More Cooney analysis

UPDATED 4/27 BELOW THE FOLD

Some commenters who read this post on the U.S. Attorney’s decision to drop charges against Philip Cooney (MSB ’10) want more clarification about that decision and the reporting in my recent article on the subject, and I’m happy to oblige (sorry it took so long, but it is, after all, the last week of school). Keep in mind that this analysis is only based on my reporting on the case since last fall and a four month stint working at a legal magazine covering a variety of court cases, so nothing in here is gospel.

First of all, why drop the charges now, after so long? Channing Phillips, the Principal Assistant U.S. Attorney (essentially the second-in-command of the office), explains it sufficiently in this quote from my article:

“To support the filing of a criminal charge, the standard of proof is probable cause. To obtain a conviction, though, the standard is much higher, that is, proof beyond a reasonable doubt, which is why with every case we continue to investigate,” Channing Phillips, Principal Assistant U.S. Attorney, wrote in an e-mail.

Basically, it’s easier to charge someone with a crime than convict them of it. That’s the legal standard on the books. At some point in the discovery process (as both sides marshal their evidence and present it to each other before trial), the attorneys prosecuting the case decided that they couldn’t clear that second standard, which Professor Paul Rothstein of the Georgetown Law Center told me could be represented as being more than 90 percent sure a person committed the crime.

The discovery process usually requires going over a good deal of information and records from a variety of sources. It is my understanding that the time period between Cooney’s arraignment and the dismissal of his charges wasn’t unusually long, given the necessary work to be done and the demands the clogged court system puts on prosecutors and police investigators. It is possible, as Rothstein mentioned, that the prosecutors were trying to force Cooney into a plea bargain, but having covered this case since September, I know that Cooney’s lawyer, Danny Onorato, was confident from day one that his client was innocent and would not be pleading guilty, so I doubt that prosecutors were really expecting a bargain.

I can’t tell you whether the charge was originally brought to satisfy the community, as one commenter put it. I will say that at the time Cooney was arrested, very few people were even aware that a hate crime had even been committed, which suggests to me that the authorities were not responding to public outcry.

There were also objections to the quotes from Rothstein discussing the context of the case. It was my feeling that it would be better to include well-informed commentary from an expert in the field than to leave our readers without any information at all for the purpose of context. As to making the leap that the prosecutor had evidence that could place Cooney at the crime scene, as one commenter put it, the decision by the prosecutor to charge Cooney in the first place means that they did have some evidence that could put him at the scene of the crime (namely, the identification by the victim). However, they determined that this evidence was not enough or that it could have been undermined, and this is why they chose to drop the charges.

There is also the suggestion that we simply can’t trust prosecutors. I can’t make that judgment for you—as in any news article, it’s up to the reader to decide whether my sources are credible. But I will note that the U.S. Attorney’s office here in D.C. handled the case with much more discretion than District Attorney Mike Nifong in the 2006 Duke case. They did not allow for a media circus, leak evidence or make false representations that we are aware of now. While the justice system can be politicized, it’s my view that this case was not, despite public knowledge of Cooney’s father’s time as a Bush administration official. I think the national media may have played up the case because of that, but I don’t think these prosecutors did. I’m curious, if any readers think this was a political prosecution, why do you think that?

As to the court documents mentioned in my story, it is possible to obtain almost all of the filings in the case by simply going to D.C. Superior Court and requesting them. The specific document that I referred to in my case was a subpoena motion filed by the defense that included the sentence, “Early access to [the various records requested] will assist Mr. Cooney in challenging [the victim’s] credibility at trial.” Even without that document, I hardly think it shocking to propose that a defense lawyer would be interested in challenging the credibility of the only publicly-known witness for the prosecution.

A final note: Unfortunately, we simply do not know exactly what happened on the morning of September 9, and probably never will. There was an assault (no one contests that). Prosecutors apparently had reasonable evidence to charge Cooney with a crime, but did not feel they had enough to prove beyond a reasonable doubt that he committed it. Cooney’s lawyer maintained his client’s innocence throughout the case, but always declined to offer an alibi. Now the charges have been dropped, the investigation is over, and everyone involved has to move on as best they can.

I hope this answered some of our readers concerns; I have no doubt that any further questions will crop up in the comments, and I’ll do me best to answer those, too.

UPDATE:

A few more questions have arisen.

First, regarding Danny Onorato’s quote to the Washington Blade, I’m as confused as you are. I have asked Mr. Onorato numerous times where his client was at the time of the assault, and he always declined to comment, even when I offered to quote him only as a “source close to Mr. Cooney.” The last time we discussed this was last Tuesday, as I worked on my most recent story. I e-mailed Mr. Onorato today and hopefully will have some idea about his decision to speak to the Blade, which I will duly share with you.

Regarding talking to the investigators, unfortunately neither MPD nor the U.S. Attorney’s office have made the actual detectives and prosecutors involved in the case available to me. I left messages for certain AUSAs and police officers I believed to be working on the case, but they did not return them. I can’t speak to standard arrest procedure, but I do not know that Mr. Cooney wasn’t interviewed prior to his arrest; it may have been considered legally necessary to arrest him in order to interview him if (perhaps under legal advice) he was declining to cooperate with the police. All that is just speculation, however.

As to the situation regarding the affadavit, I can clear that up a little bit, thanks to court and police documents. A friend of the victim’s overheard another student discussing the assault in class and told the victim, who in turn used the student’s Facebook.com friend network to identify Cooney. Subsquently, the victim also identified Cooney in a police photo-lineup. The confusion in your comment is about who the police interviewed. The friend of the victim’s maintained when interviewed, and to my knowledge continues to maintain, that the conversation ocurred. On the other hand, one of the students discussing the assault (which one is not publicly known) told Onorato that in his conversation with the police he denied that the conversation ocurred, resulting in a “he-said-she-said” situation, made even more tenuous by the fact that both parties were friends with the parties involved in the investigation.

In a motion, Onorato suggested that the police intentionally left the result of that interview out of their affidavit. Given that we don’t actually know what the student told the police (the information about what he said became public through Onorato) or if he was the student whose profile the victim used to identify Cooney, I can’t speculate on what should and should not have been included in the affidavit. I’m not sure that if it was included it would have changed the judge’s mind about issuing the arrest warrant. My understanding is that the specific probable cause came mostly from the photo line-up.

Regarding time to trial; my understanding is that Cooney was arraigned promptly and had several pre-trial hearings. During his arraignment, the only hearing I was present for, Onorato and the prosecutors had various discussions about when to hold future hearings and both parties seemed satisfied with the schedule despite delays regarding access to witnesses and documents and a prosecutorial resassignment. Onorato hasn’t complained to me about the length of time taken by the prosecutors to do their jobs except for his conviction that his client shouldn’t have been charged at all. While I’m sure it was extremely unpleasant for Cooney to have this hanging over his head as long as it did (seven months), I don’t think it violates the 6th Amendment.

Finally, Chavez, none of what you write about the Duke situation had anything to do with the what happened in this case. All the parties involved in this issue seemed to act professionally, and if there were any ethical problems on the prosecution side, Onorato would have been the first to point them out, as he did with his motion regarding the affidavit in support of the arrest warrant.

7 Comments on “More Cooney analysis

  1. Thanks for the follow up, Tim. The Washington Blade coverage does include a quote from Cooney’s lawyer saying something to the effect that he was at a small gathering with friends.

  2. One last question – were you ever able to question the original investigators about why they never questioned Cooney before arresting him and if that is standard procedure for a 19-year old with no record; or why they withheld the interview from the person who was supposedly “overheard” discussing the incident and denied having that conversation, in their original petition to arrest Cooney? You seem to have a lot of knowledge about the operations of the police and attorney’s office and your coverage was pretty detailed; maybe you had gotten a chance to ask those questions?

  3. Thank you for the further elaboration.

    The 6th Amendment guarantees the right to a speedy trial. In California (where courts are surely as clogged as anywhere) the state must begin TRIAL within 60 days of bringing charges; otherwise, the case must be dropped. (Defense attorneys often ask for extra time to prepare, but the state in most circumstances is not allowed this.)

    Yet, for a misdemeanor, the DC US Attorney needs 8 or 9 months to determine there is inadequate evidence? People hundreds of miles away, reading about the curious ID process, made that call almost immediately after the charges were brought.

    Prosecutors who delay trials force defendants to spend huge sums (thousands of dollars) on defense costs (court appearances don’t come cheap; neither do lie detector tests, depositions, witness statements, etc.–each at several hundred dollars per hour, plus secretarial help, copies, etc.)

    Prosecutors know this; someone in Cooney’s position would have had no choice
    but to accept a plea deal if he wasn’t prepared to spend –$15,000? (a guess)–
    over nine months. And if his ‘trial’ jury wasn’t convinced, or was biased against him
    (quite possible), if convicted he would face a much stiffer sentence (6 months in jail) than if he just confessed (even for something he didn’t do) in exchange for a fine and probation.

    That’s how justice is administered in today’s America. It’s just like your local traffic offense–better to pay the fine rather than go to court and fight it.

    And prosecutors know they will never pay a price for this. Nifong, for all his actions, spent a total of one day in jail. It was a joke.

  4. Do I believe the prosecution was politically motivated?

    There is a substantial possibility.

    In the Duke case, the Chairman of the Trustees (who is also a current Under Secretary of the Treasury), Robert K. Steel, is alleged in the present lawsuits to have told the other Trustees that a conviction of the lacrosse players would better serve the interests of Duke (vis-a-vis community relations). To that end, he is alleged to have instructed the Duke University police to falsify records, conceal evidence of their investigations, and cease to look for evidence of innocence.

    One of the Duke defendants, Finnerty, was tried in DC as a result of being charged in Durham (a ‘violation’ of his DC diversion agreement). Witnesses against him changed their stories from what they said in depositions; police officers ‘remembered’ things that weren’t in their notes. The chief defense witness was prevented from testifying. Eight federal attorneys plus nine additional staff took part in the prosecution–of a misdemeanor, in which the defendant was charged with shouting at someone and threatening him with his fists (but not striking him) after he himself had been struck from behind and knocked down. (For comparison purposes, the OJ Simpson prosecution used generally a total of 13 attorneys and staff.)

    Was that a political case? Was the prosecutor avoiding criticism that he wouldn’t prosecute a rich white preppie kid, or that the rich white kids always get off?

    Was Cooney prosecuted for the same reason?

    In DC? I could well believe it.

  5. Thanks again for your response.

    I’ll just make these two further comment before I wear out my welcome:

    “While I’m sure it was extremely unpleasant for Cooney to have this hanging over his head as long as it did (seven months), I don’t think it violates the 6th Amendment.”

    If ever a defendant has to plead guilty because he cannot afford to wait
    out the court, then the 6th amendment has been violated. Cooney could afford
    to pay out thousands; what happens to those who can’t?

    “Finally, Chavez, none of what you write about the Duke situation had anything to do with the what happened in this case. ”

    Duke is the tip of the iceberg. Think Cynthia McKinney, or Patrick Kennedy. Jamie Gorelick (then deputy US AG) was ready to charge the LAPD with civil rights violations, if OJ Simpson had been found guilty The feds are now willing to look into the NYPD shooting of Bell. (OTOH, the DOJ refused to investigate any civil rights violations in Durham.) None of these decisions have anything to do with the merits of the cases, but have everything to do with maintaining public perceptions of justice. Given that, I have no trouble thinking that a rich preppie kid could be deliberately prosecuted for hate crimes for the same reasons, whether guilty or not.

    Thanx.

  6. Thanks for the thorough update, Tim. Please accept my compliments on your diligence in your original reporting and not just rehashing everything that was already written. You seem very committed to your work. I still disagree that the Rothstein quotes were in any way appropriate – they just seemed like wild speculation that continued to undermine Cooney and cast aspersions on his innocence, with no basis in fact, when he was just cleared of the charges. Also, it is a matter of fact that the police never attempted to contact or interview Cooney before arresting him – Onorato complained about that from day one, and rightly so.

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