Duke lacrosse: Estrich undermines the legal system

Do you know Susan Estrich? She’s a former aide to Sen. Ted Kennedy and managed Gov. Mike Dukakis’ failed 1988 Democratic presidential campaign.

Estrich is currently Professor of Law and Political Science at the University of Southern California School of Law.

Estrich also writes a syndicated column. Her latest is “Another Team Rape.” It's a confused, error-filled ramble in which Estrich equates Duke lacrosse players who’ve denied felony crimes with another group of athletes who the press reports have admitted to acts which a court of law would very likely judge criminal.

Something else: Estrich demonstrates a stunning disregard – no contempt – for the rights of the accused and the role of attorneys’ in assuring our legal system is based on due process.

I decided to write the Dean of the Southern Cal Law School. My electronic letter follows.
________________________________________________________________

July 13, 2006

Spitzer, Matthew L.

Matthew L. Spitzer
Dean and Carl Mason Franklin Professor of Law and Political Science
The Law School
University of Southern California

Dear Dean Spitzer:

I'd like to call to your attention Professor Susan Estrich’s latest column, "Another Team Rape," which includes the following:

When six prospective members of the Fresno City College football team arrived at the Fresno, Calif., Police Station to be questioned about the alleged rape of an 11-year-old runaway, the only advice they had came from a lawyer whose son once played for the team.

For free, he told them that if they didn't do anything wrong, they should provide statements to the police -- and if they had done "something to be concerned with, even if it was consensual, or if they had done something to abet or aid, they might want to exercise their Fifth Amendment rights." This, according to the local paper.

The police do not always get roadmaps so easily. The Duke boys didn't give them statements. They don't give roadmaps to the police. They never talk to the police without having their own lawyers present.

Two men have already been arrested and are in custody. The Duke defendants are all out on bail.

Dean Spitzer, if I heard what Professor Estrich writes late at night in a barroom, I wouldn't be surprised.

But from a law professor writing for the public her remarks are shocking: she has many facts wrong and exhibits contempt for the rights of the accused and the role of attorneys’ in assuring our legal system is fair.

The “Duke boys” who lived in the house where the gang-rape is alleged to have occurred voluntarily gave police statements. They also voluntarily went to Duke Hospital and submitted to “rape kit” testing; offered to take lie detector tests; and helped the police identify and locate others who were at the party.

After they retained counsel, they and other members of the Duke Men’s lacrosse team were advised to remain silent while counsel sought to arrange for them to speak with police investigators and District Attorney Mike Nifong.

With regard to the players remaining silent, University of North Carolina School of Law Professor Ken Broun recently said: "Their attorneys advise them not to talk to police even if they're totally innocent, because of the possibility that things that you might say even if you're totally innocent in the case might be viewed differently by the person hearing them than you meant them."

Like many Americans, I was brought up to believe and cherish what Professor Broun said; and to abhor those who cast insinuations of guilt on others exercising Fifth Amendment rights. In fact, I was taught and believe that those who do cast such insinuations are engaging in McCarthyism.

I don't doubt that you are very concerned by surveys reporting a decline in the percentage of Americans expressing trust in the fairness of our legal system.

Professor Estrich’s column is an example of the kind of conduct that undermines trust in our judicial system. She ought to be censured for it.

I blog as www.johnincarolina.com. In a few minutes I’ll post there this letter along with some introductory commentary.

Should you care to respond to this letter, I’ll post your response in full along with a link to the post I’m about to put up.

Thank you for your attention to this letter.

Sincerely,

John
www.johnincarolina.com