Sunday, April 18, 2010

Legal basis behind attack on Cooper April 11, 2007 “Innocent Promulgation”

When Attorney General Roy Cooper dismissed all the charges against the three Duke Lacrosse defendants on April 11, 2007, he did something outside his scope of legal authority… in an unprecedented move, he pronounced the three Duke Lacrosse defendants “innocent.” The biased mainstream media was quick to jump and embrace this proclamation by the A.G. as being legally binding and valid. The defendants were often referred to in the media as “innocent,” or “exonerated,” or “cleared of the charges.” However, as I have been complaining for some time, the statement of “innocent” made by Attorney General Cooper has no legal weight, and the statements by the media using “innocent” etc, are totally incorrect and misleadingly false.

On February 22, 2010, I sent an e-mail to Professor Anthony Baker of Campbell University School of law, in which I made the following three observations and asked for him to comment on them:


(1) The North Carolina Attorney General does not have the legal authority to determine, declare, or make a pronouncement as to whether or not a criminal defendant is “innocent,” “not guilty,” and/or “guilty.”
(2) The North Carolina Attorney General’s Office, when taking over criminal prosecution in a role as special prosecutor, is charged with either proceeding with the prosecution or dismissing the charges. Conferring “guilt,” “non-guilt,” or “innocence” is not his mandate and is not within his province.
(3) The media is legally and technically incorrect whenever it makes references to the guilt, non-guilt, or innocence of a defendant based upon a determination, statement, or position of an attorney general in the state of North Carolina.


In an e-mail reply to me dated that same day, Professor Baker made the following statement, “As for your three statements, as worded I agree with them all. The A.G. presents a case but does not sit as ‘trier of fact’ -- or ultimate adjudicator -- of it. That is the sole province of the jury, or a judge sitting in lieu of a jury.”

I am sorry for the delay in responding, but I have been recently attending events (John Hope Franklin Conference “From Slavery to Freedom to the White House” held at Duke Law School on April 8th through 10th, and the interview at Duke Law School open to the public featuring U.S. Supreme Court Justice Stephen Breyer on April 14th). And after the latter event which had me being expelled from the Duke University campus and nearly arrested, I have been busy dealing with that situation, as well. Plus, I am trying to complete Episode V of the comic strip, which is slowly but surely progressing.

Anyway, those in opposition to my position (which I have backed up with the aforementioned contents of the e-mail from a law school professor and scholar Anthony Baker) have yet to offer a statement from a person with a credible legal background to argue to the contrary. Coffin v. United States, 156 U.S. 432 (1895) says nothing about a state’s attorney general being given the legal authority to pronounce a defendant “innocent,” “not guilty,” or “guilty,” and is therefore without relevance.

Good luck in trying to find someone to make such a statement and allow you to quote him/her, because for someone to do so would definitely expose them as being the ones who truly do not understand the law.

17 comments:

Whatchoo talkin' 'bout, Sidney? said...

Much ado about nothing, Sidney.

While you whine about the AG's & SP's use of the word 'innocent', you ignore the fact that the AG stated that they found 'additional affirmative evidence that these crimes did not occur'. Not just that there was insufficient evidence to indicate that the falsely accused committed the falsely alleged crimes, but that there was affirmative evidence to the contrary.

The AG's report simply said what honest people (that excludes you and your ilk, Sidney) knew all along - that no crime had occurred, and that the players were innocent of the charges.

Just sticks in your craw, doesn't it?

Number 89 said...

I thought the AG's report was a pretty good fund raising tool.

Whatchoo talkin' 'bout, Sidney? said...

Number 89 -I thought the AG's report was a pretty good fund raising tool.

Do you rreally think he needed one >18 months before the election? The election he won with 61% of the vote?

Was Cooper ever in danger of losing his office?

Number 89 said...

Perhaps Roy's 1.3 million raised was a factor in that 61% of the vote. Nobody knew at that time how strong the Democratic turnout would be.


The fact that he out-raised his opponent by over 219,000 might have had an impact as well.


Cooper was not hesitant to trumpet his "heroic" innocent declaration.

Nifong Supporter said...

To Number 89:

I believe that your premise is accurate. There was a definite spike, especially in out of state contributions to his campaign after is "Innocent Promulgation."

Thank you for your comments.

Nifong Supporter said...

To Whatchoo talkin' 'bout, Sidney?:

Whatchoo said:
"The AG's report simply said what honest people (that excludes you and your ilk, Sidney) knew all along - that no crime had occurred, and that the players were innocent of the charges."


Defense attorney Joseph B. Cheshire V's underling Brad Bannon told the Assistant Jr. Deputy Attorney Generals Coman and Winstead to have the Attorney General say that "nothing happened." All the people are suppose to believe that almost all of the Duke Lacrosse players (nearly a third of whom had alcohol related charges, and charges of disorderly conduct and urinating in public) attended a beer-guzzling and stripper party and nothing happened. A group whose history of raucous party antics forced the school president to demand the coach to rein them in... and we're supposed to believe that nothing happened?

Whatchoo talkin' 'bout, Sidney? said...

Sidney - and we're supposed to believe that nothing happened?

Yes, Sidney.

No evidence that a crime even occurred, and 'additional affirmative evidence that these crimes did not occur'.

Crystal was, as is, a seriously troubled person. And a lying prostitute.

Michael said...

“As for your three statements, as worded I agree with them all. The A.G. presents a case but does not sit as ‘trier of fact’ -- or ultimate adjudicator -- of it. That is the sole province of the jury, or a judge sitting in lieu of a jury.”

The second sentence is correct. No one of your critics has said anything to the contrary.

As to the first sentence, we have no reason to believe that Prof. Baker is being anything but charitable given your clear lack of knowledge of the subject. No one with legal training would refer to the conferring of "non-guilt" or "innocence." That is the reason that Prof. baker rephrased your statements to reference the difference between a prosecutor and a "trier of fact." Findings of a judge or jury are limited to "guilty" or "not guilty." A "not-guilty" verdict means simply that the charges were not proven.

"Innocence," on the other hand, is the legal state that all potential criminal defendants are in unless proven "guilty" before a "trier of fact." Legally, no one has to "confer innocence." It is the natural state of all citizens, and clearly was the state of the three lacrosse defendants on the date the charges were dropped. No law professor could reasonably opine otherwise.

Of course, you are not the first non-lawyer to suggest that criminal defendants have to prove themselves innocent, and absent a trial they'll always be guilty (or at least suspect). But again, no law professor opining on law in the 50 United States would suggest this is true.

Of course, AG Cooper was not simply saying that the three defendants retained their state of "innocence" as a result of having the charges dropped. He was also saying that, based on his investigation, no crime occurred. Are you trying to suggest that Prof. Baker believes that prosecutors lack the legal authority to determine whether an alleged crime has actually occurred? If so, then you need to send him another e-mail.

Number 89 said...

It is interesting that the amazingly heroic declaration of innocence is so applauded and the audacity of it praised, yet when faced with the challenge if it is or not actually something the AG has the authority to do, everyone says move along, just a normal part of the job.

Michael said...

As the chief law enforcement officer for the State, the Attorney General DOES have the authority to dismiss charges and in the course of dismissing the charges provide the public findings of his investigation, including findings relating to whether a crime actually occurred.

In the US, if the chief prosecutor with jurisdiction determines that, based on his investigation, an alleged crime did not occur, then the suspects are by definition legally "innocent."

guiowen said...

I realize I'm no lawyer, but let's see if I can shed some light on this.
There is in the United States a principle of "no double jeopardy" which is enshrined in the Constitution, specifically in the Fifth Amendment. According to this, no one can be tried twice for the same crime. Thus if Mr. A, accused of a certain murder, is tried and acquitted, it is legally impossible to try him again for that same murder, even if all sorts of evidence against him suddenly surfaces after his acquittal. Even if there appears some absolute proof (say, a video tape showing Mr. A cutting off the victim's head), he is legally untouchable.
On the other hand, suppose that prior to the trial, someone in authority, say the Attorney General, were to look at the evidence and conclude that it was not enough for a trial. In that case, Mr. A would be set free, but, assuming again that some additional evidence were found against him, he could certainly be tried.
Thus, the Attorney General's declaration of "innocence" is not nearly as strong as acquittal after a jury trial. In the latter case, the accused has become immune to further prosecution; in the former, he can still certainly be tried.
In this sense, Cooper's declaration of "innocence" for the three indicted players is not nearly as strong as acquittal. If further evidence were to be found, such as (for example) a video showing one of the three holding CGM while the other two repeatedly penetrated her, the case could be reopened, and they could be tried. As it happens, we all know that no such evidence is going to be unearthed. Thus the fact that Cooper's declaration of innocence is not as strong as an acquittal, will really have no effect.

Nifong Supporter said...

To Michael:
Michael said...
"As the chief law enforcement officer for the State, the Attorney General DOES have the authority to dismiss charges and in the course of dismissing the charges provide the public findings of his investigation, including findings relating to whether a crime actually occurred."


The attorney general, the district attorney, and any prosecutor has the right to dismiss charges, which is what A.G. Cooper did on April 11, 2007. I have no problem with that. But to parrot what Joe Cheshire's underling Brad Bannon told him to say does not mean that a crime did not take place. Furthermore, as I have documented with e-mail statements by a law school professor, the attorney general does not have the authorization or legal right to claim "innocence" or exonerate. The mainstream media is irresponsible in giving credence to Cooper's April 11, 2007 "Innocent Promulgation."

Nifong Supporter said...

To guiowen:

Your double jeopardy approach to this issue is unique, and I think it does give some validity to the lack of legal weight supporting Cooper's "innocent promulgation." What I find most distressing is that the media has embraced it as being legally binding, and describes the Duke Lacrosse defendants as being "exonerated," "cleared," and "found innocent." This is what is misleading.

Thanks for your interesting slant on the issue.

guiowen said...

You know, Sidney, I still don't agree with you about Nifong. Nonetheless, I think you and I could get along quite well.

Michael said...

Sidney, the intellectual dishonesty of your approach is starkly clear from your penultimate post above. On the one hand, you admit that Cooper could drop the charges, and nowhere do you challenge the concept that individuals who have not been tried or found guilty are legally "innocent" (cf. Coffin v. United States, 156 U.S. 432 (1895)). Your quote from Prof. Baker says nothing about this.

However, you then claim that Cooper had no right to say the word "innocent," AND, you conclude that there was some conspiracy between the defense and Cooper that produced this result, when your only proof of this theory is the statement by one member of the defense team that, understandably, he wanted more from the investigation than simply "we don't have enough evidence to prove the allegations beyond a reasonable doubt." HECK YES! Cooper didn't have ANY evidence that a crime even occurred.

"But to parrot what Joe Cheshire's underling Brad Bannon told him to say does not mean that a crime did not take place." He found NOTHING, Sid. NOTHING! Finding no evidence where evidence would have to exist under the alleged facts, to people of logic, means "a crime did not take place."

Stop dancing around the issue and give us your theory of how one of the alleged rapists ejaculated in the accuser's mouth, she spit it on the floor, and magically no DNA from the alleged rapist was found in her mouth, and no commingled DNA from the accuser and the alleged rapist was found on the floor.

Until you can do that, stop accusing the press, the defense, Cooper or any one else of being ignorant or dishonest. The plank is in your eye, Sid. Take it out and then, just maybe, you can have the moral authority to pick at the sliver in your neighbor's eye (if there is any).

Nifong Supporter said...

To Michael:

I will plan on responding in full to your comment in a future blog. However, I am more concerned about the media's embracing the "Innocent Promulgation" than Cooper's making the statement. To refer to the defendants as "exonerated" is totally incorrect. Greg Taylor was "exonerated"!!! Not the Duke Lacrosse defendants!

Michael said...

Sid,

I sincerely doubt that you will ever address the DNA issue in an honest way. You've been asked to explain the absence of DNA repeatedly over the last several months by a number of posters on this site, and your response is always "forthcoming."

I'm not holding my breath.