shouldRE: Ther North Carolina (Duke lacrosse) case/OfflinePlease

Fri Apr 13 18:27:58 PDT 2007

On Apr 13, 2007, at 12:15 PM, Rosenthal, Lawrence wrote:

"...it is unclear whether there is any free-standing due process  
violation when exculpatory evidence is suppressed prior to trial, but  
the defendant is never tried or convicted."  [Emphasis added.]

***
I'm attracted to the interesting, good, formulation which I've  
emboldened, above, and don't recall seeing before.  We're used to  
seeing DP violations in connection with whether a hearing is granted,  
as in Padilla, or whether properly conducted.

One of the other rights that doesn't seem to exist, in so many words,  
at least, is a (due process) right to a competent investigation.  You  
can argue the demerits of an investigation to a jury or fact-finder,  
as affecting the ability to draw guilty conclusions from a set of  
circumstances, but the fact that the investigation was conducted  
poorly doesn't get a case thrown out as a matter of law.  Perhaps  
different where police intentionally destroy evidence, but not if  
they do so accidentally or routinely, as in testing.  Trombetta, a  
DUI case where the breath-testing liquid is consumed in the test  
process comes to mind.  The issue remains especially important in  
considering children's accusations where the case goes forward  
despite difficulties with the investigation, as in McMartin and  
Little Rascals and others during that outbreak in the 1980s.

rs
sfls

> Imbler v. Pachtman, 424 U.S. 409, grants immunity on a claim that a  
> conviction was secured by the use of false testimony at trial  
> coupled with the suppression of exculpatory evidence.  While  
> pretrial misconduct is not per se immunized, it is far from clear  
> that a due process violation occurs if the defendant is not tried.   
> The right to receive exculpatory evidence is chararacterized as a  
> trial right, and it is unclear whether there is any free-standing  
> due process violation when exculpatory evidence is suppressed prior  
> to trial, but the defendant is never tried or convicted.
>
>
>
> Larry Rosenthal
>
> Chapman University School of Law
>
>
>
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof- 
> bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Friday, April 13, 2007 10:20 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: shouldRE: Ther North Carolina (Duke lacrosse) case/ 
> OfflinePlease
>
>
>
> What about the alleged withholding of exculpatory evidence,  
> including the alleged instruction to leave out exculpatory evidence  
> from the forensic (DNA?) report?
>
>
>
> Mark S. Scarberry
>
> Pepperdine University School of Law
>
>
>
>
>
>
>
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof- 
> bounces at lists.ucla.edu] On Behalf Of Howard M. Wasserman
> Sent: Friday, April 13, 2007 10:03 AM
> To: Bill Rose; bobsheridan at earthlink.net; randy-bezanson at uiowa.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: shouldRE: Ther North Carolina (Duke lacrosse) case/ 
> OfflinePlease
>
> During the stages of the initial investigation, yes. In gathering  
> evidence, interviewing witnesses, taking initial witness  
> statements, etc. And I would not phrase it as "acting as an agent  
> of the police force."  The prosecutor and the police simply are  
> engaged in the same process until a) there is some probable and b)  
> some aspect of the judicial proceedings begins (such as seeking  
> arrest warrants). If their focus is going to be what happened early  
> on, they can get around prosecutorial immunity.
>
>
>
>
>
> Howard M. Wasserman
> Associate Professor of Law, FIU College of Law
> University Park, DB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasserman at fiu.edu
> SSRN Author Page: http://papers.ssrn.com/sol3/results.cfm
> Contributor, Sports Law Blog: http://sports-law.blogspot.com/
>
> ----- Original Message -----
>
> From: "Bill Rose" <wrose at albion.edu>
>
> To: <bobsheridan at earthlink.net>; <randy-bezanson at uiowa.edu>
>
> Cc: <conlawprof at lists.ucla.edu>
>
> Sent: Friday, April 13, 2007 12:57 PM
>
> Subject: Re: shouldRE: Ther North Carolina (Duke lacrosse) case/ 
> Offline Please
>
>
>
> This is an area I know nothing about, so I can't offer anything  
> beyond another question.  I watched an interview with the defense  
> attorney for one of the lacrosse players.  When asked about the  
> possibility of a suit against the prosecutor - and whether such a  
> suit would be barred by prosecutorial immunity - the defense  
> attorney sought to distinguish Nifong's actions.  That is, he said  
> that Nifong had acted 'as if' he were an agent of the Durham police  
> force during the investigation and that *those actions* would not  
> be protected under a claim of prosecutorial immunity.  My question:  
> is this really the case?
>
>
>
> William Rose
> Associate Professor of Political Science and
> Director of the Law, Justice, & Society Concentration
> Albion College
> Albion, Michigan  49224
> >>> Robert Sheridan <bobsheridan at earthlink.net> 04/13/07 11:37 AM >>>
> Off the cuff, I believe that the state of the law is that
> prosecutorial immunity is absolute so long as what the prosecutor
> does is regarded strictly as prosecuting, but is qualified or lost to
> the extent that the prosecutor steps outside of prosecuting, such as
> by making defamatory statements to the press that are apart from the
> decision to prosecute or the legitimate courtroom functions of
> advancing the case.  The hard part is in determining whether an
> action is 'prosecutorial' or 'something-other-than-legitimate-
> prosecution.'  If recollection serves, a prosecutor who put on the
> hat of an investigator and then committed some harmful misdeed, was
> permitted to be sued, on the ground that absolute immunity had been
> converted into qualified or none.  As I said, 'off-the-cuff.'
>
> In Nifong's case, there's the decision to prosecute, however ill-
> advised (isn't he entitled to believe a complainant, however
> foolishly?) which is probably protected, and there's whatever else he
> did in front of the cameras to make it look good, which may not be,
> and this raises another question.  Good defense attorneys defend in
> the court of public opinion, as the climate of that can influence the
> outcome of the case in a lot of ways, including untainting the jury
> pool from the effects of prosecutors like Nifong.  Prosecutors are
> supposed to put up in court and shut up outside of court to avoid
> tainting the jury pool.
>
> Bad prosecutors create good defense attorneys.
>
> rs
> sfls
>
> On Apr 13, 2007, at 6:29 AM, Bezanson, Randall P wrote:
>
> > I know that Prof. Holden's message asked for off line responses,
> > but the topic of the Duke cases raises two questions about which I
> > know little, but would be interested in others' informed views.
> > First, is prosecutorial immunity absolute, and second, if not, what
> > would have to be proven to override it should the boys' families
> > wish to sue to recover their substantial costs of defense over the
> > past year?
> >
> > Randy Bezanson
> > University of Iowa Law School
> >
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of matthewhpolsci at aol.com
> > Sent: Thursday, April 12, 2007 8:44 PM
> > To: lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
> > Subject: Ther North Carolina (Duke lacrosse) case /Offline Please
> >
> > The North Carolina case and the way the local prosecutor handled it
> > is sure to produce a lot of discussion about policy and procedural
> > changes to constrain prosecutorial discretion.
> >
> > I am interested in the whole subject that I sometimes call "the
> > politics of prosecution," and have been following aspects of it for
> > some years.  If there are colleagues who have work of their own
> > that they want to mention, or ideas they want to share, offline, I
> > would be interested.
> >
> > I will treat anything with whatever degree of restraint others may
> > wish, but I am personally not ready for protracted on-line
> > discussions.  In any case, my experience tells me that most
> > colleagues are expert in, and interested in, judicial decision-
> > making, rather than in pre-judicial decision-making.
> >
> > Sincerely yours,
> >
> >
> >
> > Matthew Holden, Jr.
> > Henry L. and Grace M. Doherty Professor Emeritus of Politics,
> > University of Virginia
> >
> > DIRECT MAILING ADDRESS
> > P. O. Box 12588
> > LeFleur Station
> > Jackson, MS 39236-2588
> >
> > Phone: 601-952-0596
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> > free from AOL at AOL.com.
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>
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