Gtown vs Legally Troubled Duke

[AustinHoya03]

madgesdiq said:

Let's agree to disagree. Your argument ignores the facts of how hate crime laws are selectively applied.

What facts? Either I'm not reading carefully enough or you haven't presented any. I don't really know but I would guess these laws are applied too rarely for any sort of empirical study to exist on their selective application.

madgesdiq said:

The Mitchell case is the Supreme Court precedent with respect to 'hate crimes' and it involves black youths beating the tar out of a white kid.

I would bet that statistically in Wisconsin that Jeffrey Dahmer inspired more fear in the homosexual community with his serial murders than a handful of black teens running around causing one night of trouble did in Madison's white community. If Dahmer had been straight and targeting homosexuals, would his crimes have been worse?

Yet, under Wisconsin law, the wilding teenagers were charged with a hate crime. I doubt that Rehnquist's decision in Mitchell makes whites in Wisconsin sleep better at night.

My argument is not about black vs. white, gay vs. straight, or whether white people in Wisconsin sleep better at night. Mitchell actually aids my argument. Rehnquist writes: "The fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across the board does not alter the result here. For the primary responsibility for fixing criminal penalties lies with the legislature." (By the way, if we're going to start citing cases, how about the Supreme Court's upholding of VA's ban on cross-burning in Virginia v. Black 538 U.S. 343.)

And with your Dahmer hypo (enough with the hypos, by the way. In the borderline cases you conceive above a DA is most likely not going to prosecute) we're back to Saxa71's initial argument that when a person of one race/sexual orientation commits a criminal offense where the victim is of a different race/sexual orientation, then it's a hate crime. It takes more than that to prosecute under a hate-crime statute. Here are the relevant facts from Mitchell, for argument's sake:

"On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment *480 complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: " 'Do you all feel hyped up to move on some white people?' " Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: " 'You all want **2197 to Edited somebody up? There goes a white boy; go get him.' " Id., at 4-5. Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days."

I'm still waiting for an answer to my question on mental states, by the way.

[Madgesdiq]

sirsaxa said:

madgesdiq said:

Again, did the Columbine killers commit a "hate crime" against the one african-american kid they executed while run of the mill murder against the students they killed because they were jocks or popular. Applying the North Carolina law, the answer is yes, and to me, that is wrong.

Perhaps you might read the NC quote again. Quite clearly, applying the NC law the answer would have been "NO".

The quote about the NC law says nothing to indicate the killing of the one black student at Columbine would have been viewed any differently from all the other killings at Columbine.

In North Carolina, a hate crime is defined as a crime or violent incident perpetrated against someone solely because of his or her race, religion, or national origin/ethnicity.

If you believe hate crime laws are misguided, that is one thing. But understanding what the laws say is a necessary precondition to presenting a cogent case against them.

Sir Saxa. I TOTALLY disagree. In my opinion and the opinion of the father of Isiah Sholes, most intellectually honest individuals who examine the facts of that day would determine that what happened to Isiah Sholes in Columbine that day is by ANY defintion of the term "hate crime," a hate crime.

In my opinion, the reason it was NOT presented as such in the media is because 1) the perps offed themselves and there was no prosecution and 2) the others were murdered out of HATE for being members of the unprotected "Jock" and "Popular" communities. (Also, the media decided to hop on the gun issue as the "issue of the day" in Columbine, and ignore the motives for why individual students were targeted, certain of which were based on race and religion.

A hypothetical prosecution of one of the murders as a hate crime and the others as simply intentional murder, which is the correct result under hate crime legislation, would have illustrated the divisiveness and hypocricy of such legislation.

"In hindsight, Mr. Shoels regrets there were warning signs about the Trench Coat Mafia that went unheeded.

"They (his children) constantly talked about them," Mr Sholes said. "Last year he (Isaiah) had a confrontation with one of them. That's when he was telling me they targeted Black kids."

"My 15-year-old daughter had a confrontation with some other little White girl. They were calling them n**ers and kind of cursing them out, and my daughter didn't take it and we got called up to the school because they said my daughter and a White girl were calling each other prejudiced names. That was the only time we really conflicted with the school about that," he said.



www.cnn.com/US/9904/21/school.shooting.02/

"Athletes were at the top of their hit list and ethnic minorities ranked a close second. "The shooter turned attention to a black student, saying 'I hate n***ers' and then fired three shots."

"Columbine High School student Will Beck says he believes the shootings were racially motivated ."


www.findarticles.com/p/articles/mi_m1355/is_23_95/ai_54796420


But it all ended when two crazed White classmates, cloaked in black trench coats, armed with two sawed-off shot guns, a semi-automatic rifle and handgun, and a variety of homemade explosives, threw a bomb into the school library, where Isaiah was writing a paper, and proceeded to shoot panic-stricken students. One of the gunmen, finding Isaiah crouched under a table, laughed, yelled, "Oh, there's that little n***er," and shot Isaiah at point blank range in the face."



*****EDITORIAL. Reading the above articles made my blood boil in rage at those racist scumbags. I wish they had survived so that they could have been forced to stand trial and then executed or sentenced to the max penalty under Colorado law. That being said, I cannot support a law that does not afford the same protection to all students senselessly murdered on that day.

[Madgesdiq]

austinhoya03 said:

Here are the relevant facts from Mitchell, for argument's sake:

"On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment *480 complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: " 'Do you all feel hyped up to move on some white people?' " Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: " 'You all want **2197 to Edited somebody up? There goes a white boy; go get him.' " Id., at 4-5. Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days."

I'm still waiting for an answer to my question on mental states, by the way.

I think the Mitchell case is wrongly decided. Hypothetically, if the african-american youths involved in the Mitchell crime had beaten an robbed a black youth after committing the initial crime and also taken his Nike's, why shouldn't that victim receive the same protection under the laws as the white kid who was beaten with a baseball bat?

As for your question on mental states, while it is true that "intent" is an element of certain crimes and that there are affirmative defenses that can be used against the element, I think that "hate" in itself is impossible to legislate against and laws for criminal actions emenating from hatred already exist.

Don't take any of this personally. I enjoy the debate.

[kchoya]

aggypryd said:

kchoya said:

Something I've wondered from the beginning: what if the roles were reversed? What if a white girl said she was raped by some people on the Grambling football team and the people who raped her were black? Would it be ok to paint everyone black player with the same brush and make them submit to a DNA test but not the one or two white players on team?

I bet Jesse Jackson and Rev. Al would be all over that crying racial profiling and this and that.

you don't need to go to Grambling...

NCCU is an HBCU also...

I guarantee you that those boys wouldn't be hiding behind lawyers...they'd already be in jail if they were Black...

I just picked Grambling 'cause I thought I remembered them having a white QB recently.

However, if this was NCCU, I don't think that 46 of them would in jail. And that's my point - why is ok to round up 98% of the team and make them submit DNA samples and, in effect, make them rat each other out.

That's ok in the civil context when you don't know who's liable, but in the criminal context I think you need a little more to go on then "white Duke lacrosse players" to bring in that many people.

[AustinHoya03]

madgesdiq said:

I think the Mitchell case is wrongly decided. Hypothetically, if the african-american youths involved in the Mitchell crime had beaten an robbed a black youth after committing the initial crime and also taken his Nike's, why shouldn't that victim receive the same protection under the laws as the white kid who was beaten with a baseball bat?

As for your question on mental states, while it is true that "intent" is an element of certain crimes and that there are affirmative defenses that can be used against the element, I think that "hate" in itself is impossible to legislate against and laws for criminal actions emenating from hatred already exist.

Don't take any of this personally. I enjoy the debate.

Oh, I'm not taking it personally. I enjoy the debate, too. It's often difficult to state your opinion on a message board without sounding like a jackass, especially for people who refuse to use smileys, so apologies if I sounded like one.

I actually have to go do some work now, but I'll respond later. I think your response to my question was good, but I think it's undermined by the holding in Black v. Virgina. I'll be looking for that study on selective application this evening.

[AustinHoya03]

kchoya said:

However, if this was NCCU, I don't think that 46 of them would in jail. And that's my point - why is ok to round up 98% of the team and make them submit DNA samples and, in effect, make them rat each other out.

Yeah, I agree with kc on this. That process doesn't strike me as "routine police work." I think there could/should have been more of an uproar about this in Durham in this instance. If this had happened in, say, New Canaan, CT, there would have been.

[JimmyHoya]

Welp, it looks like the DNA shows nothing and that pictures found suggest that the accusser already had a bunch o' bruises when she arrived. Interesting to say the least.

[Gold Hoya]

Duke Chronicle article on the DNA tests.

DNA evidence taken from 46 members of the Duke's men's lacrosse team does not match any DNA material from the woman who claimed she was raped by members of the team at a March 13 party, lawyers representing the players said at a press conference Monday.

[tgo]

i agree that the public elects the legislature and the legislature makes the bills and i have read defenses of how the law can be constitutional- i disagree but the arguments are relatively reasonable- what i havent read is any defense for the law itself, if you were a legislator, why would you vote to create such a law -outside of the obvious pandering for votes and the fact that you will be roasted by the media and called a racist or a homo-phobe for taking such a stand.

[kchoya]

austinhoya03 said:

kchoya said:

However, if this was NCCU, I don't think that 46 of them would in jail. And that's my point - why is ok to round up 98% of the team and make them submit DNA samples and, in effect, make them rat each other out.

Yeah, I agree with kc on this. That process doesn't strike me as "routine police work." I think there could/should have been more of an uproar about this in Durham in this instance. If this had happened in, say, New Canaan, CT, there would have been.

Obviously I've never dealt with a case like this one, but I would think that a magistrate wouldn't issue a subpoena for DNA samples for that big of a group of people without more PC.

However, as jimmyhoya pointed out, it now appears that there is no DNA match with any lacrosse players (so says defense counsel):
sports.espn.go.com/ncaa/news/story?id=2404002

"No DNA material from any young man was present on the body of this complaining woman," defense attorney Wade Smith said.

Together with the alleged photographic evidence showing injuries to the complainant prior to the alleged assault, it will be very interesting to see where this goes.

[RockawayHoya]

I'm not a lawyer (like many of you obviously are), but what are the chances of a sexual assault conviction without a DNA match? Is that extremely unlikely? As a science major, I just think that the lack of a DNA match is a huge blow to the credibility of the witness.

I'm not saying the lax players weren't at fault for the situation getting out of hand (like it did), but it makes me wonder if the players stand a good chance of only facing lesser charges at this point.

[StPetersburgHoya (Inactive)]

kchoya said:

austinhoya03 said:

Yeah, I agree with kc on this. That process doesn't strike me as "routine police work." I think there could/should have been more of an uproar about this in Durham in this instance. If this had happened in, say, New Canaan, CT, there would have been.

Obviously I've never dealt with a case like this one, but I would think that a magistrate wouldn't issue a subpoena for DNA samples for that big of a group of people without more PC.

However, as jimmyhoya pointed out, it now appears that there is no DNA match with any lacrosse players (so says defense counsel):
sports.espn.go.com/ncaa/news/story?id=2404002

"No DNA material from any young man was present on the body of this complaining woman," defense attorney Wade Smith said.

Together with the alleged photographic evidence showing injuries to the complainant prior to the alleged assault, it will be very interesting to see where this goes.

I don't know if a subpoena was ever issued for DNA evidence - all of the evidence described in the subpoenas made public has been property and information. I thought that I read somewhere that the players submitted to the tests voluntarily. It is of course possible that the subpoena for the DNA is still under seal much like the e-mail subpoena was under seal until a few days ago. After all of this is over, if the DNA testing was compelled by the court, I'd like to read the subpoena to see the reasoning that the court used in forcing such a large compulsory test - it seems odd to me too.

[Madgesdiq]

rockawayhoya said:

I'm not a lawyer (like many of you obviously are), but what are the chances of a sexual assault conviction without a DNA match? Is that extremely unlikely? As a science major, I just think that the lack of a DNA match is a huge blow to the credibility of the witness.

I'm not saying the lax players weren't at fault for the situation getting out of hand (like it did), but it makes me wonder if the players stand a good chance of only facing lesser charges at this point.

You'd think that they need some sort of DNA evidence, whether from her body or from used condoms found on the scene, especially because the wide net that they cast requesting DNA testing (46 lax players) makes me think that the alleged victim is unable to provide a positive ID of the alleged perps.

[SirSaxa]

madgesdiq said:

Sir Saxa. I TOTALLY disagree. In my opinion and the opinion of the father of Isiah Sholes, most intellectually honest individuals who examine the facts of that day would determine that what happened to Isiah Sholes in Columbine that day is by ANY defintion of the term "hate crime," a hate crime.

....

A hypothetical prosecution of one of the murders as a hate crime and the others as simply intentional murder, which is the correct result under hate crime legislation, would have illustrated the divisiveness and hypocricy of such legislation.

Madgesdiq,

My point wasn't to say the Columbine killers didn't "hate" people, including the young black student. If anything, they seemed to hate everyone. I do not agree with your assumption that the correct result under hate crime legislation was to treat the murders differently.

From the CNN article you posted:

While police have not given a motive, several students said Harris and Klebold were members of a group calling itself the "Trenchcoat Mafia," outcasts who bragged about guns and bombs and hated blacks and Hispanics, as well as student athletes.

Police who searched Harris' home said they found bomb-making material. Students said the group was fascinated with World War II and the Nazis and noted that Tuesday was Adolf Hitler's birthday.

[If that was the case, presumably they hated jews too? and gypsies, and homosexuals and whoever else Hitler hated?]


A gunman looked under a desk in the library and said "Peek-a-boo," then fired, Cohn said. Anyone who cried or moaned was shot again. One girl begged for her life, but a gunshot ended her cries, the student said.


Cohn said one killer put a pistol to his head but did not shoot him. Instead, he said, the shooter turned his attention to a black student, saying, "I hate Editeds." Cohn heard three shots but couldn't see what happened.


"You could hear them laughing and running upstairs," said one student, who broke down in tears as she recounted the killing spree. "They didn't care who it was and it was all at close range."



As mentioned previously, I am not a lawyer, and certainly not a prosecutor. So I can't say for certain how any "hate crimes" laws that Colorado might have would have been applied.

But from what I have read of hate crimes laws, there is nothing that would cause a single victim in a random mass murder to be considered any differently from all the others. And there was nothing in your post that cited evidence that it would.

[miamihoya]

I have a feeling that the negative DNA results are not going to do anything to aleviate the situation in Durham. If anything it will just ignite both sides even more. I don't wanna sound like I am trying to defend the players in anyway, but from the beginning it seems like the prosecution has seen the DNA results as the major piece in their case, so they must be tremendously dissapointed. Unless there is something that has not been reported, there doesnt seem to be enough to prosecute the kids. I'm sure that the players lawyers and parents will use these results to drive their outrage at the D.A.s irresponsible rheotoric in recent weeks, essentially claiming it was a slam-dunk case. It's not a pretty situation, but I hope that both the accuser and the lacrosse players (if they are innocent), as well as the town of Durham, will be able to recover from this.

[StPetersburgHoya (Inactive)]

miamihoya said:

I have a feeling that the negative DNA results are not going to do anything to aleviate the situation in Durham. If anything it will just ignite both sides even more. I don't wanna sound like I am trying to defend the players in anyway, but from the beginning it seems like the prosecution has seen the DNA results as the major piece in their case, so they must be tremendously dissapointed. Unless there is something that has not been reported, there doesnt seem to be enough to prosecute the kids. I'm sure that the players lawyers and parents will use these results to drive their outrage at the D.A.s irresponsible rheotoric in recent weeks, essentially claiming it was a slam-dunk case. It's not a pretty situation, but I hope that both the accuser and the lacrosse players (if they are innocent), as well as the town of Durham, will be able to recover from this.

I don't know how to put this in a manner that's appropriate for the boards - I learned in a side bar conversation during a lecture today that over 75% of perpetrators in rapes don't leave DNA evidence behind.

The only things that could make the prosecution's case now would be: photos or other recordings of the act, someone on the Duke Lax team cooperating, or an eye witness that wasn't on the team - none of those scenarios sounds incredible likely.

[Madgesdiq]

sirsaxa said:

[But from what I have read of hate crimes laws, there is nothing that would cause a single victim in a random mass murder to be considered any differently from all the others.

Our fundamental difference of opinion emenates from the fact that you believe the Columbine killings were random, and I believe that the evidence above shows that certain students were targeted because of their race and religion (I cite the example you gave above of the perpetrator holding a gun to one kid's head and then changing targets when he identified Isaiah Sholes specifically because he was black.)

But have it your way, because the fact that you are trying to make an argument that the murderers who had walked into Columbine should have been subject to stricter penalties if I am correct and they targeted individuals of certain race, religion and ethnicities, than if you are right, and they just hated everyone, shows the fundamental flaw in the reasoning behind hate crime legislation.

[Madgesdiq]

stpetersburghoya said:

miamihoya said:

I have a feeling that the negative DNA results are not going to do anything to aleviate the situation in Durham. If anything it will just ignite both sides even more. I don't wanna sound like I am trying to defend the players in anyway, but from the beginning it seems like the prosecution has seen the DNA results as the major piece in their case, so they must be tremendously dissapointed. Unless there is something that has not been reported, there doesnt seem to be enough to prosecute the kids. I'm sure that the players lawyers and parents will use these results to drive their outrage at the D.A.s irresponsible rheotoric in recent weeks, essentially claiming it was a slam-dunk case. It's not a pretty situation, but I hope that both the accuser and the lacrosse players (if they are innocent), as well as the town of Durham, will be able to recover from this.

I don't know how to put this in a manner that's appropriate for the boards - I learned in a side bar conversation during a lecture today that over 75% of perpetrators in rapes don't leave DNA evidence behind.

The only things that could make the prosecution's case now would be: photos or other recordings of the act, someone on the Duke Lax team cooperating, or an eye witness that wasn't on the team - none of those scenarios sounds incredible likely.

Do you understand why there hasn't been a lineup yet?

[kchoya]

stpetersburghoya said:

I don't know if a subpoena was ever issued for DNA evidence - all of the evidence described in the subpoenas made public has been property and information. I thought that I read somewhere that the players submitted to the tests voluntarily. It is of course possible that the subpoena for the DNA is still under seal much like the e-mail subpoena was under seal until a few days ago. After all of this is over, if the DNA testing was compelled by the court, I'd like to read the subpoena to see the reasoning that the court used in forcing such a large compulsory test - it seems odd to me too.

"According to the application for a court order seeking DNA samples from the team, a nurse trained to treat rape victims and a physician who treated the woman said they witnessed symptoms consistent with sexual assault. The document also includes details of a search of the house where the woman said she was raped for about a half-hour."

I don't know if it was a subpoena per se, but it sounds like the DNA samples were not given voluntarily.

[HoyaLawya]

There's some back and forth legal opinion about the lack of DNA evidence in one of today's articles from the Duke Chronicle:

www.dukechronicle.com/

Was at a lacrosse after-game function for my son's LAX team (which plays against Delbarton b/t/w) and the news was "fresh" about the DNA results not matching.

Which didn't surprise me in the least. Not that I'm a defender of "frat boy" behavior gone wild, nor coaches and institutions turning a blind eye to indices that an athletic team's extracurricular pursuits might be getting out of hand ... Duke still stands indicted IMHO ever since Shelden Williams situation. ;D

But ...

In an environment where there's a fair amount of cross-familiarity (coaches, players, families from same towns) there has been some interesting information from informal sources over the past few weeks that only got minimal (or extremely delayed) mention in the media.

Some of it helps answer a few questions raised by earlier posts.

As to the question of whether all 46 players were compelled to submit to DNA testing ... I think the players volunteered it, in order to exonerate the team completely. In addition to the one player who was "exempted" due to his race, there were other players who were out of town for job interviews in NYC and who could have documented that fact to exempt themselves (also) from DNA testing. But they didn't.

Further, the "rumor mill" from these parts is that some of the freshmen players weren't at the party. Most media reports for quite a long time suggested that the entire team was at the party. Only in the last few days did a lower number (40 or 41) start to emerge.

That number might go lower still ... OR ... it might turn out that some non-players were at the party.

There has been plenty of ink spilled alleging that the team had become some kind of "Operation Stonewall" in refusing to cooperate with investigators. Yet, the team captains sat down with investigators in the early stages, unrepresented by counsel. There's a belief "in these here parts" that the cautionary request to not speak any further might have been issued to the players by someone at Duke itself and, of course, that message would have been further reinforced by lawyers one those got lined up for the players by families.

The retrieval of the e-mails. Anybody wonder who voluntarily provided those to investigators? At least Newsweek's article did enough digging to figure out that McFadyen's sick-o sounding e-mail was an allusion to the novel and later movie "American Psycho" which met with a rejoinder from one of the other players who received it with a statement (e-mailed reply) that he'd bring his Phil Collins CD. (People who are unfamiliar can look up one of the script's more memorable passages on the imbd website.)

I think that the factual timeline that is going to be developed by the defense will be ...

11:30 two dancers arrive. At least one of them is in bad enough shape (drunk, beaten up) that her share of the $800 paid for the two to dance is going to be wasted money. A tiff of some kind ensues. Dancer then locks herself in bathroom ... players will maintain she was in there alone, and for quite awhile.

Dancers leave ... and so do many of the players. Evening is a bust.

Complaining witness isn't so drunk that she doesn't realize that she left behind money and her cell phone in the bathroom. Tries to get back in. She bangs on door but remains locked out.

Other dancer places the first 911 call -- if her friend can't get back into the house to retrieve the possessions, then why not call the police and get the athletes in trouble for the acknowledged (even by them) crimes of underage consumption and/or supplying liquor to minors. Given the very concealed nature of the house number (faded and placed on a low step) the ability of the first caller to provide an address for the house is NOT consistent with a casual passerby who is either driving by, or walking by late at night, or sitting on the "Duke wall" across the street from the house. All of which are locations given by the caller (self-identifying as a 'random passer by') during that first 911 call. Knowledge of the precise street number would be consistent with having a performance engagement at an appointed time.

Dancers leave, in same car. (How the victim initially arrived is still uncertain. The second dancer has supposedly claimed she didn't know the victim until they both arrived at the party house.)

They drive around a bit ... but one is still stewing about money and cell phone left behind in the bathroom.

A police station is only 1 mile from the party house, but they show up at a Kroger's that's 2.5 miles away. Another call is placed to 911, this time by the clerk at the Kroger's.

Story that "emerges" at that time is that the victim was found walking along the road and driven to the Kroger's. The co-dancer probably wanted to distance herself from her own role at the party house.

Private investigators hired by defense lawyers have an opportunity to interview the co-dancer. In that interview, defense lawyers have stated that her own statement was that the victim did not mention she'd been raped when both were still at the scene.

In fact, even after the second 911 call, it would be another hour before a claim of rape appears to have been raised. (Or, at least, entered into the log about the nature of the crime(s) alleged.)

Like I said, I am no defender of athletic team "cultures" that revolve around underage drinking and hiring sexual entertainment, nor athletic team hazings, nor presumptions that scrapes with the law will get tidying up from college ADs or administrations or parents financially able to hire good lawyers, nor "herd mentalities" nor "cultures of privilege" in general.

But, after this team's players have been essentially tried and convicted of a felony in the media, it's not too far fetched a notion to me to believe that the crime of rape was not one of the criminal offenses committed on March 13 - 14.