ewv

Stopping prosecutorial abuse in the Duke "rape" case

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Today's Wall Stree Journal's Opinion Journal featured article on the theme of how "competition" in a legal and political battle beat back a runaway abuse of power in the phony Duke rape case prosecution. There are many good insights here on how the legal system works, but it leaves open the question of how a better form of objective law might have prevented the abuse and the subsequent zoo from ever occurring.

The author, Randy Barnett, emphasizes the term "competing governments" several times in showing how the abuse was eventually stopped in this case. The phrase stood out to me because in the 1970's (when he was a student at Harvard Law School) Barnett advocated "free market anarchism", to be implemented with literaly "competing governments" (which at the time was a libertian fad, properly denounced by Ayn Rand in her 1963 essay "The Nature of Government"), but I don't know if he continued -- quietly or otherwise -- to literally hold such a suicidal position. He went on to become a prominent figure in the theory and philosophy of law emphasizing the rights of the individual, and is now a professor at Georgetown University. It would be interesting to see what those with an expertise in philosophy of law think of his work.

LEGAL LIMITS

Three Cheers for Lawyers

Don't think a good defense attorney matters? Think again.

BY RANDY E. BARNETT

Tuesday, April 17, 2007 12:01 a.m. EDT

Years ago, I appeared on "The Ricki Lake Show" in an episode about persons who had been freed on appeal after being wrongfully convicted of crimes. As a former criminal prosecutor with the Cook County State's Attorney's Office in Chicago, I was there to represent the "prosecution viewpoint" (whatever that might be), along with the leader of New York's Guardian Angels representing the "victims' viewpoint."

The other guests consisted of innocent persons whose convictions had been reversed, their appellate lawyers, their parents and a reporter who had helped vindicate a father wrongfully convicted of murdering his young daughter. As I approached the set, I wondered what I could possibly say that would ward off the hoots of the audience, especially given that I was just as appalled by wrongful convictions and prosecutorial abuses.

The point I decided to make was simple: For better or worse, we have an adversary legal system that relies for its proper operation on having competent lawyers on both sides. In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages.

The reaction of the others on the stage with me was stunning. The former defendants all began nodding their heads while their lawyers, who represented them on appeal but not at trial, sat sullenly beside them. Afterwards, some parents even came up to shake my hand.

The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.

Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny. You probably can't picture their faces and don't know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That's because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients' innocence.

These lawyers held the prosecutor's feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor's misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

There is no rule book for what prosecutors call "heater" cases like this one. Navigating the law, politics and publicity in such case is an art not a science. These fine lawyers displayed all the skills and tenacity that made me want to be a criminal trial lawyer after watching the television series, "The Defenders," when I was 10 years old.

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

As a prosecutor working "felony review," when I was in a Chicago police station at 3 a.m. deciding whether to approve charges, I had to evaluate the evidence as if I were a defense attorney. Where is the murder weapon? Where are the proceeds of the robbery? How credible are the witnesses? How was the identification of the accused conducted?

In this way, the mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases even before anyone is charged. Thanks to defense lawyers defending the innocent and guilty alike, prosecutors generally win their cases because they avoid weak cases they may lose. (After the charging stage, a prosecutor's ability to avoid losing at trial by plea bargaining weak cases is a serious, but separate and complex issue.)

Paradoxically, the system's overall accuracy makes defending the truly innocent all the harder. While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence. And that's not easy. Further, because representing the guilty consists mainly of negotiating pleas or knocking holes in the prosecutor's case, defense lawyers do not always develop the skills needed to effectively defend the truly innocent or, as important, know when to deploy them. Defense lawyers become as skeptical about their clients' claims of innocence as everyone else, if not more so. All this contributes to inadequate defense lawyering, which thankfully did not occur here.

Good lawyering alone, however, was not enough to free the Duke players. While the "mainstream" press largely swallowed District Attorney Mike Nifong's narrative of racial oppression, the blogs--especially history professor Robert "K.C." Johnson's blog Durham-in-Wonderland (durhamwonderland.blogspot.com)--provided the means by which the public could learn about the fruits of the defense's efforts. (Mr. Johnson's own difficulty in 2002 obtaining tenure at Brooklyn College over ideologically-motivated opposition was chronicled on this page by Dorothy Rabinowitz, who also, true-to-form, came to the defense of the Duke Lacrosse players.)

Finally, without the competing governing powers of the North Carolina state bar, the Attorney General's office, and potentially the U.S. Justice Department, there would simply have been no one in authority to rein in this prosecutor. It is worth noting, to those who champion political accountability as the highest form of legitimacy, that District Attorney Nifong was elected by, and presumably "accountable" to, his constituents. Nevertheless, his power needed to be checked by competing government agencies and a free press.

Rather than praising the defense lawyers, some of the same folks who whooped in support of Mr. Nifong's efforts are now bemoaning that it was the supposed wealth of these students' parents that enabled them to mount so effective a defense. Never mind that draining all their savings and putting them in debt is an additional injustice resulting from this wrongful prosecution. Of course, as my grandfather used to say, "rich or poor, it's nice to have money," but this case shows that wealth is no defense to public ruin. Sometimes it even invites it.

Let us not be distracted all over again. The difficult problem of innocent defendants typically arises in run-of-the mill cases where prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyering, an indifferent press and an oblivious public. There are no easy solutions to this. But refraining from ridiculing lawyers in general, and criminal defense lawyers in particular, would be a nice start, and one that lies within the power of everyone reading these words.

Mr. Barnett is a professor at the Georgetown University Law Center and author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).

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A quality essay, in my opinion. The "competing governments" in this case seems to mean competing branches of government, which essentially means a republican-type government. That is indeed a virtue. However, the choice of expression Barnett used leads me to believe that he probably retains a memory of the earlier views you ascribed to him, if not an actual trace of them. But whatever outside views he may be holding now, the concrete argument he makes in this essay is spot on.

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I find Barnett's use of the term "competing governments" to be almost unintelligible and out of context. To claim that the "North Carolina state bar, the Attorney General's office, and potentially the U.S. Justice Department" are competing makes no sense. The libertarian/Rothbardian term does not mean that. Nor are any of those entities competing in any sense of the concept of competition. Not knowing anything about Barnett, the phrase may be something he uses as a leftover from his old days (as ewv describes it), or it may be more sinister in that he is trying to smuggle in a package deal by making the phrase commonplace without giving a definition.

Overall, though, Bennett's argument is very good, except for one point of disagreement. "In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer," he states. However, both the prosecutor and the defense lawyer are representatives of the court system. It is both of their jobs to seek justice. The prosecutor has just as much responsibility to judge the evidence that the police collect as does the defense attorney.

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Today's Wall Stree Journal's Opinion Journal featured article on the theme of how "competition" in a legal and political battle beat back a runaway abuse of power in the phony Duke rape case prosecution. There are many good insights here on how the legal system works, but it leaves open the question of how a better form of objective law might have prevented the abuse and the subsequent zoo from ever occurring.

The author, Randy Barnett, emphasizes the term "competing governments" several times in showing how the abuse was eventually stopped in this case. The phrase stood out to me because in the 1970's (when he was a student at Harvard Law School) Barnett advocated "free market anarchism", to be implemented with literaly "competing governments" (which at the time was a libertian fad, properly denounced by Ayn Rand in her 1963 essay "The Nature of Government"), but I don't know if he continued -- quietly or otherwise -- to literally hold such a suicidal position. He went on to become a prominent figure in the theory and philosophy of law emphasizing the rights of the individual, and is now a professor at Georgetown University. It would be interesting to see what those with an expertise in philosophy of law think of his work.

This case is wholly unknown to me, though I understand it was something of a cause celebre in America, I know none of the facts.

One of the perceived problems of the legal system is the significant variation in the quality of defence lawyers available, and, if you can afford the better lawyers, clearly you get the better, more complete defence. I honestly don't know what the solution is however.

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One of the perceived problems of the legal system is the significant variation in the quality of defence lawyers available, and, if you can afford the better lawyers, clearly you get the better, more complete defence. I honestly don't know what the solution is however.

Yes, but what is often not discussed publicly is that we have the same problem with bakers and seamstresses and even teachers: if you can afford the better ones you clearly get better products and services. The solution is simple but radical: take fewer tax dollars but make people responsible for paying their own way, regardless of how little they make. Under a system of Capitalism, spending your money wisely would not be legally forbidden, nor would defense lawyers be legally required to represent clients who could not pay for their services.

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Are you saying that the state could not force a given defense lawyer to represent a client, or that an indicted client should not have the right to legal representation during a trial?

If you mean the former, I believe defense lawyers already have the right not to defend a given defendant. If you mean the latter, I disagree.

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One of the perceived problems of the legal system is the significant variation in the quality of defence lawyers available, and, if you can afford the better lawyers, clearly you get the better, more complete defence. I honestly don't know what the solution is however.

One solution I have proposed is that "loser pays" be applied to criminal cases. If the state brings charges but cannot prove its case, it has to pay the attorney's fees of the defendant.

This would give the defendant a wide choice of private attorneys and not just some employee of the same court system that will try him. If the defendant's lawyer thinks he is innocent, I would expect that the lawyer would be willing to take the case on a contingency basis-- i.e., at no upfront cost to the defendent. With the defense attorney's fees dependent on him winning the case, he would be motivated to do the best possible job for his client.

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One solution I have proposed is that "loser pays" be applied to criminal cases. If the state brings charges but cannot prove its case, it has to pay the attorney's fees of the defendant.

This would give the defendant a wide choice of private attorneys and not just some employee of the same court system that will try him. If the defendant's lawyer thinks he is innocent, I would expect that the lawyer would be willing to take the case on a contingency basis-- i.e., at no upfront cost to the defendent. With the defense attorney's fees dependent on him winning the case, he would be motivated to do the best possible job for his client.

I think that's a wonderful idea. However, how would you handle situations where the defendant is a well known "organized crime" type who used "methods" to make sure he got off? Would you want Al Capone's lawyer being paid by the government after he was able to "convince" one juror to vote "not guilty"?

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I think that's a wonderful idea. However, how would you handle situations where the defendant is a well known "organized crime" type who used "methods" to make sure he got off? Would you want Al Capone's lawyer being paid by the government after he was able to "convince" one juror to vote "not guilty"?

It's all up to how well the prosecution does its job. Observe that the usual "methods" did not work when Guiliani took down the Gambino crime family.

Also "loser pays" would offer the prosecution an additional incentive to do their best.

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