Supreme Court Trawl

The final Monday in June has come and gone for the U.S. Supreme Court and we still are waiting for the two biggest decisions of the 2005-2006 term-- on congressional redistricting and the rights of detainees at Guantanamo Bay. But the Justices did manage both to wrap up some key cases on their docket and to schedule a real doozy for next term.

The most important move by the Justices Monday was to accept for review a case for next term that will evaluate the Bush Administration's efforts, or lack thereof, in reducing greenhouse gas emissions that contribute to global warming. The case is about the Clean Air Act, and the Environmental Protection Agency, and whether the White House has a legal duty to enforce certain regulations. The case is likely to come down to what the true definition of "pollution" is under the law. The White House says that carbon dioxide is not the kind of pollution that must be restricted under the Clean Air Act and even if it were the feds would not be required to limit it. The environmentalists say it is precisely the sort of pollution the law was intended to limit. You are going to hear an awful lot about this case between now and next June, when it likely will be resolved.

The Justices also on Monday struck down a valiant effort by Vermont legislators to take some of the money out of political campaigns. Although the Justices were all over the map on the implications of the case, a majority agreed that the first amendment's right to associate and "speak" (through the payment of money) precluded states from restricting both campaign funding and campaign spending. Someday some legislators somewhere will come up with a magic formula that both addresses the excess of campaign finance and comports with the first amendment. Until then, we are going to see the the Court, term after term, sadly slapping down these sorts of efforts.

The Court on Monday also gave a boost to supporters of capital punishment, issuing a ruling in a Kansas case that declares that a "tie" in a case (where the evidence of aggravating and mitigating factors is equal) can by law always go to the prosecutor and result in a capital case. Death penalty opponents had argued that a "tie" in such situations should always go to the defendant.

So now we wait, until Wednesday, for the top-shelf decisions to trickle down from on high.

By Andrew Cohen |  June 26, 2006; 2:45 PM ET
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Please email us to report offensive comments.

Your column about the Duke lacrosse case is nonsense. The media participated in and precipitated a massive rush to judgment when the allegations were initially aired. Now that contrary evidence is emerging, the same outlets not only should but must report that evidence (including, for example, the fact that the alleged victim's companion that night first described the rape allegations as "a crock," and the fact that at least one of the accused can account for all but about 4 minutes of his time that night with credit card and cell phone records). Get a grip.

Posted by: Publius | June 27, 2006 12:24 AM

Fascinating that the legal fraud Andrew Cohen doesn't even have the courage to post his Lacrosse column on his blog.

If he does, he will find that it's a lot more than the friends and families of the accused who think this case is a complete crock.

And not based on defense lawyers spin but based on public documents and the words of the DA and his staff.

-Including 3 fraulent photo lineups (designed by Nifong) that violate _every_ principle in the DPD guidelines (derived from the Actual Innocence work)

-Including witness intimidation by Nifong and DPD (while the daughter of the Durham chief of police flaunts the law).

-Including police reports that documents endless variations in the story told by the accuser

Like you, Mr Cohen, I am a liberal as well, but not the kind who tailors the facts to fit his ideology.

Likely saying that the accuser is "irresponsible" if she is lying and not a criminal.

How nice of you to be so forgiving, Mr Cohen. You're not the one having your life wrecked.

Your column is pure sour grapes, from one of the most bigoted and less insightful legal commentators.

Go sell your garbage to the brain dead choir, Mr Cohen, you'll find no takers among people with an independent mind and an interest in justice.

Posted by: What a crock | June 27, 2006 12:48 AM

Andrew Cohen wrote about the Duke lacrosse travesty: "We...haven't had the privilege of seeing the case unfold at trial the way it is supposed to."


I thought in this country a prosecutor has to have a reasonable chance of conviction to take a criminal case to trial. Here, on the surface, the case seems to involve a questionable accuser, a rubber-stamp grand jury, a DA who was facing election, and a racially-charged jury pool.

If Mr. Cohen is arguing that DA Mike Nifong might have compelling evidence that hasn't made it into the public arena, fine.

But is Andrew Cohen also going to be honorable enough to take the flip side of this and say that if what has been reported is pretty much all there is to the case, then DA Nifong should be sanctioned?

Posted by: MCA | June 27, 2006 06:22 AM

So, Newsweek was NOT relying on biased accounts when it printed the story "Sex, Lies, and Duke," which emphasized the DA's "hints" of a date rape drug (when he now apparently admits there is no toxicology evidence) and the opinion of Kim Roberts that, even though she didn't think so at the time, she now thought a rape probably occurred (after she had gotten accommodation from the DA's office on bail on a probation violation, and after she had sought PR help to "spin" the situation), but it IS relying too much on biased accounts to report the views of defense attorneys and family members of the accused? Hmmm.
On a side point, "lawyers lie to journalists all the time in the zealous representation of their clients"? Please. Leaving aside the obvious bias in such an overbroad statement, anyone who has ever had their remarks twisted, quoted out of context, or selectively edited by a journalist who wants to make them fit a pre-decided story angle might wonder whether journalists are in a position to point the finger at another profession for its shaky relationship to the truth.

Posted by: MCF | June 27, 2006 09:54 AM

"Likewise, the endless interviews with friends and family members of the accused are equally biased and have long become pointless. Of course, the parents of an accused young person are going to rise to his or her defense. Of course, friends and family are going to vouch for his or her integrity and raise questions about the evidence and the prosecutor's motives. We see it all the time in criminal cases, all over the country, only usually no one pays attention. Why? I suspect race and money and access to the media have a lot to do with it. I have often wondered how media coverage might be different -- how the cynical, skeptical skew would turn -- if the alleged victim in the case were white and the alleged defendants black."

An interesting perspective and valid argument that many often fail to see

Posted by: dc | June 27, 2006 11:49 AM

Like the other posters, I can't believe Mr. Cohen did not allow comments on his Duke Lacrosse column.

When a prosecutor makes public statements that later turn out to be false, I think we should look more favorably on the defendants.

When witnesses who speak out in favor of the defendants are intimidated by the prosecutor, I have a problem.

Given the large amount of false information that the prosecutor has given out in this case, it is only fair for all of us to insist that he now tell us the one nugget of truth that allows this travesty to go on.

I can't imagine that these players are guilty, but even if they are, the prosecutor has engaged in misconduct and should be removed from the case. A new prosecutor should either drop the case or bring it to trial at once.

Mr. Cohen, when this case started, virtually everone gave the prosecutor and the alleged victim the benefit of the doubt. It was only after layer after layer of lies and misconduct were revealed that we realized that all this case is is Prosecutor Ahab in search of the "great white defendant" and black votes for re-election.

Regardless of anyone's guilt or innocence, we all should be able to agree that Mike Nifong is an absolute scumbag who should be disbaarred.

Posted by: Rebelyell | June 27, 2006 11:50 AM

I thought the point of the article was in the following paragraph:

"For years, I have railed against prosecutors and the police for taking advantage of their official stations to leak information about defendants. For years, I have considered the media a co-conspirator in the government's efforts to influence pretrial publicly. And now that the co-conspirator has moved to the defense side, I find the practice just as deplorable. The presiding judge long ago should have stepped into this case and shut up the defense teams with a gag order. Failing that, the media should have exercised more discretion in allowing advocates to dictate coverage."

The complaint isn't against biased coverage in this case, the complaint is against biased coverage in general, with this case being an example of bias on behalf of the defense. It is a point well worth making -- extensive media coverage of criminal charges, particularly coverage that presents only one side of the case, taints the jury pool and adversely affects the rights of both the victim and the accused.

We have come a long way toward trial by the press. In big cases, there are polls conducted to see if the public thinks the defendant is guilty. The idea that the public, which is not present at the trial, does not review all the evidence (indeed, gets most of its information through a 2-minute "in-depth analysis" of the trial) and cannot see the witnesses to assess their demeanor, is in any position to legitimately give an opinion on guilt or innocence is ludicrous. Yet the polls are taken, and people look at the polls to determine if the jury "got it right."

Posted by: wally | June 27, 2006 12:02 PM

Mr. Cohen's article added little to the discussion of the Duke lacrosse case. When the case first began, it was the
Mr. Nifong's statements and the media coverage that convinced so many people that a rape had happened. I believe that Dave Evans speech the day he was arrested was a turning point in public opinion. People began to rethink the case. The defense began disseminating information to the public and the media ran with it. The inconsistencies in the story are too long to list in this posting. If the media wants the truth, then or course they are going to stay with the story. And many of us are grateful they are continuing to keep the story in the public eye.

Posted by: gcparent | June 27, 2006 12:46 PM

wally, I agree with you on the focus of the article. Cohen does not argue for either side in the Duke case, but he makes an objective analysis that the press can be the ultimate influencer in court proceedings. Cohen raises the question, does justice come from inside the courtroom or through media blitzes?

Posted by: | June 27, 2006 01:11 PM

I disagree with some of the commenters here that Andrew Cohen's piece on the Duke lacrosse tragedy was an unbiased analysis intended to encourage neutral media coverage.

In my opinion, Mr. Cohen reveals his bias most clearly when he writes about DA Mike Nifong: "...the prosecutor, after saying a bit too much too early about his case..."

A "bit too much"? Let's look at some of what Mike Nifong said and did:

-By his own estimation, he gave between 50 and 70 interviews consuming 40 hours of his time.
-Using his arms, he demonstrated how the players supposedly choked the accuser.
-He used language that left little room for the players' innocence. (Example: "There's a good chance if someone had spoken up and said, 'You can't do this,' it might not have happened.")
-He poured gasoline onto the racial tensions in Durham. (Example: "The circumstances of the rape indicated a deep racial motivation for some of the things that were done.")

It seems to me that Andrew Cohen reveals his bias by coming down so harshly on a legitimate Newsweek story, while dismissing Mike Nifong's egregious actions with some cheap language.

Posted by: MCA | June 27, 2006 07:06 PM

Cohen's WAPO colleague, Ruth Marcus, puts him to shame with the best column yet on the Duke LAX case.

Simple, concise and damning for Nifong. I am in awe of a write who can so concisely summarize a hellishly complex and unfolding case.

It has the ring of commonperson truth, in to the wordy, ill-informed bloviating of Andrew Cohen.

An impressive word count doesn't poorly reasoned, sloppily written crap.

Posted by: The real deal | June 28, 2006 12:35 AM

Apparently you have not looked at the evidence available in the public domain. These include witness statements from Kim, the drivers, police reports, etc...

From this information it is gleaned that there can be no possible way the lax boys are guilty. You can sit on your ass while innocents are persecuted, Mr. Cohen, or even subtly try to hurt them yourself, or you can look at this evidence:

1. She waited to cry rape until she was about to be held involuntarily in a mental ward.
2. There is no dna under her nails or fake nails, yet she claimed she scratched them for 30 minutes.
A. No dna found to match Collin anywhere.
B. No dna found to match Reade anywhere.
C. Dna found on top of fingernail, consistent w/contamination or transference.
D. Dna found on top of fingernail not a "match."
E. Dna picked up and put into bathroom trash can by resident of home
3. She claimed she was raped for 30 minutes but time-stamped photos show that is not possible.
4. She didn't follow-up with rape charges made in 1996.
5. She didn't follow-up on attempted murder charges.
6. She was an escort and had a boyfriend, and she had sex prior to the alleged rape.
A. SWMNBN admitted to three one-on-ones per week.
B. Only dna found in, on or around her belonged to the "boyfriend."
C. Her "driver" took her to the Motel 4 of 5 times over the weekend.
7. Her claim that she was 100% certain of Reade's identity as a rapist.
A. Identification came 3 weeks after the party.
B. She was said to be "passed out drunk" shortly after the party.
C. Reade has an air-tight alibi.
D. There were at least 3 photo identification sessions, 1st two with no ID's.
8. She apparently has identified 4 people as her three attackers.
9. She identified a person with a mustache as an attacker.
A. Evans was only identified at 90% certainty
B. Evans did not have a mustache that day.
10. Her 100% id of Reade creates reasonable doubt about her id of Collin & Dave.
11. The nail polish on the stairway is evidence she polished her nails in the bathroom.
12. The coincidences involved with the 1996 rape accusation.
A. 3 attackers.
B. Had threats to her life.
C. She claims rape occurred for a long time ("continual period").
D. Even her father claims the 1996 charges were false.
13. Duke hospital and police station were much closer than Krogers.
14. Kim Roberts initially stated that a rape probably did not occur, calling it a "crock."
15. The "broom claim" changes her story, and, at best, makes her account look fishy.
16. She went back into the house.
A. Could have called her father or "boyfriend" to retrieve her items.
B. Reade was long gone.
17. Reports of her vacillating about continuing with the case.
18. Seligmann's alibi.
A. Telephone calls to girlfriend.
B. Other telephone calls.
C. Telephone call to cab company.
D. Affidavit of cab driver.
E. ATM receipt.
F. ATM photos.
G. Fast food receipt.
H. Dorm card swipe record.
I. Affidavit of other cab passenger.
J. Testimony of 40+ other guys that he did not rape her.
19. The photo identification procedures were beyond suggestive.
A. Only Duke lax players included.
B. She was told that only people at the party were in lineup.
C. Lineup occurred 3 weeks after alleged rape.
D. She starts identifying people only after the proctor changes his procedures.
E. She identifies 3 of first 7 of 46 photos.
20. The family is in talks with a civil attorney, suggesting a financial motive.
21. SWMNBN appears to be smiling in picture taken after alleged rape.
22. She initially identified "Adam," "Bret," and "Matt."
A. She claims they were fictitious names.
B. It comes out later that there are people on the team with those names.
C. Who would use "fictitious" names of real people
D. She also identified one of the above as "Dan" as others referred to him as Dan.
E. She did not pick out a Dan, Adam, Bret or Matt in the photo lineup.
23. Supposed rapists left her fingernails, makeup bag and cell phone in the house for 2 days.
24. Kim Roberts called 911 and said no one was hurt, SWMNBN didn't correct her.
25. SWMNBN' prior criminal record.
A. Theft conviction should be admissible for impeachment purposes.
B. Pattern of "hiding" or loss of reality when confronted by LE.
26. Accused have no criminal convictions, nothing admissible.
27. Three big guys and SWMNBN were supposed to fit into a tiny bathroom for 30 minutes.
28. None of the other players have stepped up to claim a rape could have occurred.
29. The presumption of innocence.
30. The burden on the prosecution to prove a crime beyond a reasonable doubt.
31. No usable DNA after supposed 30 minute violent rape.
32. Natural belief that at least one player would step forward if anything happened.
33. Claim that SWMNBN was raped by 20 lax players, then 3.
34. Must have denied other sex, as boyfriend wasn't "swabbed" until May 3, 2006.
35. Didn't admit "boyfriend" sex to SANE/LE/Nifong.
36. Time-stamped pictures show bruising and cuts occurred before "rape."
37. Kim Roberts said she was with Precious for all but 5 minutes of evening.
38. Precious is bi-polar and manic depressive.
39. Precious was on Flexiral (muscle relaxant) when drinking.
40. She admits to being extremely drunk that night.
41. She admits to using vibrator for couple at motel before going to lax party.

Posted by: Gregory | June 28, 2006 12:36 AM

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