Search For Justice In Durham Leads to the D.A.

By Michael Spinner

On March 5, 1770, British soldiers - in an effort to thwart a relatively minor protest in front of the Boston Customs House - fired on a mob of colonists, killing several of them. The incident would become known as the Boston Massacre and serve as one of many catalysts of the American Revolution. What you may not know is that the legal proceedings that followed also provided one of the fundamental principles upon which our system of justice was founded. There was no doubt that the British soldiers shot and killed several unarmed colonists. But the "Red Coats" were hated in the colonies, even before the crime was committed. Finding proper legal representation for the accused soldiers was considered impossible. That is, until one of our greatest patriots stepped forward to provide a legal defense.

John Adams was a Boston lawyer, and a leader of the patriots. He would one day become President of the United States and be remembered as a Founding Father of our nation but he took the case and offered a vigorous defense of the British soldiers. While he fervently allied with those who were murdered, and bitterly opposed the British, Adams took the case because he believed that the lack of a fair trial for the British soldiers would constitute a blow to the cause of self-government. During a time when it would have been perfectly acceptable to walk the soldiers to the nearest tree and hang them, Adams offered the best possible defense in the name of democracy and justice - a most defining moment in the birth of the American legal system. At least the concept was set forth that even the most hated criminals deserved a fair trial. No matter how many witnesses were present and no matter what evidence existed, any accused criminal was fundamentally innocent until proven guilty. This was and still is the basis for our nation's justice system and a foundation of American democracy itself.

Despite whatever challenges have emerged, nearly 240 years later we hold to that concept that we are all, if accused, innocent until proven guilty. Sometimes as a society we want to convict before the trial, but our laws protect us from ourselves. Every citizen has the right to be tried in front of their peers. The burden of proof is on the prosecution who must demonstrate guilt "beyond a reasonable doubt" before an individual can be convicted. As a result, everybody is safe from unfair prosecution, tyranny, and injustice.

The story is all too familiar by now. Two African-American strippers appeared at an off-campus house for a lacrosse team party where alcohol was flowing and things got out of hand verbally, according to eyewitness accounts. Later that evening police were summoned to a Durham parking lot because a woman had evidently opened a stranger's car and fallen asleep inside. According to police accounts the woman was "passed-out drunk" but "not in distress". The intoxicated woman interacts with the police and is taken to the police station. It is at the police station, apparently, that the first mention of an attack occurs and subsequently rape is alleged. Within days Durham District Attorney Mike Nifong took that claim and ran on a total media blitz claiming medical evidence, DNA evidence, and everything short of the Zapruder film to prove the lacrosse players' guilt all before he had any idea if he was, in fact, correct. Indictments were handed down, and - had you asked most of the general public in March - it appeared as if a guilty verdict was imminent. Race and gender charged protests and candle lit vigils were paraded by the permanent throng of media camped out across from the small white house where the party occurred. This, while all along, Nifong was botching the line-up identification, never actually met and spoke with the accuser, had no substantive evidence to prove the crime took place, and hid evidence to the contrary. But, he did get re-elected, appeared on CNN a bunch, and is now a household name.

So now, more than nine months later, Nifong has dropped the rape charges, not because the DNA evidence was inconclusive. He knew that a long time ago, but Nifong still pushed forward with the case. It even turned out that the accuser had unprotected sex with a male (or five) around the time of the rape. Of course it wasn't any of the lacrosse players. Witnesses made it clear that the suspects were never alone with the accuser and their DNA was nowhere to be found among the orgy of others'. But that's not why the rape charges were dropped. Nifong dropped the charges because the accuser can no longer say with any certainty that she was penetrated by a human but maybe an object, and thus the legal standard for a rape was not reached. But the remaining charges also carry considerable prison terms if the new story sticks. And it is a new story. Nifong went on TV in March claiming that the accuser was raped, "orally, anally, and vaginally" and submitted a five-page statement from the accuser to back up his claims. Nifong based his entire claim of a certain conviction on DNA evidence that never actually existed and an accuser's story that he never heard first hand or questioned.

In the meantime, a potential national championship season was cancelled for Duke University, a head coach who led the team to the NCAA Championship game a year earlier lost his job, the reputations of three young men have been shredded nightly on national TV, and one of the finest academic institutions in the nation and the community surrounding it has suffered greatly. If you ask any layman about lacrosse, based on media coverage of this case, he or she would probably say something to the effect of, "it's a sport played by a bunch of elitist, racist, rich, snobby white people." The actions (or inactions) of this DA have done more than inconvenience three young men. The antics of Mike Nifong have caused true and discernable damage to a great sport and made a joke of our legal system. And we all, in the interests of justice, in deference to the truth and out of respect for the privacy of the alleged victim, had no choice but to let the case play out so slowly and painfully, further anguishing and tarnishing our game and this team with each daily detail. It became evident along the way that the meandering pace and sloppiness of the investigation was in the best interests of the DA politically and the Press financially. But we trusted that the authorities, namely Nifong and the press, would seek the truth and fairness ultimately if not immediately for the sake of all parties. But the election is over, the press has turned on Nifong, the whole case smells bad, Inside Lacrosse's Legal Analyst is actually starting to sound intelligent and well... enough is enough already.

Let's get one thing straight, there was nothing wrong with Nifong investigating a rape charge. Rape is rampant on college campuses. As under-reported as the crime is, rape statistics are stunning and pose an actual calculable risk to every girl in college. It is a crime so rampant, so stigmatized and so hard to prosecute that any claim needs to be taken very seriously and investigated fully. All of the facts we, the public, know now about the night of March 13, 2006 should have been disclosed to the investigator in an effort to determine whether arrests needed to be made subsequent to the charges. BUT, all of the sordid, embarrassing details should have been disclosed and dealt with by the prosecutor in private, in person, and in short order, to protect all of the potential victims. All the basic details we now know from interviews, police reports and the DNA labs should have been known BEFORE the decision was made to arrest anyone. When a rape accusation was lodged that night, it was Mike Nifong's responsibility to investigate whether OR NOT a rape IN FACT occurred, and THEN to take action if applicable. It is obvious from all press reports that the making of that precious distinction was at the very least conducted sloppily, callously, publicly and after the arrests were made and our young stars were paraded about in handcuffs.

I'm not na´ve. I know that Nifong has a staff and that the police do most of the investigating, but he's the boss and he was doing interviews the day the investigation started. He presented himself as the face of this case, claiming that the boys on the team were "clamming up as a group, like a gang" and that he would prosecute the case himself. In fact, I've never seen a police officer interviewed by any press on this case. He owns this one fully. It was his responsibility to check evidence, speak to witnesses, interview the accused, and decide whether or not there were legal merits to the claim of rape. And, he did not do any of this. He heard an accusation and for whatever reasons - be it re-election, blind ambition, or bad advice - pushed forth the case as if it were a fact that a rape took place before he knew anything at all. According to reports, during the early stages of the investigation, Nifong gave between 50 and 70 interviews during a one-week period - with everyone from the New York Times to E-Lacrosse - claiming with confidence that a brutal rape took place, that the team was uncooperative and that DNA evidence would prove his case. All these things were false, but he said them to us and everyone else. We did not run with his "opinion" as most other news organizations did, starting a feeding frenzy of O.J. Simpson proportions. Had you watched CNN or MSNBC anytime early in the spring, the account would have implied an imminent slam-dunk conviction of these rich, selfish, brutal lacrosse players. The liberal newspapers and magazines across the country convicted the three players, the school, and the game with no evidence at all. Think that can't happen? Remember Richard Jewell, the man who saved lives at the Atlanta Olympic bombing and was falsely accused and hounded by the press for years? The news is so much more fun when you make it up.

Then, as the case began to unravel, Nifong went silent. For months, we heard nothing from the man, not a word. No updates on the case, no comments on developments occurring outside of his office - not a word. When inconsistencies in the story of the accuser developed to the point where even the Durham Police said she was, "not credible", Nifong took no action. When a police report surfaced stating that the accuser first reported "being groped," and then changed her story en route to the hospital, Nifong took no action. As media outlets from across the country reported faults in the prosecution's case, Nifong stayed in the shadows, and never came out until Friday when he dropped the charges. This was, of course, after the election and in the Christmas news cycle where it got as little press as it could have.

And now, we're left with the "Duke Lacrosse rape scandal" which is no longer a "rape scandal" because no rape took place. There are two charges remaining that carry significant legal penalties should the trio be convicted, but every legal analyst interviewed by every television station in my area has said that a conviction on these charges is doubtful at best. After all, the accuser had zero credibility before the hidden DNA results were revealed to show the semen of 5 different males on her body the night of the alleged crime, none of them in attendance at the party. The "witness" is shaky and provides perhaps the most mitigating evidence of all in her account of the accuser wanting to go back into the party AFTER the alleged rape because "there's more money to make in there". And lastly, there's no physical evidence of a crime at all. In fact, the physical evidence has one of the suspects somewhere else entirely. One journalist speculated that Nifong has damning evidence, like an affirmative statement from a 2006 Duke lacrosse team member, and that he is keeping it from the defense, which would be illegal. Or perhaps the defense is keeping the relevant evidence from the press while Nifong is under no obligation to disclose to the press any evidence of the case. Barring that unlikely scenario the best that he can hope for is a guilty plea to some sort of misdemeanor for public intoxication or providing alcohol to minors. I'd venture to say that the price has been paid tenfold by the accused trio already for these crimes committed by the entire party and most other college parties.

The true crime in Durham is still happening and will perpetuate. Nifong has caused more pain and suffering to the Duke families and institution, let alone these three young men than any physical crime could. Ask an accused rapist's mother or father. But it gets worse. Somewhere at some other college a rape victim isn't coming forward because of all the press about the likely false accusations and the tell-tale DNA tests etc. Somewhere in some other DA's office - every other DA's office - nobody wants to be the next Mike Nifong. When a prosecution for rape is truly appropriate, but the evidence does not line up perfectly, what will that next DA do? Let a probable rapist roam free while he hesitates to act? Our uncertainty is the actual legacy of the Duke Lacrosse Rape case that never was.

Two absurd extremes: A poster in the first days on campus asking for people to pressure lacrosse
players to talk and a pro duke lax stripper party at another college that doesn't even play lacrosse

Others are starting to notice the injustices in Durham and help may be on the way. Just today the North Carolina State Bar Association filed ethics charges accusing Nifong of violating four rules of professional conduct by making misleading and inflammatory comments to the press about the lacrosse players while under suspicion by his office. These charges alone may force him off the case and it is unlikely that another prosecutor would continue any charges in this case. Also this week the Duke President questioned Nifong's conduct and called for the DA to step down as prosecutor for this case. A North Carolina Congressman, Walter Jones, has requested that the U.S. Attorney General's office look into the conduct of the case from the line-up of just lacrosse players to the hiding of mitigating evidence from the defense. Prosecutorial misconduct carries no criminal penalty, believe it or not, but it looks as if Mike Nifong will be held accountable (whatever that means) for his actions. The accused Duke kids, their families, and the school should sue the man too. Of course, the threat of that type of civil legal action may be precisely what keeps him from throwing the whole case out.

The media, who enjoyed a feeding frenzy on the Duke Lacrosse trio - and in many ways the lacrosse community as a whole - should have their day to feed on Nifong once he steps down. They, of course should be punished for the damage they do all the time to the wrongly accused but they never are, so why should we expect that now. But the man charged by law in North Carolina to be the people's arbitor and deliver the promise of Boston's John Adams so many years ago - the prosecutor who told us on day one that "there was no doubt that a lacrosse player raped that girl" should be held accountable for both thinking it and saying it before he had any clue as to its voracity. In the name of Adams and in the countless names of future rape victims an example needs to be made of this case and the condemnation that results needs to resound as loudly as Nifong's 70+ interviews. A simple correction on page 2 will not suffice.

December 30, 2006

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