Tuesday, July 20, 2010

The Accusation and Conviction Machine, Part I

Even before I became involved in the Tonya Craft case, I knew that the legal machinery that accuses and convicts people of false rape and child molestation charges was powerful. I did not know how powerful it really was.

The obvious question is: Why? Why is it that a parent seeking leverage in a custody case can accuse the other spouse of child molestation, and even if the accusations are transparently false, there still is a good chance the other person will be charged with felonies and most likely convicted?

Why is it that a woman can charge a man with rape or sexual assault and no matter how ridiculous or self-serving the accusation might be, the man has a good chance of going to prison, even if everything the prosecutors and accusing witnesses claim is a lie?

The reason is that the United States has undergone a revolution in how the law and the provisions to protect the accused are seen not only by the authorities, but by the law professionals themselves. Perhaps the following passage by Jason Wool in a law journal article says it best:
The essential question is whether the system should be more inclined to protect innocent defendants, sometimes at the expense of women who have been date raped, or whether the system should be designed to ensure that more women's complaints result in convictions at the expense of some innocent men.
[Maintaining the Presumption of Innocence in Date Rape Trials Through the Use Of Language Orders: State v. Safi and the Banning of the Word "Rape," 15 Wm. Mary J. of Women & L. 193 (Fall 2008).]

In other words, according to some advocates, innocence really should be no defense at all, and I can say that many American prosecutors, judges, and their allies today share in that view. The presumption of innocence not only is met with scorn, but if they had their way, I believe I can say with confidence that most (but not all) prosecutors in this country believe that if one is charged with a crime, then guilt should be assumed, and there really should be no trial at all, just a plea and then punishment.

Lest one think I am being harsh, this is what Wendy Murphy -- who gave commentary on the Tonya Craft case on NBC's "Today Show" and was portrayed as a "legal expert" -- declared when asked about the presumed innocence of the defendants in the infamous Duke Lacrosse Case:
Stop with the presumption of innocence. It doesn't apply [at] Duke, as well as I'm really tired of people suggesting that you're somehow un-American if you don't respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you're a liar.
One has to understand that the charges in the Duke case were unquestionably false, yet even afterward, Murphy continued to claim that the families of the accused had paid off Crystal Mangum (which would have been strange, given that Mangum said she wanted to pursue the charges, even after the North Carolina Attorney General declared them unfounded).

Murphy, however, is not a fringe character. She is a regular guest on TV talk shows and is close to Nancy Grace, whose guilt-assuming show on CNN reflects her attitude as a prosecutor who the federal courts declared to be "fast and loose with the facts." I would say that Murphy reflects the mainstream in American law today, or at least the mainstream among American prosecutors.

But it is not the Wendy Murphys who have brought about the sea change in U.S. law, especially in what we would call "sex crimes." It has been both the Congress and the federal bureaucracies that oversee the administration of federal law, and in the past few decades, federal officials have (purposely, I believe) changed the legal landscape to where the imprisonment of innocents is seen as nothing more than "collateral damage" in the crusade to make the country safe for women and children.

There are four laws that have done the most damage to the presumption of innocence, I believe. They are:
  • The Child Abuse Prevention and Treatment Act (CAPTA), also known as the Mondale Act of 1974;
  • The Victims of Child Abuse Act of 1990, which gave millions of dollars to the Children's Advocacy Centers around the USA;
  • The Violence Against Women Act of 1994, which made the federal government a major player in determining how states would prosecute alleged rape and sexual assault; 
  •  The Victims of Child Abuse Act of 2003, which continued the federal relationship with the various CACs.
    Not only did the federal government provide millions of dollars of funding for advocacy groups but it also set the procedures as to how local law enforcement was to respond to accusations of rape or sexual misconduct. Furthermore, the laws, with their mandated reporting procedures, practically guaranteed that there would follow an epidemic of false accusations.

    The Duke Lacrosse Case

    In the spring of 2006, an African-American stripper, Crystal Gail Mangum, accused three Duke University lacrosse players of beating and raping her at a party where she "danced." North Carolina Attorney General Roy Cooper dismissed the charges in April 2007, declaring the players "innocent" (a rarity for prosecutors in any kind of criminal case) after his office did an extensive investigation.

    However, it was clear from the beginning that the charges were bogus, but they stuck for a number of reasons. First, the national media jumped upon the story and journalists threw all of their own prejudices (white on black, southern school, slavery, you name it) into their coverage and wanted the tale to be true. Second, the politics of Durham, Duke, blacks, and whites drove the "narrative," which turned out to be false.

    However, the third factor was the most important of all: the role of federal law in getting the wheels of the case turning. Mangum was found drunk in a car and was taken to a mental health facility called Durham Access. A nurse there improperly asked Mangum, "Were you raped?" (Interviewers are not supposed to ask those questions.)

    When Mangum answered that she was (she had not said anything about it before then), federal law mandated that she be taken to a medical facility where she would receive a rape exam either by a Sexual Assault Nurse Examiner (SANE) or other qualified medical professional. The SANE who would participate in the exam was a feminist ideologue named Tara Levicy, who later would lie and fabricate "evidence" to implicate the lacrosse players.

    (After the charges were dismissed, the three players and their families settled with Duke University and Duke University Medical Center -- Levicy's employer -- for a reported seven million dollars apiece. Levicy no longer is employed there, but still works as a nurse in New England.)

    One can see how federal policy set this disaster into motion, but this was not an isolated case, at least where the federal government and false accusations are concerned. In tomorrow's post, I will show how federal policies are driving false allegations of child abuse and molestation, and there is no end in sight to this American tragedy.


    Dan said...


    I can't agree more here.

    The legislation you point out "spins" well. In fact, if either of those came up for a vote again, i'd bet the farm that the majority citizen, senator and representative would support them.

    What the language of modern laws does not typically provide for is a way out if there are unintended downstream negative consequences. Just like being charged with one of these crimes, an immense and costly effort is required to cast some sunshine.

    Where I work, policies include exception provisions and always have clear intent (problem statement). Policies that begin to create unintended consequences are audited, reviewed and changed to reflect their original intent to better fit the context of where they are enforced.

    I know it's difficult to compare those two environments. But boy, I sure prefer the application of common sense over the rule.


    Lame said...

    Don't forget "rape sheild" laws. They are intended to keep a rape victim's private life exactly that, private, and prevent defense attorneys from putting the victim's past on trial--to deal specifically with the act at hand and not prior acts.

    The problem with this is that women, and men, can with impunity, accuse anyone they want of anything at any time. And, if it is proven that the person made it up, the next time they accuse someone, that prior malicious accusation cannot be used against her/him in court to undermine their credibility. I can think of a specific instance (not in the USA but in the UK, where laws are very similar) in which a jury once it found out the woman who accused a man of raping her had previously fabricated another allegation which resulted in the falsely-accused man committing suicide, that the jury broke into tears. They had just found the newly-accused man innocent, and they were moved to tears that they nearly sent another innocent man to jail based upon the lies of a deragned woman. The judge in that case told the prosecutors that they should be fired for ever bringing the case, considering the woman's past false rape allegations, and that during the police investigation itself several of the woman's friends related to them that the woman had claimed prior to making the accusation that she was going to frame someone else for rape. The prosecutor, of course, said they were just doing their jobs. That seems to be a common excuse, "just doing their/our jobs." It's the new "I vvasss just folllowvving orders."

    KC Sprayberry said...

    Anyone hiding behind these particular laws by saying 'they're just doing their jobs' deserves th serve the same amount of time as their true victims, the imprisoned falsely accused. For more than 30 years, bad laws have grown worse because no elected official has the guts to stand up and say this is wrong. None of these laws are anything more than a self-serving platforms for their authors to point at and say. 'let me keep my job telling you poor taxpayers that you have no clue how to take care of yourselves.' Oh yeah. I'm on my soapbox now. There were problems in the previous laws but those were replaced with legal avenues of sending the innocent to prison and destroying their lives. English jurist William Blackstone said it best, "Better ten guilty persons escape than one innocent suffer." Too bad our legal system has forgotten this, and we let them until it is so bad we can no longer turn our backs.

    Doc Ellis 124 said...


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    Anonymous said...

    Today is election day in GA. Attorney General is one position being voted on, I am very curious to see if the new AG will pursue any dismissals or reprimands to the LMJC. I hope many people will send letters to them asking for an investigation. One of the candidates talked about
    **Prosecute public corruption and restore people's faith in government
    **Stand with law enforcement to keep us safe from drug dealers and sexual predators

    Now here in Catoosa County that could really be a conflict.

    We will see if the new AG has the "INTEGRITY" to do his job FOR THE PEOPLE OF GA!!!!!!!

    Can you please post again the address to the AG to send letters to and I hope that all concerned citizens of Catoosa County will sen d letters to him asking for an investigation.

    Trish said...

    When the legal system is committing more crimes than the criminals they are prosecuting, we have a big problem!!! As soon as the new governor, etc. are in place, I plan on writing them and will continue to write until something is done. I hope all my fellow Georgians will do the same!!

    liberranter said...

    None of this is surprising. Federal law, after all, has become nothing more than a bludgeon by which to perpetuate and extend the Police State.

    KC Sprayberry said...

    Anon 9:50. If the current AG is going to do anything, he'd better do it quick. Thubert Baker is running for governor but didn't indicate he wanted in the AG race prior to the deadline, so if he loses in the primary today, a given by how low he is in the polls, he's out of a job come January. But I doubt he'll do anything about the players in this case; the reinstatement of TC's teaching license was meant as a political gain to garner votes in an area he totally ignored during the trial - the timing of that particular decision is too convenient.

    Angie Granger said...

    Does anyone know when the vote is for Dade Co.? Particularly the sheriff race??? If anyone knows please email me or let me know somehow.!!!! Thanks!! And again, out appeal was denied. We have filed a reconsideration motion because in the opinion it read that they did not have copies of the interviews or the tapes. What???? It was all in the record when our atty.'s assistant went down to the office of the appeals court and checked the record. How is this possible???? I am going to try to blog the opinion on my blogpage. You just can't believe it. Its not only the counties. As it appears to us.....they all cover each other's butts!! Someone please explain to me how the opinion says they didn't have the paperwork, but when the assistant went to check, it was all there!??!!??!!??!

    KC Sprayberry said...

    That would probably be the same thing as Judge Graham's assistant having the copies of the file while on vacation in FL. Keep pushing. Forcing them to admit someone was very wrong is the first step. If there was a paperwork snafu on their end, hopefully, they'll readress the issue without you having to wait too long.

    Anonymous said...

    We need to have some billboards in the ( LMJC )North Georgia counties that will help educate the voter to vote non incumbent. I know of some who would certainly be willing to help monetarily if someone will be heading up such a project. These need to be in place a few weeks before the November election.

    volfan69 said...

    I try to stay away from "celebrity" news because I'm just not into that. However, this thing with Mel Gibson and his former girlfriend and their custody battle comes to mind. (It is hard to miss all of the info about it if you want to watch news.) Anyway, the woman has put out all of the tapes of conversations and pictures of her teeth where he was supposed to have hit her. She also says she has a picture of the baby with a bruise where he hit the child. Now I ask all of you, with the first strike of the hand against you wouldn't you have gone to the police? Would you have continued to tape conversations and listen to him supposedly rant and call you names and be afraid of him? I would have gone to the police and the hospital immediately!

    I am not a fan of Mel Gibson. I don't know if he actually did these things or not. My point is that it appears that the woman is trying to frame him or make up evidence for her case. She would do well in the LMJC with all that she supposedly has against him. I bet Arnt and Gregor are foaming at the mouth wishing they had this case. It appears to me that this is the kind of publicity they would like to have. It also points to what some people will do to try to get the court to side with them. The entire mess is disgusting.

    volfan69 said...

    Oh, my point is that I am one that believes you are innocent until proven guilty. As guilty as Gibson looks in that mess he still has the right to a fair trial just as Tonya had. I think that there were many more than we realize that had Tonya guilty before she could prove her innocence.

    Anonymous said...

    I am tired of people such as Jennifer Gasaway, mad at the world because she has a special needs child, continuing to run her mouth about Ms. Craft and her supporters. Shut up already!!!

    Anonymous said...

    Who is Jennifer Gasaway and where is she running her mouth??

    Kaye said...


    According to the bio I found, Sheriff Patrick Cannon was elected in 2004. In Georgia, terms for sheriff are 4 years so I assume then that he was re-elected in 2008.

    Today's election is a primary election; the general election is on Nov. 2nd this year. Even though this year won't be a presidential election, there is still so much hanging in the balance.

    Oh, and yeah, when the time comes, I'll "Vote No to Retain"... just in case judge Outhouse is here doing a little leisurely reading. :)

    Anonymous said...


    Add the AEDPA to your list of federal laws that destroy the presumption of innocence and put form over substance. We've gone pretty far off the rails at this point.

    Here's a list of recent blog posts by Jeff Gamso that explain the issue far better than I can:

    Gamso for the Defense

    Anonymous said...


    Add the AEDPA to your list of federal laws that destroy the presumption of innocence and put form over substance. We've gone pretty far off the rails at this point.

    Here's a list of recent blog posts by Jeff Gamso that explain the issue far better than I can:

    Gamso for the Defense

    Cyril Lucar said...


    I just got back from vacation yesterday and got caught up on your blog tonite. Good work brother!

    This might be somewhat off-topic, but I'm reading a book right now which illustrates well how well palpably false charges can stick even for hundreds of years even when there is ample evidence to the contrary readily available. The power of a (false) narrative can be overwhelming...for centuries.

    The book is called "Pirate Hunter" and it is about how the King of England commissioned a wealthy and respected businessman to hunt pirates and the captain fell victim to false accusations from people who harbored a malignant spirit towards him and he was hanged after an unfair trial and his name has been besmirched ever since: Captain William Kidd.

    When protection of the innocent is overwhelmed by the will to prosecute our favorite class of criminal, injustice rolls down like a tidal wave of sewage.

    Anonymous said...

    anon 2:43,please don't tell me Jennifer Gasaway is another Sunday morning christian who trash talks people the rest of the week.I always thought she was sweet,but maybe not.Please say what you know.She was nothing more than Ridgeland white trash,what could she say about anyone?

    William L. Anderson said...

    Who is Jennifer Gasaway?


    Great to hear from you. I got a copy of the Book of Church Order and see exactly what you mean by a "malignant spirit." Some very good words in that section!

    johnlichtenstein said...

    The presumption of innocence is completely outside of mainstream thinking, and has been for some time. Remember it was 85 when AG Meese said "If a person is innocent of a crime, then he is not a suspect."

    johnlichtenstein said...

    This is a known failure of democracy, described by Plato.

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