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.

A Suspect Prosecution

(Originally posted June 24, 2006)

Steve Yagman is a flamboyant Venice, California lawyer who handles police abuse cases and gets into scrapes with federal judges. He got into long disciplinary fights over his accusations against Judges Manuel Real and William Keller. He's had scrapes with the Bar over his fees.

He's also won some major victories.

Now, the feds are prosecuting him for alleged income tax and bankruptcy shenanigans.

I don't know the facts, but I smell a rat. Yagman recently won a big case against the IRS. Now they're trying to send him to prison.

Of course, being a defense or police abuse lawyer, even a crusading one, should not earn one a "Get Out of Jail Free" card.

But is this a vengeful or selective prosecution? If so, it wouldn't be the first. i don't know the facts, but--inquiring minds want to know.

What Roe Is All About II (Incorporation and Privacy)

This piece is reproduced from my personal blog. It was written in October 2005, and is second in a series, still incomplete, on Roe vs. Wade, looked at from a legal, not a political or moral perspective. My earlier discussion is here.

I

Remember that we ended the Introduction with a discussion of the Fourteenth Amendment's ban on the states acting against the newly-minted ex-slave citizens, or any citizens by Denying them the privileges and immunities of citizens Depriving them of life liberty or property without due process of law; or Denying them the equal protection of the laws. All of this sounded good, and to the Radical Republicans who enacted the Fourteenth Amendment, had a clear intent of protecting the ex-slaves.

Within a few years, however, interest in affording much protection to the ex-slaves waned, and with the compromise arising out of the disputed 1876 election, Rutherford Hayes was allowed to carry Florida in exchange for a promise to end Reconstruction and give the white South a free hand with respect to the Negroes, who were relegated once again to a condition of subordination.

By 1896, the Supreme Court held in Plessy v. Ferguson that a state could enforce racial segregation in railroad cars, provided the facilities provided to each race were equal. In other areas, however, the Supreme Court found that certain rights of individuals and of corporations (fictitious legal "persons") under the federal constitution applied, under the Fourteenth Amendment, also to the states. The key case for this principle is Lochner v. New York. Lochner held unconstitutional a law of New York that forbade employers from making bakers work more than 60 hours in a week. The court held that a "freedom of contract" that the Fourteenth Amendment imposed upon the states trumped the states' inherent police power, and made it unconstitutional for a state to regulate the hours of work of bakers, even though restrictions on the hours of work of miners and others by other states had been upheld on health and safety grounds. The Supreme Court held that no such restriction on the work of bakers was justified by such health considerations.

This doctrine in Lochner has been labeled "substantive due process." In other words, it is not a case of a right being taken away without proper notice and procedures ("procedural due process"), but the content of the law itself the Court found offensive to the Constitution. In the economic sphere, substantive due process survived little more than 30 years. It was tossed out during the New Deal, when government regulation of the economy, in the face of the Great Depression, once again became fashionable. But Lochner is most emphatically not dead in non-economic spheres. Increasingly, the court has held, whether or not the focus is the Fourteenth Amendment's original one of race that the rights enumerated in the first ten amendments, much, if not all, of the "Bill of Rights" now applies to the states because the Fourteenth Amendment makes it so. Reams of paper have been covered with arguments as to which aspects of the Bill of Rights are "incorporated" or applied to the states under the Fourteenth Amendment.

II.

The other abstract concept needed to understand the legal arguments about Roe is the "right of privacy." In American jurisprudence, the concept of a "right of privacy" is generally traced back to an article by later Supreme Court Justice Brandeis and his law partner Samuel Warren in the Harvard Law Review. Brandeis and Warren wrote not about highfalutin' constitutional law, but about the law of torts, a tort being a civil wrong not arising out of a contract, for which suit may be brought. Brandeis and Warren argue that there is ample justification for the common law, as it does from time to time, to create a new tort, whereby damages and more rarely, an injunction, could be obtained for unauthorized publication of private facts, even if truthful. The article does not address the question of whether the constitution itself contains (or does not contain) an implied right of privacy. Brandeis and Warren's "privacy" deals more with protection against the likes of paparazzi than against state legislation:

Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

As we shall see, it is this concept of privacy, brought into the constitutional law and imposed on the states through the Fourteenth Amendment "incorporation" doctrine, that provided the initial rationale for Roe. Whether "privacy" can be found in the Bill of Rights, whether "incorporation" applies a right of privacy to the states, and whether abortion is within the scope of any such right of privacy, are all questions which must wait for further posts.

David Irving Is Sentenced

(First posted February 20, 2006)

I know very little about David Irving, except that he is a historian who downplayed some aspects of the Nazi mass murder of European Jews, and lost a libel trial in England to Deborah Lipstadt.

Now Mr. Irving has been convicted and sentenced to three years' imprisonment in Austria under a law that makes denial of Nazi villainy a criminal offense, for remarks he made some time ago. This conviction illustrates some differences between the European and US conceptions of freedom of speech, as I discussed in this post. In Europe and Canada, deviation from conventional wisdom on the Nazi era can be a crime. In the United States, freedom of speech extends to statements that others consider outrageous and offensive.

The Americans have the better of this argument. We have a tradition of rough-and-tumble, even scurrilous debate over politics and other matters, and are none the worse for it. In part this reflects a belief that the truth will emerge from free debate, and in part from an unwillingness to trust government to decide what speech is too dangerous or too offensive to be heard. Therefore, even though Holocaust denial is sometime associated with very unpleasant anti-Jewish sentiment, the American view of free speech leads to the conclusion that it is wrong (not to say hypocritical in the land of Kurt Waldheim) to jail Mr. Irving for his deviant views on Nazi genocide. Although Mr. Irving's views may not be worthy of defense, his right to express them is. Therefore, like him or not, like it or not, I am forced to say "Free David Irving."

The Culture Wars Go to Court (Yet Again)--The University of California vs. Christian Schools

(Originally published February 15, 2006)

An important First Amendment dispute is winding its way through the courts in Riverside County. In California, the University of California (Berkeley, UCLA, etc.) sets admissions standards. If it refuses to approve certain courses, or requires others, there is a ripple effect throughout the high schools, public and private, whose more qualified graduates often apply to UC.

Although UC has approved high school courses on theme such as feminist approaches to literature, it has recently refused to approve courses offered by Christian schools, such as Christian approaches to literature. The dispute also extends to science classes--physics and biology. The Calvary Christian schools contend that UC is disapproving the courses because of the points of view they espouse, not because the courses are of inferior quality or don’t cover important and challenging literature. UC says it's enforcing scientific and intellectual standards, not discriminating against faith-based institutions.

The U.S. and California constitutions forbid such discrimination, but don't bar a state university from setting academic standards. Because UC is a state institution, the First Amendment would prevent it from discriminating against a course because its viewpoint is influenced by religion (or anti-religion, for that matter).

If the standards of the course are too lax, its a different story. There could be a different story in the case of science classes. A biology class that didn't cover evolution, or a physics course that didn't address the Big Bang would be in violation of generally accepted scientific standards. A biology class that presented the theory of evolution thoroughly, but criticized evolutionary theory on empirical or religious grounds would be a closer question. Is it enough to explain the theory and express skepticism about it, or must it be taught as truth? These questions aren't easy. The outcome may well turn on the specifics of the courses, and the University's record on similar courses whose orientation is less likely to offend the liberal mind. Judges hate to second guess academic decisions, if only because they want to discourage lawsuits on these matters, but when a constitutional issue is joined, the courts have no choice but to decide it. Watch this space.

Hat tip: Al Mohler, who cites an article by Charles Haynes of the First Amendment Center

What Roe Is All About--Introduction

(First posted February 14, 2006)

Last October, on my personal blog, when the Supreme Court appointments began to be an issue, I began a series, still unfinished, about the legal issues in the endless battle about Roe v. Wade, the case in which the Supreme Court found that the Constitution forbids the states from making it a crime to interrupt a pregnancy, especially in its early stages.

I thought to focus on the constitutional issues, as opposed to the moral and political aspects of the issue. I’ve slightly revised this post for my law blog, and I’ll be posting the remaining sections from time to time. Nevertheless, I do think it’s important to begin by saying that if I were a legislator, I'd vote in agreement with what most Americans believe. It would be a mistake for the government to forbid all abortions, when there is no consensus among the people. However, abortion should be regulated, especially in the later stages of pregnancy when a premature birth might result in a baby capable of survival.

I don't think abortion in the early stages of pregnancy is the same as murder. That's a theological or philosophical debate to which I don't have much to contribute, but before I begin discussing the Constitutional aspects of the issue, it's best to lay at least that much on the table.

This approach--allowing abortion but restricting it-- would probably be the law in most states if the Supreme Court had never been involved in the issue, and the noise of the controversy would be far less loud. Why? Because the political process would have taken effect, and changing public attitudes would be reflected in law. No doubt Utah and a few Bible Belt states would outlaw abortion entirely, and others would restrict it. Others, like California, have put a "right of privacy" into their constitutions that was intended, among other things, to limit the state's ability to interfere with abortion. As Justice Ginsburg long ago observed, the effect of the Roe decision was to cut short the political conflict.

The debate has now metastasized into a debate not only about constitutional law, but about the role of the Supreme Court and how justices should be selected. Our Constitution gives the federal government limited powers, and the Bill of Rights, the first ten amendments to the Constitution, places specific restrictions on the feds' ability to do things like promulgate a state religion and tell newspapers what to print. Originally, these restrictions did not limit the powers of state governments, which were sovereign. After the Civil War, a Congress purged of rebels passed three constitutional amendments. One, the Fourteenth, was designed to insure that freed slaves became full citizens, and thus provided that persons born or naturalized in this country were citizens of the states where they reside. It also did other post-war things, such as invalidate the Confederate debt, that are rarely spoken of today.

The language of the Fourteenth Amendment relevant to our discussion is this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For the first time, the Constitution limited what the states could do. The original idea was to protect the freed slaves. As we shall see, that ideas has stretched quite a bit beyond that intention since. What were the "privileges and immunities" so protected, what were the protected "life, liberty, [and] property" and what was "equal protection of the laws"? The language is general, and when language is general, lawyers prance, preen and saunter. Where this legal horsing around has led our constitutional law, is something I’ll take up in a later post in this series.

UPDATE: My views on the moral questions involved have evolved somewhat. I am becoming persuaded that the moral criticism of abortion holds weight, as do the "slippery slope" and demographic concerns many express about a socially permissive view. This doesn't necessarily change either the constitutional analysis or the political question.

The Angels Jury Decides

(Originally published February 12, 2006)


Last week an Orange County jury slapped down the City of Anaheim, and its lawyer, Andy Guilford, who is soon to be a federal judge, if the Senate cooperates. The jury found that the Angels’ new owner, Arte Moreno, did not breach a contract that the former owners, the Disney Company, made with the City of Anaheim, by changing the name of the team from the “Anaheim Angels” to the “Los Angeles Angels of Anaheim.”

The jury deliberated for only four hours, a relatively short time for a major case. The new name of the team is silly. Although they are in the same TV market, Orange County does not consider itself a suburb of Los Angeles, and Los Angeles tends to think of events occurring here as “behind the Orange Curtain.” The judge found that contract was ambiguous on the point, requiring merely that the name “Anaheim” appear in the title of the team.

Was Moreno within his rights in trying to link the team to a wider area the and a larger demographic by making the rather awkward name change. When a written contract is unclear, “parol evidence” about what the parties said and intended, if it doesn’t contradict the written part of the contract, can be received in a trial so the meaning of the ambiguous term can be discovered. “Parol” is Law French, deriving from the French term for “word,” going back to the Norman French conquest of England in 1006. Perhaps the jury decided that if the parties had meant that only the name “Anaheim” could appear in the team name, that’s what they would have written down.

There’s a lot more that can be said about this case, but for now I’ll just make two points:

• It’s important that contracts be clear. People write their contracts so they will know what to expect. If a contract is sloppy or unclear, the parties are giving an unknown group of 12 people the right to decide what their business deal meant. Skimping at the contract writing stage can turn out to be very expensive.


• Attorney’s fee clauses in contracts increase the risks of litigation. Under the normal “American Rule,” the party that wins a trial and the party that loses each pay their own lawyers. Parties to a contract can repeal the “American Rule” and agree to make the loser pay not only its own attorney fees, but the winner’s. Anaheim may get hit for $ 6 million!

UPDATE: Now the OC Register’s Frank Mickadeit says there isn’t an attorney’s fee clause in the agreement. Mickadeit was confident the city would win, so I guess his face is doubly red. He’s still my favorite columnist in the paper. The result also calls into question the practice of cities spending cash and devoting land to attract or keep professional sports teams. Why the taxpayers should subsidize a profit-making enterprise like a sports team is beyond me, but apparently there’s a myth that the team will bring in swells who will spend money, and make the city famous. It never paid off and it never will. Fill the potholes, arrest the crooks, fix the schools, and lower taxes. Boring, but the true business of cities, and better calculated to bring in business than subsidizing millionaires who think it’s fun to run a team. "