rape charges, while maintaining others not involving penetration. The credibility of the accuser, who didn't mention her numerous men friends, can't possibly stand up under minimally competent cross-examination.

Now it's DA Nifong who is in the sights. The State Bar has issued formal charges that Nifong breached ethics in his loud and false statements to the press early on, and may amend those charges to include other misconduct, including concealing evidence and misleading the court. The North Carolina association of DA's, a type of group that's normally rabidly pro-conviction and pro-punishment, called upon Nifong to withdraw from the case. Among other things, the pending misconduct charges against Nifong create a conflict with his duty to exercise discretion in whom he charges and prosecutes, and how he prosecutes them.

These young men have been grievously abused, and their troubles aren't over. If they hadn't had parents with money to pay lawyers, they might be headed for prison for a crime they did not commit.

Duke has suffered. The reflexive, ideological stupidity of its faculty, and the knee-jerk abandonment of its students by President Brodhead will undoubtedly tarnish its reputation and scare away applicants, even though most faculties and our large, prestigious institutions might very well behave similarly. If I were a Trustee, I'd want to fire the man immediately.

These events also demonstrate the racial inversion that has taken place in this country. If events occur that seem to support the concept that white racism and anti-black violence are commonplace, the press jumps on them. The Jesse Jacksons and Al Sharptons ride into town and the marches follow.

In reality, black-on-white violence is far more common nowadays than the reverse, and the same is true of rape. Black racism toward whites today seems more marked than white racism toward blacks, the public expression of which is not only taboo, but in many places, such as universities, leads to an orgy of self-flagellation. Discrimination against whites in favor of blacks, misnamed "affirmative action" is seen as a sacred duty in some quarters.

One hopes that we will learn something from these events. I doubt we will.

For more information about the Durham events, see LaShawn Barber's blog; this one, especially dedicated to the case; the inimitable Captain Ed; and Mary Katherine Ham's video tour of all the places in Durham where things did not happen.