Richard Brodhead: Misunderstanding the Presumption of Innocence

The presumption of innocence is a legal doctrine that applies at trial.  Jurors are supposed to presume that the person before them who has been charged with a crime is not guilty.  It is up to the prosecutor to rebut this presumption.  It's easy to think of this way: We presume a person is innocent until the prosecutor proves otherwise.

In a recent statement, Duke President Richard Brodhead said that his handling of the Duke lacrosse scandal has been guided by this principle: "[O]ur students had to be presumed innocent until proven guilty through the legal process."  Did Richard Brodhead presume the Duke lacrosse players were innocent? 

When the students were charged with rape, he immediately prohibited them from returning to Duke.  He cancelled their entire team's lacrosse season.  He fired their coach.  Is punishment before conviction consistent with the presumption of innocence?

Several months later, after substantial evidence showed the players were almost certainly innocent, Brodhead (through an intermediary) invited the students to return to campus. 

How is punishing  someone before they are convicted consistent with a respect for the presumption of innocence?  How is lifting that punishment only after substantial evidence of innocence is revealed consistent with a respect for the presumption of innocence?

Brodhead presumed the students guilty.  It was only afer the students proved their innocence that he lifted their punishment.

The disconnect between Brodhead's words and deeds are striking.  The only question now remaining is whether Brodhead is a liar, or whether he simply lacks a first-grader's understanding of the presumption of innocence.

Comments

[Thomas]

Anyone who believes that there truly is any sub-
stance to the so called "presumption of innocence" is living in a make believe world. No one is ever presumed innocent, they are always presumed guilty and must prove their innocence if they expect to beat the case. Our misguided society believes that the police do not make mistakes and that they would not charge a person if they were not guilty. This has been established through polls conducted on the subject. somewhere among my massive piles of files I have an article regarding such a poll.
Anyways, it is only an issue because the boys that had been accused were rich kids from prominent families. someone ought to look into all the poor people who suffer the injustice of being presumed guilty until proven innocent on an every day basis.

[S.cotus]

Thomas, You have very interesting ideas. It must be very easy to be a prosecutor.

[Jack Dolce]

President Brodhead's action in the case represents a fundamental credo of liberal academics and as the leader of one of the most liberal universities in America his actions were predictible. Brodhead's concern was never the presumption of innocence but rather maintaining the support of Duke's liberal faculty which holds political correctness as a higher priority than the presumption of innocence. Can you imagine the outrage, among the Duke faculity, last March if Brodhead did not fire the coach, suspend the players and cancel the lacrosse season? He would have essentially lost their confidence and support. As it was they didn't feel he did enough.

So the presumption of innocence was never in the forefront of his thinking, nor was the responsibility of the university to its students and coach. What was important was demonstrating decisive corrective actions by the university against racist, elite lacrosse players. After all, liberal faculty members could never question the credibility of charges made by a black, female accusor. To these professors, she was never an accusor at all, she was from day one a victim.

Truth was not an issue for them. Far more important, is their need to be perceived as good caring people dedicated to fair play and atonenment for past sins.

The fact that the rape and assault did not take place is unimportant since the past is full of racial injustice. Ruining the lives of three innocent students and a coach who had nothing to do with any of this is a small price to pay to support their liberal agenda. The fact that forty-five other players had their reputations smeared and an opportunity to compete for a national championship wiped out after years of hard work was not even worth mentioning. More important was to demonstrate their overriding social concern and the political correctness of Duke University.

Families planning the future education of their children must take pause to even consider Duke as an option.The current lacrosse criminal case demonstrated the university's commitment to appearance at the expense of truth, a liberal faculty at the expense of students and expediency at the expense of loyalty. It would be folly to expect the university to support their children if doing so in any way jeoporized political correctness.

[S.cotus]

Jack, Duke will always be considered a “good” (but not the best) school to go to. Most party schools have a “rape” problem, and this does not stop most people from attending. I don’t mean to sound flippant, but 1) Duke is a party school; and 2) girls get raped at party schools. (Sometimes they don’t report it, because it will result in the “victim” not getting invited to parties.) But, graduates of Duke are generally employed or accepted by graduate schools, so families are not going to not send their daughters there because the president said a questionable thing. Besides, no Duke students were raped in the production of this scandal, anyway. It was minority students from a school with little out-of-state attendance.

The president of Duke is under no obligation to take any presumptions of innocence too seriously. He must follow his school’s own rules, but apart from that, he can take pretty much any position he wants. As a practical “truth” does not have much to do with just about anything in the “Duke Rape” issue. We have a trial which, if it happens, will involve legal theories, and competing testimony. It will not be decided by the president of Duke or any faculty.

[Moe Levine]

the presumption of innocence has nothing to do with anything other than a criminal trial. Criminal lawyers who suggest otherwise do everyone a real dis-service.

I may freely say that OJ Simpson was guilty and I am free to lawfully act in any way I want, based on by belief of his guilt.

Whether the head of Duke should/should not proceed in any way has nothing to do with the presumption of innocence, for Duke has no role in the criminal prosecution. If Duke wants to suspend students or re-instate students or just kiss off the whole issue, it makes no difference--Duke is free to do whatever Duke wants to do, subject to any contractual agreements between Duke and its students.

Similarly, if people believe the Duke faculty is driven by political correctness over all other values, they are, to our good fortune, free to have a express that belief.

At the end of the day, all we have here is bad judgment by the entire lot. The players for having the party, the "victim" for all her choices, the dean, the prosecutor . . . this blog, for the list of bad judgments here is endless

[Mike]

I agree that the presumption of innocence need not apply outside of a courtroom. But Brodhead is the one who keeps bringing it up and saying that he is applying it outside of the courtroom. So we can add this your list of "bad judgment" - Moe's reading comprehension.

[Jack Dolce]

Thanks Moe and S.cotus. Yes, the presumption of innocence is a legal issue and Brodhead and Duke are free to exercise other standards regarding deportment. Nevertheless, whatever the standard there was a rush to judgment on the part of Brodhead and the gang of 88. Their early statements and actions on this issue are clear.

Additionally, the university has a responsibility to act based on reality, and truth and I would maintain to avoid action until the facts are known. Furthermore, loalty to students by the university is a fundamental responsibility and voided only by clear actions contrary to university rules. I am sure you know that MANY organizations at Duke (and other schools) have had drinking and strippers at parties. This does not make it right but the university knows it happens and has done little to discourage it. No, the actions of Duke were driven by concern for political correctness and not the conduct of the students.

It is also true many mistakes were made by all the parties. However, there is a big difference between having an inappropriate party and falsely accusing others of rape.

Finally, my suggestion is that potential students might avoid Duke, not because they fear rape on campus, but rather the actions of the administration and lack of support to students. By the way, early decision applications at Duke are down twenty percent this year and while total applications are down only a few percent this flies in the face of more than a ten percent nationally in college and university applications.

[S.cotus]

Jack, If I were in his place I wouldn’t have done what he did. I agree that it is bad judgment.

[AntonK]

Moe Levine says, "At the end of the day, all we have here is bad judgment by the entire lot. The players for having the party, the "victim" for all her choices, the dean, the prosecutor."

No Moe, the prosecutor didn't just make a "bad judgment," he likely broke the law, and, certainly every ethical standard known to mankind.

"Former Duke Lacrosse 'Rape' DA Charged With Withholding Evidence, Misleading Court."
http://abcnews.go.com/US/LegalCenter/story?id=2818930

[S.cotus]

First of all, we should withhold judgment on Nifong, so we don’t do what he is accused of. Second of all, there are many rules of professional responsibility, and he is only accused if breaking a few of them.

TSG has the latest of the charges, which seems to have been amended:
http://www.thesmokinggun.com/archive/years/2007/0124071nifong1.html

[Moe Levine]

S.cotus says, that, "First of all, we should withhold judgment on Nifong"

BS--why in the world should one do that? there is more than enough in the public record to make a more than sensible judgment that he should be neither a prosecutor nor lawyer

Mike writes, "But Brodhead is the one who keeps bringing it up and saying that he is applying it outside of the courtroom." Assuming that is what Brohead is saying, doesn't make it so, it just makes Brohead disingenius or worse, something I believe we are all in agreement upon. Now it seems to me for a university president to be so transparently disingenius is bad judgment, but mike seems unable to discern what is implicit in even the most simple of observations

[S.cotus]

Why should we do that?

1) You don’t really have access to the record.
2) Assuming you did have access to the record, we could easily judge everyone arrested based purely on arrest reports, because, after all, it is in the public record.
3) There has not been a full opportunity for cross-examination and discovery of the underlying issues. There has been a lot in the press, and some cross-examination on the related (but not identical issue) of his conduct in the trial. However, the cross-examination has been by people that represent the defendants, and not the bar itself.

[Christopher King]

Meanwhile, another claim of false rape slides by in relative obscurity right there in front of you in CT fellas:

http://christopher-king.blogspot.com/2007/01/dubious-rape-charge-in-hartford.html

**********

Today's post reads:

I agree with fellow legal bloggers over at Crime and Federalism that Prosecutor Nifong is a race-baiting, evidence-hiding creep, and that the rape accuser seems to be lying about a whole lot of things. It's pathetic and ruins more legitimate claims of rape or sexual abuse.

But meanwhile, where is the outrage that the white woman in Hartford recently lied about being raped by large, Dangerous Black Man, in the same manner as Charles Stuart lied about his pregnant wife being shot by another Dangerous Black Man in New England, causing Civil Liberties in the minority community to be (further) suspended while the police searched the streets for this presumedly Black Villain?

As a "Dangerous Black Man" myself (see the American Tower videos in American Lawyer II and III at KingCast), I must say this Country is still a long way from fully actualizing The Dream held by Dr. Martin Luther King.

[Moe Levine]

access to the record. . .

yes, I have had access to the record on Nifong.

He motion papers and transcripts are both all over the Internet.

There is no dispute that he told an expert to w/h exculpatory factual information. He admitted doing such, himself. There is no dispute that he made statements to the press. He admitted doing such.

Simply put, I believe in the disbarment for any prosecutor who violates Brady v. Maryland directly, indirectly, by hook, crook,or accident.

[Mike]

For once, I agree with Moe.

[Christopher King]

I will second Mike and remind him of that hastily-resigned prosecutor in that bogus Extortion case of mine from when I was NAACP Legal Chair, who got a continuance on trial because of Chief Dunn's Civil Deposition I took, then when he discovered it actually contained exculpatory evidence he withheld it in violation of NH Crime Rule 98 (b)(3), and we had to file a damn Motion to Compel:

http://christopher-king.blogspot.com/2006/05/kingcast-presents-prosecutor-albrecht.html

Excerpt from the Continuance ORDER:

"...[T]he Court finds that the State's argument that Chief Dunn's Deposition is important to the State's case in light of recent disclosures that [Mr. King] made potentially incriminating statements during the course of the civil deposition compelling. The State shall obtain a transcript of Chief Dunn's deposition at its own expense within 30 days or request an extension for good cause."

Peace.

[Jim O'Sullivan]

He's not a liar, he's a coward. He succumbed to political presure to advance "justice" brought to bear by a mob that couldn't spell the word.