THIS case, the Duke Lacrosse Phony Rape Case, is a poor case to use as typical, unless one is arguing that the problem with false prosecution is that it is frequently more than just a corrupt DA, but a community with important persons with agendas which require false prosecution. Treating it as if the only guilty party is Mike Nifong, and maybe Dr. Meehan and one or two policemen is precisely what is wrong here. The best elements of Durham were willing to send three young men to prison for 30 years because it satisfied their meta narrative of evil, loutish, rich while male athletes abusing women and minorities. What actually was proved was none of the faculty’s worst fears – the charges were a crock, and apparently some of the police knew it from the start. But the cheer leading from the faculty gave Nifong all the cover he needed to railroad the players so he could look good to the voters of Durham.

As to the nature of how corrupt the justice system is, I would like something more than some anecdotal evidence. Some data or empirical evidence that can be independently verified. I tend to be rather skeptical of claims that there is corruption rampant, because there is not much hard evidence to show it. Yes, SOME members of the legal profession are ethically wanting, and some (a few) are disbarred. Likewise, a few policemen, or the occasional other public official is found ethically challenged, and is fired for cause. But is it really as rampant as Mr. Schraub suggests? I doubt it. For the same reason I doubt the most extravagant claims of imminent danger from Al Qaida or other terrorists. Just as the right wing of the Republican Party makes apocalyptic claims of looming disaster if the Homeland Security folks don’t further curtail our basic liberties; the left wing of the Democratic party makes doomsday claims about the evils stalking the poor, women, or minorities. Both groups cheerfully curtail the civil liberties of the majority for reasons which seem reasonable to THEM, but which are often found objectionable by substantial numbers of citizens. Is there a real danger of massive prosecutorial misconduct? Possibly, but probably no more so than there is imminent threat of a terrorist attack. and unless you have something better than “Because David Schraub Says So,” I remain unconvinced that prosecutors are as much of a danger to civil liberties as well intentioned people who are willing to trample the civil rights of people they dislike in their rush to defend groups who they perceive to be worthy of special consideration.

If there is a lesson in this whole sorry business, it is that humility, and willingness to recognize that you may be wrong about matters of guilt or innocence, and that one should never rush to judgment are much more beneficial to a truly inclusive society than group think and stereotypes.

As a reality, man is a flawed being, and no system, be it criminal justice, education, or government can attain perfection. We are all flawed, and we all do make errors. So to what degree are we willing to accept that fallible human nature will give us wrong verdicts, and how do we correct it? Post 16 is correct, we cannot absolutely eliminate all false convictions unless we simply eliminate prosecutions. We CAN, however, work to make these as rare as possible. But totally, absolutely never? No, not ever. If that is a reason to eliminate the death penalty, I can accept that, though I don’t agree with Mr. Satterfield. I think there are cases where it is appropriate and can be as fairly applied as any human decision can be. That’s a discussion for another place.

However, let’s go back to post 2, because this brings us to the elephant (or in Nifong’s case, the donkey) in the room. Michael Nifong did not act alone. Rogue prosecutor is technically correct, but not a complete explanation for what went on in Durham. The role of the community has been left out – and that, I think, is an important omission. I doubt that a Svengali-like Nifong could have gone very far with his prosecution of the Duke 3 without a great deal of underlying support form the powerful people in the communities. That includes the administration and powerful faculty at Duke University; the local and state political leaders, and powerful political interest groups, in this case women and African American groups, and the main stream media. All of these groups had members who were willing to push their agenda to the exclusion of independently verifiable data. In that respect, they are probably not that much different from communities a century or 150 years ago, when the interest groups wielding political power were of different ethnic and gender composition than those in 21st century Durham. People and human nature have not changed much.

Michael Nifong has been disbarred, and he may even do time in prison after the process is over. But what about the people who made it possible for his hoax (yes, hoax – remember the “You know we’re f**ked” moment?) to steam along at full throttle? Where were all the progressives, the people who are supposed to be such staunch preventers of miscarriages of justice?

Unfortunately, these groups seem to have become tongue-tied, like the Innocence Project, which didn’t want to get involved; or were enthusiastically cheering for Nifong, like the North Carolina chapter of the NAACP, or the ethnic and gender studies faculty at Duke. And even when evidence began to accumulate within several months to suggest that this case might not be what was claimed, it was too late – many people and groups had publicly declared themselves in the DA’s corner. They could not admit to having been wrong, because they would lose face.

The local political powers are now trying to shift all the blame to Nifong – he’s a convenient fall guy. But the North Carolina NAACP still had their web site up accusing the Duke 3 of attacking the false accuser as recently as last month. Months after the North Carolina Attorney General stated categorically that the three men were not merely not guilty, but INNOCENT. This week a member of the national NAACP admitted on television that the Duke 3 were innocent, and perhaps due an apology from some members of the group. Nothing like being a year late and a dollar short.

Duke University paid off the coach and three students wrongly accused. No apology, but no doubt the settlement is sufficient cash to make them willing to go away. No public admission of unfair treatment, or disciplinary action against any of the faculty who publicly accused the lacrosse team of being hooligans and rapists, either.

Most of these people in the North Carolina NAACP or Duke’s administration and faculty are probably basically decent people, or at least they would see themselves as decent, kind, caring, community oriented people. To a degree they are correct. But, like the members of many communities who became lynch mobs a century ago, they didn’t follow the full process of the law. They systematically left out the presumption of innocence, failed to carefully follow the evidence and look for all the possible explanations that might be exculpatory. Because they knew, in their heart of hearts that because the accused were members of a certain racial, gender, and class group, the were probably guilty of something, and had it coming to ‘em. That failing is something we should all be very much aware of, and understand the full enormity of it. The people in Durham who cheered the anti-lacrosse team protesters, the Duke administration and faculty who demanded the prosecution of their own students before all the evidence was known, the NC NAACP were all helping Michael Nifong promote his case. The case he hoped would get him re-elected as a kind, caring, racially, gendered, and class-conscious member of the Durham community.

The media, which has a long and sordid history of sensationalism because it boosts sales, took the case and ran with it. Good investigative reporting wasn’t needed, the whole community was sure these three guys were guilty. Get the money shot and go! And, like everyone else on the wrong side of this case, very few have actually apologized or acknowledged that they were wrong.

Do some prosecutors use illegal and unethical tactics? Certainly. But they are enabled by the people who support them in multiple ways. I doubt that trying to change this legislatively will succeed. On the other hand, if more people take the careful, deliberate approach of respecting the concept that the accused is innocent until proven guilty, and that the evidence – all the evidence – must be examined before rendering a verdict, we may be able to reduce the number of wrongful prosecutions. The challenge is to remember that the point of due process is that it most protect those we like least, not those we love the most, if we want to to protect those we love and cherish.

If you look at Baltimore, MD today, they have adopted a policy of non-enforcement. Of course a family of seven was murdered by drug dealers because they dealers stand little chance of arrest or conviction.

What are people willing to give up to ensure that not one innocent person is convicted? Claiming that protecting the innocent is great but what is the total price involved?

Additionally there many in the field that are extremely competitive, view themselves as defenders of society, and/or under a lot of pressure from their superiors to get results. Combine any two of the three and you have a cocktail for well intentioned prosecutorial misconduct.

Then there are those seeking higher office….

JOE ARPAIO is now a hero. Abusing people in county lockup for not making bond or paying a fine…

You must think you’re pretty slick.

But what about Cheryl Lynn Noel?
Or Alberta Spruill?
Or Jose Colon?
Or Tony Martinez?
Or John Adams?
Or Lynette Gayle Jackson?
Or Ismael Mena?
Or http://www.theagitator.com/archives/026661.php” rel=”nofollow”>Stacy Renae Walker?

Like the Duke Lacrosse players, these people were all innocent people. But unlike the Duke Lacrosse player, these people were killed for crimes they did not commit. No attorney. No judge. No jury.

These are the consequences of our government’s fanatical War on Drugs. Suspects are deemed guilty until proven innocent, and guilt is based upon the word of confidential informants (i.e. drug addicts who receive money and/or reduced sentences from the government in exchange for making accusations against people).

Civil liberties be damned.

Tulia, TX: Drug War As Race War

…
The ACLU noted that “‘No More Tulias: The Law Enforcement Evidentiary Standards Improvement Act of 2005,’ is being introduced by Rep. Shelia Jackson-Lee (D-TX) and cosponsored by John Conyers (D-MI), Charles Rangel (D-NY), Donald Payne (D-NJ), and Ed Towns (D-NY). The bill is named after the drug task force scandal in Tulia, Tex in 1999 during which 15 percent of the town’s African American population was arrested, prosecuted and sentenced to decades in prison based on the uncorroborated testimony of a federally funded undercover officer with a record of racial impropriety.

Here in Michigan they now have a crazy law – just possessing a few components in your car for meth manufacturing is a crime. Not the chemical components, but a few cooking components will land you in jail. It’s like Tommy Chong going to jail for selling bongs.(?)

What makes me even angrier than the fact that these kind of raids happens is those who—even after learning about these raids—continued to support the federal government’s War on Drugs. Among the 2008 presidential candidates from the two major parties, only Ron Paul, Mike Gravel, and Dennis Kucinich have spoken out against the War on Drugs. Rudy Giuliani and Joe Biden, on the other hand, are staunch supporters of the War on Drugs—a fact that few in the media are willing to call them out on.

Not so for many of the innocent victim’s of our government’s fanatical War on Drugs. Radley Balko points out that evidence that would have exonerated some of these people has purposefully been withheld in order to protect confidential drug informants—many of whom have rather shady pasts of their own:

Last week, a federal judge excoriated the FBI for not only hiding exculpatory evidence that would have exonerated four innocent men who served more than thirty years in prison, but for rewarding those who did the hiding and covering up with bonuses and promotions. For this crime against American citizens, American taxpayers will now shell out more than $100 million. Thus far, none of the government agents actually responsible for this crime have been held accountable. Only rewarded.

Well, we’re just getting started. On July 19th, the House Judiciary Committee held hearings on the use and abuse of confidential drug informants. The testimony Assistant Director of the FBI Directorate of Intelligence Wayne M. Murphy gave at that hearing is truly astonishing.

The transcript below was provided by the ACLU. It comes from the Q &A session after the witnesses provided their initial testimony. Murphy’s being questioned by Rep. Dan Lundgren (R-Calif.) and Rep. William Delahunt (D-Mass.). The context: Lundgren and Delahunt have cited incidents in the past in which the FBI has covered up evidence that its confidential drug informants have committed violent crimes (including murder) in order to protect their identities, so that they could continue providing the bureau with information. They’ve cited other incidents, including the case above, in which the FBI has hidden exculpatory evidence, and allowed innocent people to go to prison. Lundgren and Delahunt want Murphy to assure them that the FBI has instituted policies to ensure that these sorts of incidents won’t happen again–that murderers won’t be protected and innocent people sent to prison in order to preserve drug investigations.

The War on Drugs is rife with tales of civil liberty abuses. Why the American people have allowed this kind of power to become consolidated within the federal government, I’ll never know.

Right. And there may be tens of thousands of people in US jails innocently in jail simply because they couldn’t afford a law ]]> http://themoderatevoice.com/14345/prosecutorial-misconduct/comment-page-1/#comment-93366 Jim Satterfield Thu, 02 Aug 2007 21:52:51 +0000 http://themoderatevoice.com/society/law-legal-matters/14345/prosecutorial-misconduct/#comment-93366 Incidents like the Duke lacrosse players and the travesties uncovered by the Innocence Project are why I've turned completely against the death penalty. While I know that there are incidents that have no question (Gacy, Dahmer, etc.) I don't think we can design a system that would filter out only the cases like them. Incidents like the Duke lacrosse players and the travesties uncovered by the Innocence Project are why I’ve turned completely against the death penalty. While I know that there are incidents that have no question (Gacy, Dahmer, etc.) I don’t think we can design a system that would filter out only the cases like them.

Although the rot in the American criminal-justice system runs deep and all the way from the local magistrate/justice of the peace level to the very top (!!!), it’s kind of like being in a bad car accident. You don’t realize how important it is to have a first-rate emergency room in your community until you need to have your body put back together.

The Duke case was differently only in that the defendants had the money to fight back.

I see no hope of short-term reform because the rot in the criminal-justice system mirrors the rot in American society in general: Widening class lines, blasé attitudes about lying, a severe shortage of lawyers willing to work as public defenders or do pro bono work . . . I could go on and on.

It will be interesting to see if any of the presidential candidates address this. Cripes! I can’t believe I said that.

Sigh.