The News and Observer Weighs In

by Cliopatria

Though I'm a minority among Cliopatriarchs on this score, I continue to believe that a considerable difference exists between criticizing procedural improprieties in an investigaton and rushing to judgment on the facts of the case, or failing to urge authorities to respect the due process rights of your own institution's students, as the Group of 88 faculty did at Duke.

This morning's Raleigh News and Observerraises the point about procedure as well, in its lead editorial. The first paragraph:

When someone lodges an official complaint that he, or she, has been the victim of a crime, the police and other authorities within the justice system are expected to respond with resourcefulness and determination. Yet their methods are supposed to be controlled by standards of fairness.

The editorial reviews several"disturbing" procedural elements of the investigation; the editors might have elected to publish this article before the election.

An even stronger procedural critique than the News and Observer comes from Stuart Taylor, a columnist and senior writer at National Journal. His column in this week’s Journal lays in out in more dispassionate terms than I have managed the “evidence of gross prosecutorial misconduct” in the investigation by Durham DA Mike Nifong. (Taylor also chastises the Duke faculty for its silence in the wake of such procedural abuses.) Taylor’s piece ranges from the photo array, characterized as “so grotesquely suggestive and unreliable that one expert compares it to ‘a multiple-choice test with no wrong answers’,” to the district attorney’s having “rudely spurned repeated requests by defense lawyers for a chance to show him exculpatory evidence.” “Such conduct,” Taylor maintains, “is not usually seen as grounds for disbarment. It ought to be.”

Taylor carries considerable prestige in Washington: his mid-1990s column that Paula Jones had a viable legal claim (which, as events developed, proved true) was a turning point in the Clinton scandals, prompting far more serious consideration of a case that, except in far-right circles, had previously been dismissed as legally absurd. Hopefully his weighing in on Nifong’s actions will have a similar effect.

The article contains two details I hadn’t previously seen reported: the specific statement of the forensic sexual-assault nurse, which is far milder than has been portrayed and contains no mention of the word"rape"; and the specific context for the “cotton shirt” comment that Tim Burke wrote about a few weeks back. In combination with the findings of the Coleman Committee report, Taylor’s article also casts considerable doubt on allegations that other team members used racial epithets on the evening of the incident.

Taylor added that “for weeks, Nifong made numerous inflammatory and racially charged statements expressing certitude that there had been a rape and holding up the lacrosse players to condemnation as a bunch of ‘hooligans.’ (He has more recently declined interview requests. Through his legal assistant, Nifong repeatedly declined to respond to my questions for this article, drafts of which I e-mailed to his office.)” Indeed, Nifong’s penchant for inflammatory statements became a major issue in his campaign (as well as possibly violating state bar ethics guidelines), and he promised to cease making such comments. But having been safely re-elected, Nifong almost immediately reversed course and returned to the airwaves: in the last 24 hours, he conducted interviews. With WRAL, a local TV station in Raleigh, Nifong didn’t deny defense claims that he declined to meet with attorney Kirk Osborn after the indictment when Osborn wanted to present exculpatory evidence regarding his client.

With MSNBC, the DA showed that he has learned from his previous mistakes—as when he assured the court that the first round of DNA tests would “immediately rule out any innocent persons.” He no longer promises too much, and there’s nothing in his current comments that cross any ethical lines. Instead, he hints at damaging evidence to come. For all we know, he has troves of such evidence, though he’s struggled to deliver on previous promises. And I suspect we won’t see either the DA or most in the Duke faculty attempting to respond to Taylor’s devastating assessment of the procedures employed in the case thus far.

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Irfan Khawaja - 8/4/2006

You're absolutely right.

Yet another angle on the same issue. Consider this ACLU-NJ lawsuit against Peter Harvey, former Attorney General of NJ:

http://www.aclu-nj.org/legal/legaldocket/deborahjacobsvpeterharveye.htm

The ACLU's objection here is a pre-emptive one, one that precedes any actual Fourth Amendment violation. Their claim is that police departments have a duty to disclose lists of what they take to be potential threats. The fear is that the threat list has been drawn up in a prejudicial way. Bear in mind that objection is not to any actual search and seizure, merely to the drawing up of a list.

If drawing up a list of potential threats is enough to trigger a lawsuit by the ACLU, what about a compulsory seizure of DNA in the absence of probable cause?

Irfan Khawaja - 8/4/2006

Here's the ACLU-NJ link in embedded form:
Jacobs vs Harvey

Irfan Khawaja - 8/4/2006

I am puzzled about one procedural issue here. The Fourth Amendment stipulates that searches and seizures can only proceed after demonstration of probable cause. Probable cause is a reasonable person's belief that a crime has been committed or is underway. But probable cause has to be demonstrated in each case where a search or seizure is to take place, right? It can't merely be predicated of a loosely-tied-together group so as to enable evidential fishing expeditions against everyone in the group.

A compulsory DNA sample is a search and/or seizure. So it should follow that probable cause has to be demonstrated to take one. (Right?)

If you have 46 lacrosse players, don't you have to establish probable cause of each of the 46 before you go ahead with search/seizure of their DNA? If so, how was that done here?

As far as I can tell, all that the DA knew at the time of the compelled DNA testing was that someone had possible committed rape and that that someone was possibly a white Duke lacrosse player. But that doesn't constitute probable cause in the case of any given player. So did the DNA seizure just flout probable cause? In that case, it violated the Fourth Amendment. Or am I wrong on the facts here, and the DNA was taken voluntarily?

If the DNA was taken by compulsion, the implication of the DA's action strikes me as astonishing. I look Middle Eastern and I live in north Jersey. If someone detonates a bomb in north Jersey, and a witness says merely that he saw a Middle Eastern person detonate the bomb, does that establish probable cause of every Middle Eastern guy in north Jersey? Can they send a SWAT team smashing through my door to do a dynamic entry search- or arrest- warrant because I belong to a group such that there is probable cause against some member of that group?

For that matter, if a white woman alleges rape and identifies her attacker as a "black utility worker wearing a PSE&G [Public Service Electric & Gas] utility uniform" does that mean that the DA has probable cause against every black PSE&G utility worker in his jurisdiction? Or maybe every black male in the whole utility company?

The whole approach strikes me as surreal. Am I missing something?

Robert KC Johnson - 5/6/2006

Irfan's point--it seems to me--is extremely well taken, and has received almost no attention (because so much has come out afterwards). But the long-term implications are ominous.

Consider this in a slightly different context. A white woman claims to have been raped (with unclear but suggestive physical evidence) in a common room of a predominantly African-American dorm (as many campuses currently have)--say, 40 of 45 residents are black. She says she was raped by three black men at the party. She isn't presented with a lineup of the residents of the dorm for a potential identification, even to narrow down those who were present at the party; indeed, the police aren't 100% sure that either (a) all the residents of the dorm were present at the dorm of the time of the alleged rape; or (b) whether there might have been a few non-resident black men--perhaps friends of the residents--present at the time of the alleged rape.

Nonetheless, after the black residents hire lawyers and refuse to talk to the police without their lawyers present, and without undertaking any additional inquiry, the DA gets a court order to compel the black residents of the dorm to turn over their DNA.

I suspect that most civil liberties groups would have been horrified by such behavior, and vehemently protested--appropriately so.

Of course, a case can be made--"if they were innocent, why would they mind turning over their DNA to the state?" But our legal system doesn't operate under this approach.

What makes this particular action even more outrageous is that the DA based his original court filing on an explicit affirmation that the findings would exonerate the innocent. But then, even though the DNA tests of the two players that he indicted didn't come up positive, he indicted anyway, based on a photo ID that occurred three weeks after the incident and violated state guidelines in not one but two ways.

Oscar Chamberlain - 5/6/2006

This may not be applicable to the Duke situation, but it is becoming more and more clear that police departments are deliberately pursuing almost any opportunity to expand their DNA data pool.

For example: http://newstandardnews.net/content/?action=show_item&;itemid=1044