When I was a child, my mother and father used to say to me: "There's always more than one side to the story." I have remembered that saying a lot in the last few weeks. First there was the UVA rape story that was woefully one sided in its presentation by the Rolling Stone. That story has since collapsed. I won't go into that in detail in this post.
Now, the December 5, "peaceful protest" story in Durham is coming unraveled. Right after the "peaceful protest" several people took to facebook and at least a couple of preacher took to their pulpits to excoriate the Durham Police Department's handling of that so called "peaceful protest." They would have drawn the disdain of my parents. I, frankly, am ashamed that I did not call my own preacher to task for her sermon that blamed police for the violence at the "peaceful protest."
WNCN our local NBC affiliate is reporting that the protest was far from peaceful. According to the WNCN report, DPD was expecting a large protest that might turn violent on Friday December 5. They based that conclusion on social media postings threatening violence. A reasonable conclusion, I might add. According to DPD and the City Manager, the protest began at CCB Plaza and moved toward the Durham County Jail. Once at the jail, fireworks were launched at the jail into the air and paint was thrown on the street. Things went downhill from there. Ultimately, 31 people were arrested by 120 police officers. It seems that those who were claiming a totally peaceful protest were, at the least, uninformed. They failed to get both sides of the story. And in doing so they presented a version that was far - far from the complete truth.
Walt-in-Durham
Wednesday, December 17, 2014
Wednesday, December 10, 2014
More on rape and false accusations.
Lena Dunham has decided to respond to the criticism of her book: Not that kind of girl. The book makes two allegations about Ms. Dunham being raped. Most of the criticism has been directed at those two sections of the book. They are the most provocative. In her response to critics, Ms. Dunham says: "When I finally decided to share my story, it had ambiguities and gray areas, because that’s what I experienced, because that’s what so many of us have experienced. As indicated in the beginning of the book, I made the choice to keep certain identities private, changing names and some descriptive details. " Unfortunately, Ms. Dunham and her publisher did not make clear when she was using pseudonyms and when she was not. That lack of clarity lead to someone who had never had any contact with Ms. Dunham being identified as her rapist. After all, the real Barry was a well known conservative around Oberlin College when Ms. Dunham was there. She should never have been so sloppy as to not tell us when she was using a pseudonym.
Thankfully, Ms. Dunham has now clarified the situation. She wrote: "To be very clear, “Barry” is a pseudonym, not the name of the man who assaulted me, and any resemblance to a person with this name is an unfortunate and surreal coincidence. I am sorry about all he has experienced." She should be sorry. Her trauma is no excuse for inflicting trauma against an innocent person completely un-involved in her experience. Her conduct was and is unacceptable. Her apology is a good first step. But, now she must atone and more importantly, she must never ever do this again.
Walt-in-Durham
Thankfully, Ms. Dunham has now clarified the situation. She wrote: "To be very clear, “Barry” is a pseudonym, not the name of the man who assaulted me, and any resemblance to a person with this name is an unfortunate and surreal coincidence. I am sorry about all he has experienced." She should be sorry. Her trauma is no excuse for inflicting trauma against an innocent person completely un-involved in her experience. Her conduct was and is unacceptable. Her apology is a good first step. But, now she must atone and more importantly, she must never ever do this again.
Walt-in-Durham
Monday, December 8, 2014
Mangum appeal briefs are filed.
Readers may recall that on the night of April 2-3 2011, Crystal Gail Mangum stabbed the man she was living with. A few days later, Reginald Daye passed from this life as a result of Crystal's stab wound. She was indicted in April 2011 and after many machinations, went to trial in Superior Court on November 12, 2013. Trial lasted several days and a guilty verdict was finally returned on November 22, 2013. Judge Ridgeway sentenced Crystal to a term of not less than 170 months to not more than 216 months in the custody of the North Carolina Department of Corrections. Readers may also recall that it was Crystal Gail Mangum who falsely accused three men of a rape that never took place. Readers may also recall that Crystal Gail Mangum assaulted her previous live in boyfriend and set fire to his clothes and shoes.
After her conviction, Crystal filed the Record and her Brief with the N. C. Court of Appeals. In her brief, Crystal raises only one issue: WHETHER ADMISSION OF EVIDENCE THAT DEFENDANT CRYSTAL MANGUM ALLEGEDLY ATTEMPTED TO ASSAULT MILTON WALKER IN FEBRUARY 2010 WAS ERROR WHEN IT HAD NO PROBATIVE VALUE TO PROVE ANY
MATERIAL FACT OTHER THAN THE DEFENDANT'S BAD CHARACTER?
Much has been made by Sid Harr at the Justice4Nifong blog about defense counsel's date errors. In fact, Sid missed more errors of counsel when it comes to dates. For example, defense counsel alleges Crystal was indicted on March 18, 2011. Three weeks before the stabbing took place on the night of April 2-3 2011. After reading the defense brief, I must conclude that the drafter was none too careful with dates. None of these issues are fatal to the brief, they just go to a lack of careful drafting. All in all, the state's recitation of the facts in its Brief is more accurate.
The defense raised one issue and one only, that is the prior bad acts admitted under rule 404(b). Hereafter, I will refer to this as the 404(b) evidence. Specifically the defense complained about Milton Walker's testimony about Crystal's threat to harm him with a knife on the night she burned some of his clothes and shoes. Walker's testimony is particularly damaging as it shows a violent temper and a eerie similarity to what she did to Daye. There is no doubt this is why the state offered Walker's testimony. Walker, despite Crystal's attitude toward him, considers himself a friend and did not want to testify. None the less, Walker was compelled to do so and he gave some damning testimony. Testimony that was, for the most part, backed up by a couple of Durham police officers.
In her argument, Crystal's lawyer is really at her best. She does a good job of highlighting why 404(b) evidence is so difficult for a defendant. More importantly, Crystal's lawyer does a good job of hitting all the limits to 404(b) admissibility. What she does not do is argue to overturn the precedents that allow so much 404(b) evidence into the record in North Carolina. Frankly, this is not the best set of facts to make that argument. The state, as expected, did a good job of countering the argument. After all, the state has the weight of precedent on its side. The one thing going for Crystal is the Court of Appeals review de novo 404(b) rulings by a trial court. De novo is a latin phrase that literally means from the beginning. In law, we understand it to mean the Court reviews this ruling as if the court below had never ruled at all. However, that does not end the 404(b) analysis.
Once the trail court, and the Court of Appeals determine if 404(b) evidence is admissible, then the court must turn to a Rule 403 analysis. Rule 403, in short, says that a court may not admit evidence even if otherwise admissible, if its probative value is outweighed by the prejudice it is likely to cause. However, Rule 403 review is not de novo, but for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). As you can see, this rule is from the N.C. Supreme Court. Thus it cannot be overturned by the Court of Appeals, or even disregarded. The COA has to follow the Supreme Court's precedent. In an abuse of discretion analysis, the trial court will be affirmed if it has a reasonable basis for the ruling, any reasonable basis. I doubt the COA is going to overturn Judge Ridgeway on this issue.
Don't pay attention to Sid's effort to misdirect your attention. He claims that somehow Duke University had something to do with Daye's death. Crystal does not make that argument. the only argument she makes regards the 404(b) evidence. Sid is just attempting to keep his tiny band of followers distracted from what is really going on. A band that is both easily distracted and wants the distraction.
Of final note, Crystal does not raise any error regarding self-defense or her demonstrative evidence of the door which goes a long way toward the self-defense angle. It appears that she is pinning her whole hopes on 404(b). That's her strongest argument. Unfortunately, by not challenging the self-defense conviction as being unsupported by sufficient evidence, Crystal openly invites the court to engage in a harmless error analysis. That is exactly the opening the state jumped at in the later stages if their brief. Even if the COA is inclined to give her some relief on the 404(b) issue, they will most likely rule it harmless error.
Walt
After her conviction, Crystal filed the Record and her Brief with the N. C. Court of Appeals. In her brief, Crystal raises only one issue: WHETHER ADMISSION OF EVIDENCE THAT DEFENDANT CRYSTAL MANGUM ALLEGEDLY ATTEMPTED TO ASSAULT MILTON WALKER IN FEBRUARY 2010 WAS ERROR WHEN IT HAD NO PROBATIVE VALUE TO PROVE ANY
MATERIAL FACT OTHER THAN THE DEFENDANT'S BAD CHARACTER?
Much has been made by Sid Harr at the Justice4Nifong blog about defense counsel's date errors. In fact, Sid missed more errors of counsel when it comes to dates. For example, defense counsel alleges Crystal was indicted on March 18, 2011. Three weeks before the stabbing took place on the night of April 2-3 2011. After reading the defense brief, I must conclude that the drafter was none too careful with dates. None of these issues are fatal to the brief, they just go to a lack of careful drafting. All in all, the state's recitation of the facts in its Brief is more accurate.
The defense raised one issue and one only, that is the prior bad acts admitted under rule 404(b). Hereafter, I will refer to this as the 404(b) evidence. Specifically the defense complained about Milton Walker's testimony about Crystal's threat to harm him with a knife on the night she burned some of his clothes and shoes. Walker's testimony is particularly damaging as it shows a violent temper and a eerie similarity to what she did to Daye. There is no doubt this is why the state offered Walker's testimony. Walker, despite Crystal's attitude toward him, considers himself a friend and did not want to testify. None the less, Walker was compelled to do so and he gave some damning testimony. Testimony that was, for the most part, backed up by a couple of Durham police officers.
In her argument, Crystal's lawyer is really at her best. She does a good job of highlighting why 404(b) evidence is so difficult for a defendant. More importantly, Crystal's lawyer does a good job of hitting all the limits to 404(b) admissibility. What she does not do is argue to overturn the precedents that allow so much 404(b) evidence into the record in North Carolina. Frankly, this is not the best set of facts to make that argument. The state, as expected, did a good job of countering the argument. After all, the state has the weight of precedent on its side. The one thing going for Crystal is the Court of Appeals review de novo 404(b) rulings by a trial court. De novo is a latin phrase that literally means from the beginning. In law, we understand it to mean the Court reviews this ruling as if the court below had never ruled at all. However, that does not end the 404(b) analysis.
Once the trail court, and the Court of Appeals determine if 404(b) evidence is admissible, then the court must turn to a Rule 403 analysis. Rule 403, in short, says that a court may not admit evidence even if otherwise admissible, if its probative value is outweighed by the prejudice it is likely to cause. However, Rule 403 review is not de novo, but for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). As you can see, this rule is from the N.C. Supreme Court. Thus it cannot be overturned by the Court of Appeals, or even disregarded. The COA has to follow the Supreme Court's precedent. In an abuse of discretion analysis, the trial court will be affirmed if it has a reasonable basis for the ruling, any reasonable basis. I doubt the COA is going to overturn Judge Ridgeway on this issue.
Don't pay attention to Sid's effort to misdirect your attention. He claims that somehow Duke University had something to do with Daye's death. Crystal does not make that argument. the only argument she makes regards the 404(b) evidence. Sid is just attempting to keep his tiny band of followers distracted from what is really going on. A band that is both easily distracted and wants the distraction.
Of final note, Crystal does not raise any error regarding self-defense or her demonstrative evidence of the door which goes a long way toward the self-defense angle. It appears that she is pinning her whole hopes on 404(b). That's her strongest argument. Unfortunately, by not challenging the self-defense conviction as being unsupported by sufficient evidence, Crystal openly invites the court to engage in a harmless error analysis. That is exactly the opening the state jumped at in the later stages if their brief. Even if the COA is inclined to give her some relief on the 404(b) issue, they will most likely rule it harmless error.
Walt
Monday, December 1, 2014
Police misconduct.
Food for thought. I spent the weekend with my family and the question of Michael Brown came up. As the only lawyer in the group, several people asked me what I thought. I have posted elsewhere that I thought the Grand Jury did a good job over going over the record and making a decision. I have also posted that I do not think the DA had a conflict of interest as we understand it within the Rules of Professional Conduct.
However, Michael Bell, a retired USAF Lt. Colonel writing in Politico raises a very good point about police and prosecutors investigating themselves. Wisconsin has a law, thanks in part to Michael Bell, that calls for an outside investigation of police shootings. Lance the intern wrote at Justice4Nifong about his concerns about the prosecutor's perceived conflict of interest. While I still think the prosecutor had no conflict as it is recognized by the Rules of Professional Conduct. Lance and Michael Bell have very good points. What we really need, not just if Ferguson, but in the country as a whole is a system of holding police accountable. At the very least that means we need an independent review of police involved shootings.
I would go farther though. The Duke lacrosse fiasco shows the need for an effective system of outside review of police actions. In the fiasco, the State Bar of North Carolina provided an outside review of Nifong's disreputable prosecution. But, there was nothing like that for the Durham Police Department. The innocent men wrongly accused filed a civil lawsuit seeking an outside overseer for the DPD. The city fought that notion tooth and nail, ultimately prevailing on procedural grounds. In NC, we have been the victim of too many cases of police and prosecutorial malfeasance. Allen Gell, Darryl Hunt and Eric Daniels come to mind immediately. But, there sadly others. An outside review board in these cases would have saved us a lot of grief. These cases have cost taxpayers around NC millions of dollars that could have been put to productive use. If prosecutors and police knew that they were accountable, we would not have had to put up with these fiascoes. Nor would the innocent men involved had to be charged, and in some cases imprisoned for crimes they did not commit. Yet in no case has any police officer been disciplined. Not one!
I do not think that good police officers would oppose such a board. They want to do a good job. Good police officers do not want to be sullied by false prosecutions. Most of all, they do not want to be associated with unaccountable killers.
I do not know that an independent review of the Brown case would have reached a different outcome. As I wrote earlier, the Grand Jury did a thorough job and it looks like a good "No Bill" was returned. However, if the Ferguson Police knew that every police shooting would be referred to an ouside agency and the department as well as the officer would be subject to accountability, perhaps Officer Wilson would have not shot in the first place.
Walt-in-Durham
However, Michael Bell, a retired USAF Lt. Colonel writing in Politico raises a very good point about police and prosecutors investigating themselves. Wisconsin has a law, thanks in part to Michael Bell, that calls for an outside investigation of police shootings. Lance the intern wrote at Justice4Nifong about his concerns about the prosecutor's perceived conflict of interest. While I still think the prosecutor had no conflict as it is recognized by the Rules of Professional Conduct. Lance and Michael Bell have very good points. What we really need, not just if Ferguson, but in the country as a whole is a system of holding police accountable. At the very least that means we need an independent review of police involved shootings.
I would go farther though. The Duke lacrosse fiasco shows the need for an effective system of outside review of police actions. In the fiasco, the State Bar of North Carolina provided an outside review of Nifong's disreputable prosecution. But, there was nothing like that for the Durham Police Department. The innocent men wrongly accused filed a civil lawsuit seeking an outside overseer for the DPD. The city fought that notion tooth and nail, ultimately prevailing on procedural grounds. In NC, we have been the victim of too many cases of police and prosecutorial malfeasance. Allen Gell, Darryl Hunt and Eric Daniels come to mind immediately. But, there sadly others. An outside review board in these cases would have saved us a lot of grief. These cases have cost taxpayers around NC millions of dollars that could have been put to productive use. If prosecutors and police knew that they were accountable, we would not have had to put up with these fiascoes. Nor would the innocent men involved had to be charged, and in some cases imprisoned for crimes they did not commit. Yet in no case has any police officer been disciplined. Not one!
I do not think that good police officers would oppose such a board. They want to do a good job. Good police officers do not want to be sullied by false prosecutions. Most of all, they do not want to be associated with unaccountable killers.
I do not know that an independent review of the Brown case would have reached a different outcome. As I wrote earlier, the Grand Jury did a thorough job and it looks like a good "No Bill" was returned. However, if the Ferguson Police knew that every police shooting would be referred to an ouside agency and the department as well as the officer would be subject to accountability, perhaps Officer Wilson would have not shot in the first place.
Walt-in-Durham
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