| Judge Tjoflat's Perspective; from KC, June 2007 | |
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| Tweet Topic Started: Mar 11 2010, 10:33 PM (327 Views) | |
| Quasimodo | Mar 11 2010, 10:33 PM Post #1 |
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http://durhamwonderland.blogspot.com/2007/06/judge-tjoflats-perspective.html THURSDAY, JUNE 21, 2007 Judge Tjoflat's Perspective The Honorable Gerald Bard Tjoflat, a judge with the Eleventh Circuit Court of Appeals and Duke Law alumnus (Class of 1957), recently addressed a group of law school alumni about the case—in highly perceptive remarks about both the case and the surrounding events. The case itself, Tjoflat noted, “was a classic example of a racially-motivated mob mentality, stirred up by a demagogue who played the race card, drawing on the tensions, anxieties, and grievances that demagogues like to exploit for their own purposes. His purpose, of course, was to get elected.” (snip) Tjoflat found two cases comparable to the lacrosse affair—the Scottsboro Boys case, and the fictional tale of To Kill a Mockingbird. Both featured “racial unrest whether manifested openly or just lurking beneath the surface waiting to be unleashed as pure hatred,” which provided “a perfect setting for this sort of mob mentality.” Such problems are compounded by the election of judges, creating a timidity on the bench in which judges are reluctant to rein in prosecutors, no matter how egregious the behavior. In North Carolina, the situation is even worse, since the case management system and prosecutors’ control over the court calendar tilts power heavily away from the judge and toward the district attorney. Tjoflat observed that Nifong’s behavior built off the established prosecutorial culture: “Prosecutors like Nifong—who had been in the Durham D.A.'s office for 27 years—don't do what he did unless they are absolutely confident that the court will give them free rein. This is especially true in a case, like the Lacrosse Case, in which the result will be reflected in the ballot box.” Nonetheless, Nifong’s conduct was extraordinary and clearly poisoned any Durham County jury pool; indeed, Tjoflat noted that he had been “on the bench for nearly 39 years and have never seen the like of it.” In a perfect world, Tjoflat reasoned, Judges Stephens or Titus would have acted upon Kirk Osborn’s May 1 recusal motion. In his mind, “any judge reading the motion would have concluded (1) that Nifong had engaged in conduct that would surely result in discipline and (2) that Nifong was likely to suborn perjury or otherwise obstruct justice in order to obtain a conviction and thereby confirm his pre-indictment condemnation of the accused. In short, Nifong was operating under a clear conflict of interest. At the very least, it appeared that he was—sufficiently so that the court should have heard the motion. But the court never heard or ruled on the motion.” Why? Because Stephens and Titus were unlikely to challenge Nifong’s control of the court docket. (Defense counsel eventually withdrew the motion, for tactical reasons, after the case passed to Judge Smith.) Tjoflat also blasted the North Carolina courts for not stopping the case by scheduling a prompt hearing on suppressing the lineup, which everyone involved knew was unconstitutional. Again, he suspected, political concerns explained judges’ timidity. |
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| Quasimodo | Mar 11 2010, 10:37 PM Post #2 |
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(cont.) Nifong, Tjoflat understood, had his enablers, and the identity of some of these enablers should concern all Duke alumni. The Group of 88, the judge noted, “claim that their intent was not to prejudge the case, but rather to call attention to long-standing issues on campus. Countless editorial writers and commentators—both before and after the N. C. Attorney General declared the accused innocent—have emphatically disagreed. (snip) What should Duke do now? Tjoflat offered three broad recommendations. First, “Our students need to know that what the N.C. Bar and the A.G. did was to administer some experimental medicine to a sick system. When the day comes that the Bar has to act as it did in this case, lawyers, law professors, editorial writers, politicians, and anyone else supposedly interested in the administration of criminal justice has to ask, ‘What is going on here? Why is our system malfunctioning?’ At the recent law alumni meeting, the faculty put on a program which focused on this case from an 'Ethics' point of view. If our law faculty doesn't expand its approach to the discussion of the Lacrosse Case to include the shortcomings of N.C.'s criminal justice system, the roles the blogosphere, talk radio, and cable news networks played in prompting the Bar to act as it did, the faculty will be shortchanging our students - and I say with regret - being a tad disingenuous." Second, Brodhead and the Board of Trustees “need to apologize” for the Group of 88: They need to tell the Duke community and beyond that 'The Duke 88' issued their statement at an inopportune time, and in so doing, disregarded the accused's right to a fundamentally fair proceeding. It is true that a college campus is a place for open debate, discussion, and disagreement, but there is a critical difference between using accusations like those made here as a jumping off point for on-campus classroom and private discussions, and making broad public statements likely to incite vitriol at a time when all the facts are not known and somber contemplation is called for. These professors need to be educated about the Bill of Rights and the requisites of a fair criminal proceeding. They also need to consider whether they can treat Duke's athletes, especially the lacrosse players, fairly and impartially. If there is the slightest doubt that they might not be able to do that, they should say so. Third, Tjoflat urged reasonable voices—such as the attorneys on Duke Law School’s Board of Visitors—to remain engaged with the University and work for reform, rather than to express distaste with the Group’s behavior by abandoning the school. (snip) Tjoflat’s analysis is candid and well-reasoned. Both North Carolina and Duke would be wise to follow it. But if—as seems increasingly likely—Brodhead maintains his determination not to apologize for the Group’s conduct but to continue to facilitate it, how should reasonable Duke alumni respond? |
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| abb | Mar 12 2010, 05:44 AM Post #3 |
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Very, very important commentary. |
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| Quasimodo | Mar 12 2010, 09:06 AM Post #4 |
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I am not far from thinking that we should maybe include a study of the federal civil court system also, which is vastly in need of reform if the process can be so delayed that persons without means are unable to sustain their complaint (especially one against a government agency) long enough to get their case heard by a jury. |
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| nyesq83 | Mar 12 2010, 09:58 AM Post #5 |
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I can't believe I have never seen nor heard of Judge Tjoflat before - thanks a million, Quasimodo! |
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| Quasimodo | Mar 12 2010, 10:22 AM Post #6 |
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http://www.law.duke.edu/magazine/2006fall/profiles/judge_bard.html Judge Gerald Bard Tjoflat ’57 by William F. Jung The Last Unlikely Hero: Gerald Bard Tjoflat and the Jacksonville desegregation crisis – 35 years later (snip) Exercising judicial diplomacy In the face of these national and local pressures, the Jacksonville school board asked Judge Tjoflat to delay or modify the second phase of integration. Tjoflat would have none of it. He knew that the unpleasant medicine of reordering a school system was best taken without hesitation once, rather than piecemeal. The time for “gradual adjustment” or “deliberate speed” was well past. Although he spurred hesitant school board members, and jailed those committing physical disruption, Tjoflat’s leadership was not bullying. He had a court of appeals looking over his shoulder, but more importantly he knew that losing public opinion would cause failure. He convinced Jacksonville’s main newspaper, the Florida Times-Union, to publish the final operative order in its entirety in their daily edition. This order, in plain language, devoid of legalese, has been labeled by historians Frank Read and Lucy McGough a “masterpiece of judicial diplomacy” in its ability to respond to the various concerned parties: white parents, black parents, the appellate court, the school board, and the teachers. The Fifth Circuit affirmed Tjoflat in short order, finding a “solid basis” for his conclusions. Judge Tjoflat was careful with public opinion because he knew that persons of good will would enlist in the difficult task. And indeed they did. Citizens from all walks of life worked together to make the social upheaval as negligible as possible. His task, too, was made easier by an able school superintendent, Dr. Cecil Hardesty. Most important for the schools case, the Jacksonville/Duval County merger caused a new, nonpartisan school board to come into existence in 1969, without prior involvement in the earlier illegal system. The case took a toll on the judge. Although the community responded well as a whole, a vocal minority vilified him. U.S. Marshals guarded the Tjoflat family, day and night, after credible threats were made. An “Impeach Tojo” billboard was erected. (snip) |
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| jarms | Mar 12 2010, 10:56 AM Post #7 |
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Judge Tjoflat's portrait hung in the lobby of Duke Law School when I was there. (Rumor had it that it replaced a portrait of the disgraced Richard M. Nixon, a Duke Law alum.) All the law students knew of him. |
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| abb | Mar 12 2010, 11:15 AM Post #8 |
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Not any more, it appears |
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