why morrison made a smart move
Embattled Attorney General Paul Morrison has called for an independent investigation of the allegations against him by the Kansas Office of the Disciplinary Administrator. Morrison pledged to cooperate fully with the investigation. The move was smart politically, as it makes him look like someone with nothing to hide. But it was also smart legally. To understand why takes a bit of explanation, and a short detour into the thrilling world of disciplinary procedure.
In Kansas, when an ethics complaint is filed against a lawyer, it is referred to a Review Committee. The Review Committee reviews the charges and the evidence, and decides whether there is probable cause to continue--i.e., a reasonable belief that the lawyer committed some kind of misconduct.
If the complaint makes it out of the Review Committee, it is then scheduled for a hearing. The hearing is in front of a three person panel, and proceeds a lot like a normal civil case. Witnesses are called and evidence is introduced. After both sides have presented their case, the panel makes a decision, just like a jury in a normal case.
But here's the important part: the panel must find misconduct by clear and convincing evidence. "Clear and convincing" is considered less than "beyond a reasonable doubt," (the standard in a criminal case) but more than "the preponderance of the evidence." (the standard in a normal civil case).
In a normal civil case, like, say, a sexual harassment claim against a supervisor, the standard of proof is "the preponderance of the evidence," which basically means "more likely than not." This is the lowest standard of proof in the law. It means that you could theoretically win a case by showing that there is a 51% chance that what you're saying is true.
"Clear and convincing," on the other hand, is the highest standard of proof you can get in a civil case. Like many legal terms its exact meaning is hard to pin down, but most definitions involve some variation of "highly likely" or "highly probable." In numeric terms, think a 75% chance that something is true.
Now here's the rub: the original sexual harassment investigation against Morrison is subject to the "preponderance of the evidence" standard.
Right now, the claim is being handled by the Equal Employment Opportunity Commission, a federal agency that investigates discrimination in the workplace. The EEOC will investigate the charges, and determine if they are supported by the preponderance of the evidence. If the EEOC finds that they are, they have two options: (1) prosecute the case against Morrison themselves in civil court, or (2) decline to prosecute, in which case Linda Carter can file a private civil case against Morrison. Whether the EEOC or Carter prosecutes the case, they will have to prove that Morrison sexually harassed Carter by the preponderance of the evidence.
The bottom line is that it will be much harder to prove that Paul Morrison harassed Linda Carter in a hearing before the Office of the Disciplinary Administrator. Much of the case is going to come down to Linda Carter's testimony, pitting her word against Morrison's. But it is highly unlikely that her testimony alone can establish sexual harassment, or other misconduct, by "clear and convincing" evidence. Unless she was recording telephone conversations or has some other smoking gun, Morrison stands a very good shot at being vindicated.
Another added benefit of the disciplinary hearing is that it will force Carter's legal team to tip their hands early. They will have to come forward with all of the evidence of sexual harassment that they will be using later to sue Morrison. This will give Morrison a definite advantage in preparing for any future trials, and in finding evidence to dispute her allegations.
The Disciplinary Administrator investigation will likely be completed long before the EEOC's. If Morrison is found innocent, he will have lots of political cover, and he will be in a good position even if the EEOC finds evidence of sexual harassment. Morrison is going to stand and fight, and he may yet live to see another day.
In Kansas, when an ethics complaint is filed against a lawyer, it is referred to a Review Committee. The Review Committee reviews the charges and the evidence, and decides whether there is probable cause to continue--i.e., a reasonable belief that the lawyer committed some kind of misconduct.
If the complaint makes it out of the Review Committee, it is then scheduled for a hearing. The hearing is in front of a three person panel, and proceeds a lot like a normal civil case. Witnesses are called and evidence is introduced. After both sides have presented their case, the panel makes a decision, just like a jury in a normal case.
But here's the important part: the panel must find misconduct by clear and convincing evidence. "Clear and convincing" is considered less than "beyond a reasonable doubt," (the standard in a criminal case) but more than "the preponderance of the evidence." (the standard in a normal civil case).
In a normal civil case, like, say, a sexual harassment claim against a supervisor, the standard of proof is "the preponderance of the evidence," which basically means "more likely than not." This is the lowest standard of proof in the law. It means that you could theoretically win a case by showing that there is a 51% chance that what you're saying is true.
"Clear and convincing," on the other hand, is the highest standard of proof you can get in a civil case. Like many legal terms its exact meaning is hard to pin down, but most definitions involve some variation of "highly likely" or "highly probable." In numeric terms, think a 75% chance that something is true.
Now here's the rub: the original sexual harassment investigation against Morrison is subject to the "preponderance of the evidence" standard.
Right now, the claim is being handled by the Equal Employment Opportunity Commission, a federal agency that investigates discrimination in the workplace. The EEOC will investigate the charges, and determine if they are supported by the preponderance of the evidence. If the EEOC finds that they are, they have two options: (1) prosecute the case against Morrison themselves in civil court, or (2) decline to prosecute, in which case Linda Carter can file a private civil case against Morrison. Whether the EEOC or Carter prosecutes the case, they will have to prove that Morrison sexually harassed Carter by the preponderance of the evidence.
The bottom line is that it will be much harder to prove that Paul Morrison harassed Linda Carter in a hearing before the Office of the Disciplinary Administrator. Much of the case is going to come down to Linda Carter's testimony, pitting her word against Morrison's. But it is highly unlikely that her testimony alone can establish sexual harassment, or other misconduct, by "clear and convincing" evidence. Unless she was recording telephone conversations or has some other smoking gun, Morrison stands a very good shot at being vindicated.
Another added benefit of the disciplinary hearing is that it will force Carter's legal team to tip their hands early. They will have to come forward with all of the evidence of sexual harassment that they will be using later to sue Morrison. This will give Morrison a definite advantage in preparing for any future trials, and in finding evidence to dispute her allegations.
The Disciplinary Administrator investigation will likely be completed long before the EEOC's. If Morrison is found innocent, he will have lots of political cover, and he will be in a good position even if the EEOC finds evidence of sexual harassment. Morrison is going to stand and fight, and he may yet live to see another day.
posted by siege @ 9:10 PM
1 Comments:
At 12:20 PM,
Anonymous said…
Great writing. Very Sad about Paul. He was my criminal law teacher years ago. It is hard to believe he left his ethics at the door. However, Ms. Carter was the Director of Administration, negligence befalls on her too. What is her motive to bring Paul down? He is not first man to scurry around to cover his tracks, nor will he be the last. The age old dance between male and female.
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