Thursday, April 12, 2007

Did AG Cooper Cross The Same Ethical Line That Nifong Is Accused of Crossing?

After watching North Carolina Attorney General Roy Cooper make his statement about the results of the review of the Duke University lacrosse rape case, I'm reminded of Mike Nifong's public statement which landed him in ethical hot water and which spurred outrage among the defense attorneys in this case and among those who had already labeled the case a hoax.

Only Cooper makes his harsh and prejudicial characterization less directly and makes it against the alleged victim in the case. Officially the case was dropped because of insufficient evidence to prove the charges beyond a reasonable doubt, but Cooper's statement goes beyond what can or can't be proven against the defendants in this case.

The details of the statements are far different, but the motives behind the 2 very different statements are the same. Response to intense pressure from the public about this case.

[...] I promised a fresh and thorough review of the facts and a decision on the best way to proceed. I also said that we would have our eyes wide open to the evidence, but that we would have blinders on for all other distractions. [...] The result of our review and investigation shows clearly that there is insufficient evidence to proceed on any of the charges.

That part doesn't step over the line but the AG doesn't stop with the facts which led to all charges being dropped and the fact that the case against any and all lacrosse players is over. The beliefs about Nifong having "a tragic rush to accuse" edges toward personal opinion rather than verifiable fact, but Nifong's actions were part of his job.

Next week, we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

This conclusion steps over the very same line as Nifong is accused of stepping over. Likely for the same reason. Cooper doesn't call the alleged victim a lying 'ho, but many people are using these words as proof that she is just that. Just like Nifong, Cooper is trying to appease the public that he is doing his job and has come to the correct conclusion about this case.

The public wants absolute certainty not reasonable cause or reasonable doubt and they don't want to wait for a trial to get what they want. They want to know who the villians are ASAP. Nifong offered it last year and Cooper is offering it this year.

While acknowledging that there are inconsistencies in real rape cases, the inconsistencies in this case are turned into more than reasonable doubt, they are turned into the smoking gun. Not being able to prove that something happened isn't the same thing as proving that it didn't happen. Cooper should have heeded his own words:

There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly. Regardless of the reasons this case was pushed forward, the result was wrong.

If Nifong was wrong, so too was Cooper. Despite his call for changes to stop this from happening again (the PR nightmare since the system actually worked in the defendants' favor) Cooper is calling for immediate changes to the system.

This feels like grandstanding but of an even greater magnitude than Nifong is accused of. If a case becomes hotly debated and there is a push to stop the prosecution before a trial begins, Cooper wants to make that process easier.

I view that proposal as dangerous to justice and dangerous to the many less than 100% sympathetic crime victims. If a prosecutor pursues an unpopular case or one that makes the state look bad, that prosecutor has to worry that doing so will result in having the case taken away and being given the label of rogue prosecutor.

Once a case is taken away, it is likely dead in the water no matter what the evidence proves.

If there is to be a process to take cases away from aggressive prosecutors then that process must allow for cases to be taken away from passive prosecutors who refuse to pursue criminal charges. Mishandling cases doesn't only work one way.

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posted by Marcella Chester @ 9:55 AM   8 comments links to this post


At April 12, 2007 10:13 AM, Anonymous joe said...

At the point the AG took over what choices did he have? If he said only that there was insufficient evidence to obtain a conviction it raises the real doubt that the defendants committed the crime they’re accused of and simply covered it up well. If faced with that situation what options does that leave the defendants to clear their name? Sue Nifong? Sue the accuser? Sue Durham to force the DA to charge the complaining witness for filing a false police report? Let it go and walk around with people whispering “you did it and got away with it”?

The AG said that there was no credible evidence that an assault took place in the house that night. That ‘clears’ the lacross team of rape, kidnapping and sexual assault. (They’re still racist assholes but that’s not a crime.) I’m going to assume good faith at this point and that he said because he believes it. He promised to release a report on his investigation. In a week we’ll know WHY he believes and can try to judge for ourselves.

I don’t know if that statement is ethical or not. Since there isn’t an open case at this point I’d imagine that the AG can’t prejudice a jury pool. But IANAL. It might be a signal that they don’t plan to pursue a case against the complaining witness. I hope so. I’d hate to see her charged.

I think laws that limit a prosecutor’s power are a good thing at this point. Prosecutors have too much power in our current system. I don’t think such a law will have much impact on rape and rape convictions. I think that particular failure of the system has more to do with the people in it than it does with rules and procedures.

At April 12, 2007 12:22 PM, Blogger Marcella Chester said...

Joe, the AG has the option of sticking to what is known and not stretching into beliefs which cannot be proven beyond a reasonable doubt.

Yes, this is rough on alleged rapists, but stretching beyond what can be proven is rough on everyone and endangers far more than 3 defendants or an entire sports team.

You seem to be of the belief that the only reputations which matter are the reputations of those accused of crimes and not those who are painted as false accusers. I disagree.

At April 12, 2007 1:07 PM, Blogger sailorman said...

I'm not a fan of the proposal at the outset. The devil's in the details, though--even if it passes, it might not be as bad as I fear.

Think of it as a "right to protest being prosecuted."

If this right is to be meaningful, it has to be reasonably easy to access.

We sure as hell can't (and shouldn't) grant the right only to accused RAPISTS. That makes no sense at all. they're just criminal defendants like everyone else. So, what then--we're going to let every accused criminal appeal to the supreme court of the state before they can be charged? Yeah, right. I'm sure the supremes will love that one.

The only way this is going to be functional is if there's some sort of extremely limited right to appeal to the court. That means that even if it's a bad idea, it's likely to be a bad thing with a limited effect. Which still sucks, but sucks less.

At April 12, 2007 2:54 PM, Anonymous joe said...

Joe, the AG has the option of sticking to what is known and not stretching into beliefs which cannot be proven beyond a reasonable doubt.

My point was that the AG’s statement would be parsed and conclusions drawn based on what was and was not said. It obviously hasn’t been proven in a court of law. It’s difficult to prove a negative, and they didn’t actually call the accuser a liar. They came very close. But what they said is that they found no credible evidence to back up her claim, and that they did not find her account believable. We’ll find out next week if we agree with his reasoning.

Yes, this is rough on alleged rapists, but stretching beyond what can be proven is rough on everyone and endangers far more than 3 defendants or an entire sports team.

True. I agree. One question, when you say can be proved do you mean ‘can be prove at all’ or ‘hasn’t been proven yet?’

You seem to be of the belief that the only reputations which matter are the reputations of those accused of crimes and not those who are painted as false accusers. I disagree.

It’s not that I think her reputation doesn’t matter. It does and I think she’s been hit pretty hard in the press. Given the particulars of the case I’m not pleased the media released her name. I think everyone’s reputation matters. It’s just that in this situation there was a trade off that had to be made. The AG could keep the statement as small as possible to preserve the reputation of the accuser or broaden it to somewhat redeem the reputation of the accused. (Somewhat because they’re still assholes) I assume that the AG was acting in good faith when he made his statement. In this situation I think the reputation of the accused matters more than the reputation of the accuser. I don’t think that’s generally the case.

At April 12, 2007 2:56 PM, Anonymous joe said...

This is wordy and I don’t know if you want to discuss it so I’m posting it separately.

I think you’re applying this a lot more broadly than I am. I understand that some people will try to use this case to portray all rape victims as liars. I think those people are ignorant fools at best and, evil fools most of the time. I believe that in this particular case the accuser wasn’t truthful. (I think in most cases they are and I’ll happily revise my opinion in this case if there’s any good reason to do so).

But let’s assume that the defense has been basically correct in what they’ve said and list what it took to get here. (This has not all be proven in court, it’s just for arguments sake)

1. The complaining witness had to misstate events.
2. The complaining witness had to undergo a rape exam. (not fun)
3. The SANE nurse had to misdiagnose the physical evidence of the exam.
4. The police had to accept a version of events that wasn’t backed up by any physical evidence. (There was a lot more than just DNA involved.)
5. The media and community had to become so interested in this case that it became a national news story.
6. The prosecutor had to ignore exculpatory evidence.
7. The prosecutor had to accept a version of events that wasn’t backed up by any physical evidence. (Again this wasn’t just DNA)
8. The prosecutor had to drastically revise the theory of the crime several times to match new evidence.
9. The prosecutor had to withhold evidence, and than continue the charges when this was discovered. (this one was discovered under oath fwiw)
10. The prosecutor had to choose to do this people with the means for a large legal defense. (as opposed to a poor person)

My point is that this case is odd. It’s not a typical rape case in almost every way. afaik The main implication of this case is that sometimes really odd things happen. I think that the case is also a good anecdote to argue that prosecutors have too much power. Not everyone that’s accused of a crime that evokes public outrage can afford a 3 million dollar legal bill. I also don’t think this case will change any minds. People that thought it was a lie from day one wouldn’t have changed their minds with video evidence and confessions. I’m sure some people still think that these three men are guilty of the original charges and just got away with it.

Basically I think the fact that Rush was more correct than Marcotte in this case doesn’t mean that’s true in general.

At April 12, 2007 5:22 PM, Blogger Marcella Chester said...

Joe, of course odd things happen but in this case the system clearly wasn't perfect, but most of the prosecutor mistakes -- such as the line-up -- in the end benefited the defendants.

That reality and the outcome of this criminal investigation is far different from the story woven by the hoax fanatics who initially presented a pre-meditated plot by the 2 dancers to frame the lacrosse players.

The hoax fanatics wanted to try this case publicly with the alleged victim as their perpetrator of choice -- and without giving her any of the respect and legal rights they demanded for the defendants. Largely they have succeeded in making people believe their accusations against this woman which the AG knew existed when he made the portion of his statement which supported their accusations.

At April 12, 2007 7:08 PM, Anonymous Maria said...

Joe is right about one thing: if the accused hadn't been some rich kids with millions of family dollars for lawyers and PR, there wouldn't have been any fancy defense to drag the victim's credibility before the press, the hoax fanatics would have never come out of the woodwork, and her testimony with the lineup would have been enough to send them away for a long, long time.

At April 12, 2007 9:55 PM, Blogger Marcella Chester said...

I wrote: most of the prosecutor mistakes -- such as the line-up -- in the end benefited the defendants

This statement was challenged and I will assume misunderstood rather than intentionally twisted. We will never know if the same men would have been identified in a line up which included non-lacrosse players. The DA's mistake of only including lacrosse players definitely benefited the defendants' legal case as it was one of the key elements behind the dismissal of all charges.

The actions by Nifong which led to the ethics charges against him and which led him to turn the case over to the AG also ultimately benefited the defendants.

Without those prosecutor mistakes this case may have gone to trial and who knows what the outcome would have been.


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