Friday, June 22, 2007

Lessons From Duke Case

The Law watch blog claims that the lesson that should be learned from the Duke case is "... a prime example of why American justice insists that a person charged with a crime is considered innocent until proven guilty."

I disagree. In fact this assumption about what the Duke case is an example of can create dangerous changes in the criminal justice system. This case, like the OJ Simpson double murder trial, shows that money matters and money can get dramatic results.

If we isolate this case from all other high profile and high money cases like OJ's, disempowering prosecutors can seem like it will solve all the problems in the criminal justice system, but when we broaden the lens we can see this isn't true.

Those who talk about "innocent until proven guilty" acknowledge that concern for the defendant shouldn't end because the evidence against the defendant is overwhelming or because the defendant is repugnant. So why do most of these people expect that concern for alleged rape victims should end because the evidence for the defendant's innocence is overwhelming or the alleged victim is repugnant?

Why aren't those who scream, "Throw her to the wolves!" viewed as endangering our legal system and due process rights? And why are those who refuse to abandon the rights of alleged victims called man haters when those who refuse to abandon the rights of convicted rapists say they don't deserve the label of women haters or rape lovers?

They attack what they call "the unassailable victim" while standing guard over "the unassailable nice guy."

The guilty are supposed to be protected from cruel and unusual punishment, yet alleged victims who lose public support and are labeled as an unreliable witness routinely face cruel and unusual punishment from people who claim to uphold the rights of all men.

Many of those who kept saying, "innocent until proven guilty" hated the fact that this woman's claim was being investigated at all. They decided this based simply on who she was and because of who the alleged rapists were. Look at the number of people who said they knew the truth about this lying **** the day the story broke. They don't have ESP. They decided that women like her can't be raped, especially not by upstanding white college men. Case closed.

Not only that, but many of them said that if the support for the investigation of this case weren't dropped immediately that they would no longer put any effort into fighting rape. (As if they put any effort into fighting rape before.) They talk about justice in one moment and then show how selective and petty they can be about justice in the next moment. I can almost see some of these people standing at the door to an exam room yelling, "Call the Duke lacrosse players heroes and admit you were part of a grand feminazi conspiracy or the rape victim gets it."

Of course they don't make these threats directly. They declare that they would never want "real" rape victims harmed, they just want policies that are as ridiculous and unjust as if they were asking to put polygraph machines in every exam room and telling all alleged victims, "You must take the test before evidence is collected and if you don't pass the test, you will be charged with a felony. So, are you feeling lucky?"

If you demand that people acknowledge that alleged rapists can be innocent but never consider that those accused of lying about being raped can also be innocent, you need to read Cry Rape: The True Story of One Woman's Harrowing Quest for Justice by Bill Lueders. You also need to consider why injustices like this aren't as well known as the cases where men who are exonerated.

Now on to this statement from the News & Observer:

"It is very troubling for anyone's faith in the innocence commission when its director [Kendra Montgomery-Blinn] testified for a man who tried to put demonstrably innocent people in prison," said Joseph B. Cheshire V, a Raleigh defense lawyer who represented a lacrosse player. "It's going to take a lot of work to give anyone any comfort that she can properly screen claims of innocence."

There's a huge flaw in this statement. The defendants weren't demonstrably innocent when the allegations were made and they weren't demonstrably innocent even when the DNA test results came back. They weren't demonstrably innocent when the case was turned over to the state attorney general's office which had to go through all the evidence in this case before the AG could state his belief that the defendants were demonstrably innocent.

So that takes us back to the assumption that the DA should have ESP and just know immediately who is innocent and who is not without the need for criminal investigations or evaluating evidence related to the alleged crime itself.

That's blatant bigotry. And it is in no way upholding the principle of innocent until proven guilty.

The level of violent hatred directed at this alleged victim long before the first DNA tests came back revealed a level of moral corruptness that took my breath away. Some of these people read my blog and decided that I deserved to be a target of the same violence as this ***. That these people who gloried in the thought of violent physical assault and rape then claimed to be on the side of justice and rule of law and of course against all "real rapes" was nearly unbelievable.

I've started seeing people using Bible passages in relation to this case such as Proverbs 21:28 "A false witness will perish, and whoever listens to him will be destroyed forever." The way these passages are being used makes me shudder at the implied violence. I doubt these people trotting out this passage are thinking about men who lie and say, "she consented" and all those who believe those men.

Some people seem incapable of assuming the alleged victim is legally innocent until proven guilty or understanding logical reasons for me to disagree with them:

[Bob In Pacifica:] The woman was raped at 15. [...] If she wants to go through life presuming guilt, so be it. If this case doesn't move her away from the "all men are rapists/women don't lie about rape" position then nothing will.

[niffari glynn:] I've read this woman's blog before and she strikes me as having more than a few emotional issues.

These 2 can't comprehend the points I'm making when I criticize their cherished position so rather than critically reviewing their own position, which I am challenging, with a willingness to learn, they immediately smear my character. They say I'm assuming guilt when I do no such thing. They quote words I've never spoken or written -- and don't believe -- and they claim they are against false accusations.

Talk about not being credible.

For too many people assuming innocence of an alleged rapist means assuming the alleged victim is a liar or delusional. And I'm the one who doesn't understand the law or logic when I call bullshit on that assumption.

I also call bullshit on those who say about other rape cases that if no charges were filed then no crime was committed. People show that they don't truly believe this principle when they say the alleged victim in the Duke case perpetrated a crime by reporting and cooperating with police and prosecutors. No charges were filed so by these people's own logic no crime was committed.

If people can't imagine why Nifong would want this case fully investigated for any reason other than political gain, that tells us more about their ethics than it does about Nifong's. But then squashing a rape investigation before it is complete is considered by many to be perfectly ethical and never driven by ambition or bigotry.

When people say the outcome of this case should stop all similar allegations from being investigated that's not a system that has anything to do with justice. That's a system which holds a "don't ask, don't tell" position about most rapes.

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posted by Marcella Chester @ 12:36 AM   17 comments links to this post


At June 22, 2007 9:45 PM, Anonymous Anonymous said...

Are you saying that the three lacrosse players are GUILTY of the acts that Crystal Gail Mangum accused them of?

Just curious.

At June 22, 2007 10:37 PM, Blogger Marcella Chester said...

No, I'm not saying that they are guilty. The AG was absolutely right to drop the charges against them.

This case is no more of an example of why we have a legal system of innocent until proven guilty than any other case -- even those where a jury finds the defendant guilty.

This case shows the miraculous power of spin and money. Sometimes the end result is justice, but sometimes it allows the guilty to walk free. If we had a system of guilty until proven innocent, this case would have likely had the same outcome.

Look at Genarlow Wilson. Guilty of the charge which landed him in prison and through spin and money and carefully applied pressure he's become innocent in most people's eyes.

The majority of defendants and prison inmates in the US don't have those resources and may have more to fear from the legal system, especially if they can't afford to hire a competent defense attorney. Just look at the budget cuts for public defenders offices.

At June 23, 2007 5:45 AM, Anonymous Anonymous said...

Two sides to every story no doubt.

What about Project Innocence and men falsely accused who have been exonerated?

Falsely accused and convicted men in prison face a great risk of rape themselves. Do you support the movement to Stop Prison Rape?

At June 23, 2007 8:23 AM, Blogger Marcella Chester said...

Yes, there are two sides to every story and I advocate for the presentation of the relevant evidence for both sides. Just as I believe that deciding cases on bigotry about alleged victims is wrong I believe the same thing about those accused of crimes. I'm not just talking about negative bigotry. Sometimes bigotry is a false belief in someone's inherent goodness.

I believe that thorough, competent and ethical investigations and processing of truly relevant evidence benefits us all.

I firmly believe in the importance of what the Innocence Project is doing and have blogged about those wrongly accused of rape. I also believe that some people who are viewed as wrongly convicted are guilty. There is a serious risk to the public if a rapist or murderer is wrongly set free. Most of those exonerated were convicted of real crimes and that harms justice for victims as well as for those wrongly accused. But I don't support the scapegoating of victims and alleged victims for this problem or those who use these cases to make unfounded claims. It's wrong and does nothing to solve a very real problem.

Because of the publicity around men falsely accused of crimes, the women who have been falsely accused of crimes (such as real rape victims) are often assumed to be mythical creatures. That's as dangerous as assuming that all men accused of rape are guilty.

In every case no matter how much it seems that guilt has been assigned properly, we need to consider, "What if we are wrong?" This is true whether we are talking about defendants or alleged victims.

I want all rape stopped including prison rape and not only against male prisoners but against female prisoners. Nobody deserves to be raped. This is why I am also against rape threats or people expressing joy at the idea of someone they disdain getting raped or assaulted or murdered.

We shouldn't glory in the violation of another human being -- even if we hate that person.

At June 23, 2007 9:40 AM, Blogger Seeing Eye Chick said...

If the Genarlow Wilson case was about Consensual sex acts How is that like the Duke case, which involved a rape accusation.

Times are different now, but when I was a teen, it was not unusual for younger girls 15 or so, to pursue older boys-18, 19 yrs old.

Even back then, sexual contact could be considered statutory rape in some states, but I also know that I lied about my age, and so did the other girls I had contact. I could and often did pass for someone in my early 20s to the point that I had no problems purchasing alcohol.

This was a common enough practice, that it was fodder for books and movies. I would feel horrible, if the law were to go back and pursue those men as rapists and then label them as sex offenders. And I would aid in their defense.

I dont know if that is similar to the elements of the Genarlow Wilson case, perhaps I am confused as to which case you are referencing.

Rape is a violation. It is a lack of consent. It is not mutual, sexual experimentation between teenagers. Even 18 yr olds and 15 yr olds.

Sure my parents would have had a cow, and my dad would have probably "killed" some kids, or maimed them horribly, but that still would not make it rape. It would make it an uncomfortable realization that their teenage daughter is sexually active.

That being said, the nasty attacks against you are inexcusable. If you cannot make your case without threats, then it seems you loose by default.
That, and the Bible is not a weapon.

At June 23, 2007 10:32 AM, Blogger Seeing Eye Chick said...

Okay, here are some materials that may clear some things up. I agree with you Marcella that the attacks on the character of many rape and sexual assault and harassment victims are egregious. But there is a reason that we have the laws that we do. They are not perfect, because the people who uphold them in our justice system are fallible human beings.

About the dialogue concerning the defense attorney here is what I have found according to the American Bar Association via Cornell law EDU:

ABA Model Rules of Professional Conduct 2004

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

Rule 1.1: Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2: Scope of Representation and Allocation of Authority between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

[definition of Know] (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

So here we are at: As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.

If the Client Asserts their innocence and the is still a lack of evidence that reasonably suggests otherwise, then the lawyer is legally bound to put forth the client's desired defense. Otherwise the lawyer could be disbarred. So in order for what you propose to happen, the lawyer would have be provided with irrefutable proof that the client is offering fraudulent testimony.
So are we to then have a trial before we can have a trial? It would be double jeopardy at that point, and in addition to setting a dangerous new legal precedent, after it was thrown out, any hope of prosecuting this person for this crime would vanish, because the law says you cannot be tried twice for the same crime.

Here are other references pertinent to this discussion:

In the United States, a public defender is a lawyer whose duty is to provide legal counsel and representation to indigent defendants in criminal cases who are unable to pay for legal assistance. Public defenders are employed by the government (at the federal, state or county level), or they work for non-profit entities funded by the government (see below), as opposed to criminal defense attorneys in private practice. Appointed counsel are required to be available for anyone accused in criminal court, who is exposed to any likelihood of imprisonment, by the 6th Amendment and the Supreme Court decision Gideon v. Wainwright. Most jurisdictions choose to comply with their Gideon duty by establishing public defender offices, but a substantial minority complies with Gideon by having panels of appointed private counsel.
Amendment VI (the Sixth Amendment) of the United States Constitution codifies rights related to criminal prosecutions in federal courts. The Supreme Court has ruled that these rights are so fundamental and important that they are protected in state courts by the Fourteenth Amendment's Due Process Clause.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense...

...The Sixth Amendment, guarantees the right of defendants to procure the assistance of counsel. The defendant has the right to not only be heard through such attorneys as he pleases but furthermore, the defendant may represent himself. The court may, however, deny the defendant such a right when it is deemed that the defendant is incompetent to waive the right to counsel....
In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions....Procedural due process basics
Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.

Speedy Trials, Due Process, Right to competent and zealous legal councel; personally I like those ideas. I realize that money changes everything, but in the absence of that, I will take whatever I can get, should I ever find myself or a loved on on the wrong end of the legal stick, for whatever reason.

Those laws are there to protect us all, from each other. And hopefully from turning the law into a blunt instrument of revenge, or a vigilante. I dont want Lynch Mobs. I dont want public beheadings, or floggings or the return of strapadas.

I want a legal system {however imperfect} to be set up for the benefit of all citizens.

The reform that is needed is cultural. If we dont change the perception of sex crimes in the public eye, then the legal system will always reflect social standards of belief and community values.

The issues with our legal system are reflective of greater social malaise in regards to money. It is parallel to our health care system breakdown and the increasing exorbant expense of a college education.

Change is possible. But dont expect it over night, or even in the next decade. Expect tiny increments to be won over decades.

Innocence before Guilt is fundamental. The burden of proof should be on the state or the plaintiff to prove that it is necessary for the state to take action, even incarceration if necessary.

Without that, We might all suffer the threat of being thrown in Guantanamos for who knows how long, for Gods know what, with some drooling idiot of an in-law of the judge, for legal representation.

As difficult as life has been for me, I dont want that to replace the country I live in now.

At June 23, 2007 7:07 PM, Anonymous hman said...

You (and others) say that supporters of the Lax guys are upset that Nifong "investigated" the alleged crime.
That is way off. We are/were upset that he went ahead with the case, for over a year, without doing any serious investigation - which he knew would have exonerated his victims.
Were you aware of the fact that
1. He had the accusers cell phone but tried to keep anybody from checking out the calls she made and received at the time she was at the party?
2. He never interviewed any of the Lax guys whether they were accused or not (apart from the initial statements given by the guys who lived at the house.
3. He refused to even listen to evidence which put one of the suspects a mile away during the alleged crime. Considering how shaky her IDs were, you would think he would welcome some help in his search for the real guilty ones (if they existed).
4. Nifong never re-interviewed Kim Roberts to clarify the claims by the accuser that she helped them rape her and then stole her money.. He just ignored it.
See, the problem with this case and what provoked such outrage is that it can be shown that Nifong KNEW THEY WERE INNOCENT, almost from the start. That is why he resisted doing any investigating after the DNA came back negative. And that is not cool.

At June 23, 2007 8:55 PM, Blogger Marcella Chester said...

Hman, your description may describe what you wanted, but it isn't what most of those who attacked my support for a full investigation wanted. The violent tone many people directed at everyone who didn't immediately accept their description as proven fact undermined their credibility.

On trusting details given on the blogosphere -- then and now -- much it's heresay and in many cases heresay from anonymous sources or heresay from the defense attorneys. For example, can you give me verifiable (non-heresay) sources for the facts you stated in your comment?

At June 24, 2007 12:24 AM, Blogger Marcella Chester said...

Admin note: Hman responded but did not give direct links to any original non-heresay source for each of his specific assertions. Instead he included more heresay and general editorializing.

FYI "If you listen to the hearing it is obvious ..." is not a specific source. Neither is a broad claim that the proof is in the AG's report. If the proof is in a document or transcript, reference the source exactly.

If someone else has specific links to the exact factual source material (not a blog or forum or article where these assertions have been previously stated) for Hman's assertions please let me know.

If these claims are proven facts then they will have specific and verifiable non-heresay sources.

At June 24, 2007 7:59 AM, Blogger Marcella Chester said...

Seeing Eye Chick, this situation which landed Genarlow Wilson in prison was no Romeo and Juliet relationship. It's no coincidence that in this type of situation that people talk about girls servicing boys. Nothing mutual about it.

The pressure to comply can be immense which is why we have statutory rape laws. If we only talk about how a child feels in the moment then many charges against teachers should be dropped. To the child being exploited this "romantic" relationship with an adult may feel much more like Romeo and Juliet than when members of a sports team have their way with drunk girls.

At June 24, 2007 12:10 PM, Anonymous Anonymous said...

Marcella, you are truly delusional. There are many verifiable sources that outlined what you don't like reading and hearing quite clearly. You are exposing yourself to libel and slander lawsuits, which you would lose. Try growing up.

At June 24, 2007 1:37 PM, Blogger Marcella Chester said...

Anonymous (Hman, I assume), it isn't slander or libel to ask someone to provide non-heresay evidence to back up their specific claims of criminal wrongdoing.

Saying someone is editorializing and refusing to approve their editorial also isn't slander or libel.

At June 24, 2007 2:10 PM, Blogger Marcella Chester said...

To the latest Anonymous, what part of non-heresay don't you understand?

At June 25, 2007 8:02 AM, Blogger Marcella Chester said...

Seeing Eye Chick:So in order for what you propose to happen, the lawyer would have be provided with irrefutable proof that the client is offering fraudulent testimony.
So are we to then have a trial before we can have a trial?

I have no idea what proposal of mine you are referencing here.

At June 25, 2007 9:46 AM, Anonymous Anonymous said...

I provide you the sources and citations and you don't like it. Continue to take the position of committing libel and slander and you will be sued.

At June 25, 2007 10:47 AM, Blogger Marcella Chester said...

What specific non-heresay sources and citations, anonymous? Telling me to go to someone's blog and look it up isn't providing me with any citation. If you are going to threaten to sue me for libeling and slandering you then you should at least have the courtesy of revealing your full identity.

At June 25, 2007 3:27 PM, Anonymous Kali said...

Just because there isn't sufficient evidence to convict the lacrosse players doesn't mean that we can be certain that they are not guilty. They may or may not be guilty but we don't have enough proof to convict them.

Something definitely happened there. They probably raped her with an object, so they didn't leave any DNA.

And regardless of whether they are guilty of rape or not, they have definitely shown themselves to be scum of the worst order.


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