"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, January 26, 2007

Who's the Real Victim?

Some law professor types seem to want to find "race" and "class" behind every possible injustice, even where those factors are nowhere to be seen.

Take two cases: in one, a 17-year old man in Georgia, Genarlow Wilson, was charged with child molestation after he and five other defendants "partied" with a 15-year old girl, drinking with her, having intercourse with her and allowing her to perform oral sex on them. Under a quirk of Georgia law, the penalty for the oral sex is a mandatory 10-year prison term, while the intercourse is only a misdemeanor.

The other five defendants chose to seek plea agreements which allowed them to avoid the maximum penalty. Wilson chose to go to trial and assert his innocence. A jury found him guilty and while not liking the penalty, imposed the mandatory minimum.

Other than the unusual fact of a very long mandatory minimum, this case is entirely ordinary: a defendant chooses to roll the dice and make the state prove the charge: if you win, you go home, if you lose, you go to jail. It happens every day in courtrooms around the country. No one, to my knowledge, has suggested that the jury was racially biased (Wilson is black, the victim is white), and I suspect that, irrelevant as it is, we would have heard about it if there were 12 white jurors.

What upsets people about the case is the harsh result, which the judge, the defense, and even the prosecutor acknowledge. But the legislature passed the law, the prosecution's duty is to do justice by convicting people who break the law, and after all, Wilson stupidly rejected plea offers that his five companions accepted. Whether you like the law, or think it silly and unfair, or (like me) think it a good law but in need of modification to account for situations like this case, it is the law, and Wilson violated it.

Now consider the case of the Duke rape prosecution. The prosecutor, Mike Nifong, offering comments in the press about the facts and strength of the case, pressed forward with a rape prosecution involving a black victim and white defendants. ABA model rule 3-1.4 states:
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

Yet Nifong had been in front of the media on many occasions talking about the evidence in the case. This alone was unethical, in my view.

Then, to compound his violation, when it became clear that a DNA result indicated that multiple men, but none of the defendants, had recently had sex with the victim, he did not disclose that information to the defense as required by law.

So there are the two situations in a nutshell: in one case a prosecution under a lawful statute without a hint of a racial component to the prosecution. In the other, a prosecutor acting unethically to try to convict white defendants charged with rape of a black victim.

While elsewhere admitting he has no evidence of a racial bias at work in the Wilson case, the law prof nonetheless throws out this comment:
What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case. In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges. In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.

What nonsense.

Nifong arguably violated several ethical rules, even before it surfaced that he witheld clearly exculpatory evidence. His violation was not that he pursued a harsh charge against a factually sympathetic victim, but that he blabbed to the press and witheld exculpatory evidence.

In the Wilson case, the prosecution had the discretion to act differently, but chose not to--because the defendant insisted on asserting his innocence. There is not the slightest ethical implication to that exercize of discretion.

The law prof's complaint is better directed against the legislature, which made the law, not the prosecutor, who merely enforced it. If his exercize of discretion is viewed as inappropriate, the redress is not through the state bar, as with Nifong, but by the people of his jurisdiction who will let him know in the next election what they think about his use of discretion.

If anything, the Nifong case shows how far some elected officials are willing to go to pursue politically "correct" prosecutions ("privileged white kids" vs. "poor African American single mom"); if there is a race and class angle it is that Nifong was willing to railroad the white defendants while playing on class envy.

By contrast, the Wilson case has no racial angle beyond the bare fact of the racial makeup of the defendant and victim. There is no evidence that the prosecutor is biased, that the jury was not racially representative, or that the courts which have reviewed the case are peopled with racists.

What explains the need to view everything through a race or class prism? Perhaps it's as simple as living out a fantasized world where Atticus Finch has to rescue the poor black folk from the inherently racist system.

But in 2007, those Duke case defendants are the real victims, not Genarlow Wilson.


loboinok said...

I agree with you concerning the Nifong case but I'm not sure we read the same story concerning the Genarlow Wilson case.

I don't see any justice in that case.

ESPN, Outrageous Justice

Maybe we just see things differently.

Gib said...

Minor correction - the girl in the Wilson case was black as well.