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For nine months, we've heard only from the defense in the
so-called “Duke Rape Case” - but few people know that while the
defense is talking up a storm about how the prosecutor has
“nothing”, the defense has refused to release a thousand pages
of the investigation. Reasonable people want to know what
they're hiding.
The prosecutor can't reveal evidence without risking sanctions
(such as dismissal of charges) for tainting the jury pool. The
defense is not subject to similar punishment, which is why they
can and do speak more freely in all high profile cases. This
double standard is why we should all be suspicious about whether
we're getting the whole truth whenever a defense attorney claims
there's "no" evidence.
The prosecutor, Mike Nifong, may have eyewitness statements from
the defendants' friends (after all, there were more than 30
other guys present) and pictures of the incident (we've all seen
the before and after pictures, maybe there are "during" photos,
too). If so, Nifong should be rewarded for respecting the
defendants' rights by NOT leaking the type of evidence that
could help him personally respond to criticism.
Other things to consider:
Many people on the prosecution side - not just Mike Nifong -
participated in the decision to bring charges and not one of
them - no police officer, no medical professional and none of
the attorneys working with Mr. Nifong have backed down even one
iota or raised any concerns about whether the case should
proceed to trial.
The decision to prosecute was not “political”. Mr. Nifong didn't
win the black vote and he lost much of the more influential rich
white vote. Clearly, the best political option for him
personally would have been NOT to bring charges. That he did
anyway suggests he has a strong case because statistics
consistently reveal that prosecutors disproportionately decline
to prosecute even valid rape cases when they believe they can't
win a conviction. They certainly don't want to waste their
budget on frivolous cases, much less frivolous cases that will
cost them a fortune because of the wealth of the defendants and
will likely bring great political pressure to bear on the
administration of justice. In short, powerful pressures would
have militated against bringing charges in this case if there
were truly "no evidence".
The Wilmington Journal reported last June that the victim
rejected over 2 million dollars from people “on behalf of Duke”
to back out of the case. If defense supporters can claim she’s
lying because she wants money, then others can assume she’s not
lying because she refused a big payoff!
The photo line-up was not unfair. Not all party attendees were
players and Duke's own president said that “many” players were
not at the party. Thus, it is false to say there were “no wrong
answers” when the victim was shown only photos of lacrosse
players during the initial identification process.
A prosecutor’s reliance on responsible others to talk to the
victim is proper. It protects him or her from being removed from
the case as a “witness”.
DNA evidence supporting the defense was not "held back" by the
prosecutor. The defense and the entire nation learned last
spring that DNA in the rape kit did not match the defendants.
Information that was “held back” involved other men's DNA and it
is unclear to this date whether that DNA was from recent or very
old sexual activity as reports indicate the samples were taken
from a variety of places, including the victim's underpants.
Microscopic fragments of sperms cells can survive even
laundering. This means the "other men’s" DNA could have been
from weeks or months earlier. This constitutionally protected
private information should never be disclosed unless a judge
deems it relevant. The defense argued at a hearing in December
that the fact the victim had sexual contact with other men
provides an alternative explanation for the victim's vaginal
injuries. The judge agreed and the evidence was ordered released
to the defense. This was not a violation of the defendants'
rights, it's called due process for the sexual privacy rights of
the victim and the "other men".
Days after the judge allowed the "other men’s" DNA to be
released, the prosecutor withdrew the “rape” charge, which under
North Carolina law consists ONLY of penile/vaginal penetration.
Other penetration crimes are covered by the remaining equally
serious “sexual offense” indictment. This may have been a
brilliant move because with no rape charge, the victim's sexual
past and the "other men’s" DNA is irrelevant - and the cause of
justice is spared a salacious and distracting sideshow.
Claims that Mr. Nifong should be investigated by federal
officials for violating the defendants' constitutional rights
are curious given that the judge handling the case has said
nothing critical of Mr. Nifong. If there were truly any
constitutional violations, the defense would have brought them
to the attention of the judge at the time of the alleged
infraction. That the defense opted against asking the judge to
take action and instead sought redress in the court of public
opinion speaks volumes about whether they sincerely believe the
defendants' rights were violated.
Similarly strange is the ethical complaint filed against Mr.
Nifong and signed by current or former defense attorneys (one
appears to be a Duke alum) alleging the prosecutor committed
numerous violations of his professional duties by making certain
public statements about the case. People who have watched this
case unfold are shaking their heads wondering why there wouldn't
also be a complaint against the defense attorneys for their
relentless, repetitive and profoundly unfair public statements
they have made at every turn since day one including the most
disturbing claim: “that there is no case”. All lawyers in North
Carolina are ethically obligated under disciplinary rule 8.4(c)
NOT to engage in dishonest conduct -- yet on December 23, 2006,
defense Attorney Wade Smith publicly called on Mr. Nifong, to
“end this suffering … end this case . . . because there is no
case to bring”. Attorney Smith knows that if there really were
no case, he would AND SHOULD demand an immediate trial to end
his client's “suffering”. But none of the defense attorneys
mentioned wanting an immediate trial during any of their recent
PR stunts.
And let's get real - the most serious ethical violation for a
prosecutor is the one that forbids them to bring a case where
there is, as the defense claims, no evidence. Yet in the many
pages of alleged ethical violations, there is no reference to
the provision that forbids Mr Nifong to proceed with charges
based on the absence of sufficient evidence.
Reasonable people might conclude that the reason Mr. Nifong is
not accused of violating that ethical provision is the same
reason he's being attacked on television RATHER than in front of
the judge handling the case. It would give him free reign to
reveal ALL the evidence in the case.
I don't know all the prosecutor's evidence but I'm certain the
victim, like any human being, deserves her day in court and I'm
certain the public has right to know the WHOLE truth before
deciding whether justice has been served. Let the jury, not the
pollsters, render judgment.
The author, Wendy Murphy, JD is a former sex crimes
prosecutor and adjunct law professor at the New England School
of Law, Boston, ph: 617-422-7410 / e-mail:
wmurphylaw@fac.nesl.edu |
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