Monday, July 14, 2008

More about the Addison Motion clanger comments: my responses

I’m continuing here responses to parts of some comments on the thread of More about the Addison Motion clanger.

It will help you understand the content of this post if you're familiar not only with More about the Addison Motion clanger and its thread but also with A clanger in the Addison Motion to Dismiss and its thread.

With that said, the commenters are in italics; I’m in plain

The precedent set here could be huge, and this is larger than just who wins or loses this case. Ronald Stephens shot a huge hole in civil liberties with his race-based NTO, and I do hope that the court says something about it.

By “[t]he precedent here could be huge, and this is larger than just who wins or loses this case” I’m assuming the commenter means the following:

A state court order (NTO) treated 46 citizens as suspects in a multiple felony case based solely on their race. Therefore the state court ordered the 46 to submit to police DNA testing and face and torso photographing.

The federal court system, at least at the district level (and likely at the appellate level as well), will review and rule on matters concerning the constitutionality of the state court's order.

The effects of any federal court rulings for individual rights, for the circumstances under which courts can issue NTOs, etc., would certainly be, as the commenter says, “huge.”

That no doubt is one of the reasons why the nation’s most highly regarded attorney in the areas of uses and abuses of court-ordered DNA testing, Barry Scheck, is a lead attorney in the suit brought by the three innocent young men against Durham City, Durham Police, DNA Security and individuals associated with each of those organizations.

The attorneys in several briefs charge that the Plaintiffs allege they have a right not to be investigated when there is a possible crime.

But the Plaintiffs have never alleged that; only that any investigation must be conducted with respect for the constitutional rights of suspects.

This is a blatant distortion of the pleadings; and the Court should (but probably won't) take notice of it.

You’re right on your main and very important point: it “is a blatant distortion.”

As to what the court will do about it, I won’t offer an opinion now other than to say what attorneys have often told me: briefs containing distortions in the form of ridicule and/or denigration of the other side’s case are almost always counterproductive.

Ronald Stephens shot a huge hole in civil liberties with his race-based NTO, and I do hope that the court says something about it.

I'm confident the court will have plenty to say.

I've not spoken to any attorney who doesn't think the NTO was unconstitutional or doubts a federal court will so find.

Where was the ACLU to complain about this?

It was MIA. If the suits gain public attention, as I think they will, the ACLU at the state and national level may “come out from under the rock.” It's past time they did.

Where was the Duke Law School to complain about this?

The silence of the Duke Law School faculty as the hoax and frame-up attempt played out on their campus and within a few miles of their classroom podiums is shocking.

I’ve posted on the Law faculty’s silence when Reade Seligmann was threatened by racists on May 18, 2006 outside and within the Durham County Courthouse.

I’ll continue bringing up that matter and other aspects of the perplexing and shameful silence of almost all Law faculty in response to the hoax and frame-up attempt.

Why hasn't the NC Judicial Standards Commission started investigating the judges who made such outrageous rulings in the lax case?

I’m sorry, but I don’t know enough to attempt an answer to your question.

Why hasn't the NC Board of Nursing started investigating the actions of Levicy?

I offer the same answer as above.

Why hasn't the NC [State] Bar started investigating[s into] the actions of many of the attorneys involved?

One reason is the actions which may yet call for State Bar action are still not “settled” in the sense that there’s even agreement they happened.

For example, there is yet no public acknowledgment by Duke or its dean of students, Sue Wasiolek, an attorney and State Bar member, that she advised the lacrosse players not to tell their parents and not to seek legal counsel other than to involve themselves with an attorney, Wes Covington, who knew Durham Police and its court system, and would "take care of things," so to speak.

Should discovery proceedings reveal Wasiolek did so advise the players, attorneys tell me that’s something they believe the State Bar would consider looking at although a number of factors would influence when the Bar would do that.

As a matter of fairness I want to point out Wasiolek has never been the subject of State Bar disciplinary proceedings of any kind.

The actions and inactions of a number of other attorneys involved in the hoax, frame-up attempt and its ongoing cover-up could also be subject to State Bar review, especially if what defense attorney Joe Cheshire said last year – that a thorough investigation of the Duke lacrosse case will very likely uncover criminal conduct – proves true.

Keep something else in mind: A federal judge can refer an attorney to a state bar association for review of the attorney's conduct in matters that have come before the court. Federal Judge Susan Webber Wright made a referral to the Arkansas state bar following then President Bill Clinton’s testimony in a civil proceeding involving Paula Jones. Among the consequences of Wright's referral was Clinton's eventual disbarment by the U. S. Supreme Court in response to a request from an Arkansas State Bar committee.

The other question that I have concerns Linwood Wilson acting as his own attorney. Does he have a legal background? If not, who is advising him in his responses to motions? Is he preparing the way for any judgment that might go against him to be thrown out based on inadequate representation ("only a fool hires himself ...")?

You no doubt know Wilson’s not an attorney.

As a former private investigator and subsequently an investigator in the Durham DA’s office, he’s surely more familiar with some aspects of the law and investigative and prosecutorial procedures than the average citizen. However, it's a very safe bet that there are “big holes” in his knowledge in those areas.

I don’t know who, if anyone, is advising him.

I don’t know whether Wilson is “preparing the way for any judgment that might go against him to be thrown out based on inadequate representation.”

In criminal cases a defendant is entitled to be represented by counsel, with the court appointing one or more when the defendant can’t afford to hire an attorney. In some instances, courts in criminal cases have even overruled a defendant’s wish to represent himself and appointed a defense counsel.

But right now Wilson’s involved in a civil proceeding. I don’t know what defendants’ rights are as regards a right to counsel in civil cases; or what the court’s responsibilities are as regards defendants in civil actions and a right to counsel.

I hope attorneys will comment on those questions.

It would seem that the defendants in this case are still hoping that all of this will somehow be swept under the rug and will go away.

We can all understand why they’d hold such a hope. But I’m confident they’re going to be disappointed.

Except for what one reads here, on liestoppers, and DIW, there is no national coverage of what is occurring. I cannot understand the lack of concern that seems to permeate the reading public on this issue of political correctness that seemingly has permeated all levels of society in this country - the case of the IUPUI student is just another example of this. We have administrators, police, and prosecutors who are more than willing to insist that their version of things must be correct and even when the evidence contradicts their positions, they insist then that the evidence is faulty or dead out wrong because nothing should be able to get in the way of the politically correct narrative that they have spun.

You say some very important things I want to comment on, but not now at the end of a long post.

But I didn’t want to overlook your comments; and they provide an appropriate note on which to end this post. So there they are.

Thanks go to the commenters cited here and to all of you who provide such commentary.

You all add to the blog.



Ex-prosecutor said...

A civil unlike a criminal defendant has no right to a free lawyer. So, Linwood Wilson is on his own.

Here's some of what he faces. There will be many, many depositions taken in this case. Court reporters charge by the page for copies, and I'll bet that their charges for a single set of depositions will be many thousands of dollars, easily $25,000 or much more. This figure doesn't count getting copies of records, which also are expensive.

If I were Linwood Wilson, I'd attend just the depositions of those who could impact me, meaning I'd skip those of the Duke administrators. He'll need to hear what others are saying about him so he can get his trial testimony ready.

If Linwood Wilson simply ignores the lawsuit, because he knows that he could never pay such a massive judgment as is likely, the plaintiffs can take a default judgment against him in whatever amount they can prove he damaged them.

This may sound like heresy, but I think that Linwood Wilson may do better by representing himself that he would if he had a lawyer.

The cases against him and Mr. Nifong look to me close to slam dunks, and that why I think the judgment against him may be lessened by his self-representation.

There's always a danger that jurors will feel somewhat sorry for a defendant who represents himself. It's obvious the defendant can't afford to hire a lawyer, so a big judgment against him will be uncollectible. Such a result is more likely when there are other defendants who can pay a big judgment, such as Duke and the city of Durham.

It also means that the plaintiffs' lawyers may have to take it somewhat easier in their treatment of him because his being alone in the courtroom contrasts with the other defendants and their hoards of lawyers.

However, I suspect that even if the jury feels somewhat sorry for Linwood Wilson, the judgment against him will far exceed his assets. Then he can hire a bankrupcy lawyer and see if the judgment is dischargeable.

Anonymous said...

I think the ACLU will treat this as like the second amendment - not part of their mission. Protecting a bunch of white college students - pffft.


Anonymous said...

I think the national press is ignoring this story for two reasons.

1) It deals with legal technicalities which require thought and effort to understand.

2) The original story dealt with juicy stereotypes--hard-working single mother, rich white boys, brutal rape. The press won't sell many papers by explaining why none of that was true.

Anonymous said...

NC to CA- on Melanie Sill: "You can't hide your lying eyes!"

I ran into a post by an Anonymous CA- Sacbee poster. I think he/she had it just about right.
"Here's an interesting tidbit about
Melanie Sill:
The Bee hired Melanie Sill as their new editor to invigorate the brand. She was the guilt presuming columnist at the Raleigh News and Observer who wrote the infamous "We know you know" column at the beginning of the Duke non rape, non assault - lets hang the white boys hoax.

Her inflammatory writing was instrumental in igniting the racial firestorm and to hell with due process ethic with which DA Nifong was able to perpetuate this criminal conspiracy. Only in the MSM could such incompetence be rewarded with a promotion."

Anonymous said...

While I agree in part with anonymous 7:10 regarding my comments about the national press failure to continue coverage of the lax hoax - I believe that it is also a function of the fact that the local North Carolina papers and electronic media failing to pursue this as well - after all, if they were to continue to hammer away at this (a watchbox column?) then the chance that it might be picked up by the national press would be greater. In some ways I am surprised that 60 Minutes has not done a follow-up given that Ed Bradley's coverage of the case helped to turn public opinion around to the fact that "there was something rotten in the state of Durham" - something which those of us who followed the affair knew from the beginning.
Perhaps some enterprising stockholder of Wachovia will attend the next Wachovia shareholders meeting following Bob Steele's elevation as CEO and pose a tough question to its eminence about the Duke case and his comments that sometimes bad things happen and that is life - a great way to run a corporation. If, as some believe, that Jamie Gorelick will be nominated for a post in an Obama administration, then it will be incumbent to put pressure on those in the Senate who will be deciding whether she is confirmed to ask her the tough questions as well. Pressure must never be allowed to wane when it comes to those who were and are responsible for the harm that was done by the knowingly false accusations of Crystal Mangum. While it is not within one's power to turn back the clock, the least that everyone who is concerned can do is to continue to speak out both verbally and orally about the hoax and the attempts byt those who knew better to perpetuate it.

bill anderson said...

My earlier point about the NTO was that it was race-based and it was very wide-sweeping. It could have been challenged, but the only reason that the players did not was because they KNEW they had not touched Crystal and they believed the police and prosecutors when they were told that the DNA would solve the matter.

For a judge to issue such a wide-sweeping NTO, KNOWING it was unconstitutional, is reckless in and of itself, and Ronald Stephens should have been disbarred or at least disciplined for what he did. Had he issued it against a group of black students or black residents in a neighborhood, it would have been exposed for what it was, and Stephens would have been in trouble.

The reason I said it was huge is that the U.S. legal system is based in large part on legal precedent. Once something happens and it is not legally challenged, then it becomes quasi-enshrined in U.S. law. In fact, we see Jamie Gorelick declaring that the NTO was reasonable and warranted, despite the fact that it was based on all sorts of measures and assumptions that could not pass a legal smell test.

The players cannot challenge the constitutionality of the NTO in their present sets of lawsuits, as they already had agreed to abide by the terms. Now, they can say that the NTO was fraudulent, and they can invite comments from the judge. They also can highlight the fact that a former assistant attorney general is openly advocating race-based testing, and they can make some political hay from it. (In fact, you can bet I will deal with it in a future article of mine.)

The players in their suits are not arguing for or against the constitutionality of the NTO, but rather the fact that there was no evidence for it except that which was fabricated. Gorelick, on the other hand, is arguing that since Crystal made an accusation, that was all that was legally needed to trigger an NTO, since under North Carolina law, no corroborating evidence is needed in order to gain a rape conviction.

However, the players ARE free to argue (1) Crystal was lying, and (2) the police and prosecutors had good reason to believe that she was lying, and (3) the police, Duke, and Nifong conspired with Crystal to advance the lie. The NTO comes into play then, as it was triggered by a lie being told by police, Crystal, and Duke employees.