Several lawyers who know Mr. Nifong say he is no showboat and is a highly ethical prosecutor. But other lawyers said he was too rigid, too inflexible. Julian Mack, a lawyer in Durham who represented a member of the lacrosse team who was not charged, said: "He jumps to conclusions, makes up his mind, and that's it. His personality is that he's very stubborn."What do you have to lose? It's frightening to think of a prosecutor taking that attitude. And it seems that hell is already demanding payment.
[H. Wood Vann, a lawyer in Durham,] said Mr. Nifong could drop the case, but the political price would be high. "He'd have hell to pay from the African-American community," he said. "They'd say, 'Give her her day in court. What do you have to lose? If you lose, at least the jury made the decision.' So he's kind of stuck."
June 12, 2006
"His case is going to hell in public opinion. He's suffering death by a thousand cuts."
The NYT looks at the long, puzzling silence of Michael B. Nifong, the prosecutor in the Duke lacrosse team rape case:
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The saddest part of this is that the African-American community wants to stand behind this woman regardless of any evidence (or lack of) of guilt. Much like the OJ case. This shouldn't be about racial justice. This should be about whether or not a rape occured.
Peder - groupthink is part and parcel with identity politics. You see it at work, too, in the William Jefferson case: here, stripped to the bare essentialls, is a situation where the CBC cannot look beyond the race of the criminal and see the criminal. That they have chosen to stand behind him is indicative that their good judgement in refusing to stand by Cynthia McKinney (who, by the way, is also in grand jury limbo) was but a passing phase.
This recent George F. Will column is on-point.
What does Nifong have to lose?
Nothing but his integrity.
What do the people of Durham have to lose?
Women who have been raped will face more public disbelief, and their motives will be impugned.
Scottsboro Boys, in reverse.
It's not just Durham. Women everywhere are hurt by this. After so much work, for decades, to overcome the entrenched belief that women lie about rape, this case is quickly reviving all the old suspicions. This is very, very harmful, far beyond the scope of Nifong's geographic domain. And I don't think it does black people any good to stimulate the belief -peder expressed.
From the NYT:
"But because the judge who issued search warrants did not know of the contradictory statements, defense lawyers now argue, all of that evidence should be excluded at trial."
Has the Supreme Court ever held that the exclusionary rule is so broad as to exclude evidence obtained under a warrant, when evidence surfaces subsequent to the issue of a warrant as to call it into question? That seems an astonishingly overbroad assertion; I realize it doesn't fit squarely into the good faith exception, but surely the exclusionary rule doesn't reach this situation.
Perhaps this case will finally break the dam and pursuade states to give anomynity to people accused of rape. It continues to pique me that victims of false accusation have their reputations, careers and lives destroyed for - so far as I can tell - no good reason.
There should never be a presumption that a rape victim is lying, but until we're ready to junk the presumption of innocence, in such sensitive matters the accused no less than the accuser should have their privacy respected.
The thing is, women do lie about rape. Most of the time they don't, but it's only common sense to recognise that sometimes they do.
The point is it's already very, very hard to successfully prosecute a rape case, and this makes it even harder for the real victims. I don't think anyone's denying the existence of false accusations...
On the exclusionary rule:
"The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes "so attenuated as to dissipate the taint." Murray v. United States, 487 U.S. 533, 537-8 (1988) (citing cases). But what the defense team is arguing here is not that the search was illegal (which, being that it was pursuant to a warrant, they could not), but rather, that the warrant was wrongly issued. Are there any cases where the court has extended the exclusionary rule to cover such instances?
David,
Where is the 'Rev' Al Sharpton and Jesse Jackson in all this?
I googled "Duke al sharpton" and "duke jesse jackson" and came up with lots of relevant hits.
On the subject of I say let it go to it's conclusion. Nifong can say he let justice run its course.
Thomas Sowell did an excellent article a month ago, the DA wants to wait a full year before bringing the case to trial. As Sowell said so well:
Suppose, for the sake of argument, that the players are guilty. What is the point of letting a bunch of rapists remain at large for another year? What about the dangers that they would pose to women on or off the Duke University campus?
Now suppose that the players are innocent. Isn't it unconscionable to have this damning charge hanging over their heads for another year?
yeah, take it to the jury - the fat is in the fire now and I think this will hurt women/rape victims in the long run if the evidence is ruptured like a bad hernia as some are saying it is
I don't know how the laws work in North Carolina, however, I wonder if there is any way for the state Governor or Attorney general to step in and review the case or at least force the prosecutor to show his evidence to them to verify that he indeed has a case.
Does anyone know?
Jon:
"Why not go the other way and stop giving anonymity to the accusers?"
Before I respnd to that, can you give us your best argument for stripping rape victims of their anomynity?
Pat: now I have some lunchtime reading. ;)
This case is in worse shape than the indictment of an NBA star in Colorado a year or so ago in another weak rape case. In the Colorado case, of course, the racial roles were reversed. Perhaps for that reason, the defendant there got somewhat better treatment in the media when the case first became public. Even as the credibility of the "victim" in the Duke case has been shredded, the defendants have still routinely been portrayed in a very negative manner.
As the Colorado case slowly fell apart in public, the prosecutor eventually found a way to drop the criminal charges despite the highly public manner in which the case had been pressed. One way or another, it is becoming increasingly clear that Nifong has an untriable case, and unless he is completely self destructive, Nifong will be forced to look for a face-saving way to get out of this disastrous indictment.
There is certainly lots of blame to go around here. But I don't share the concern that Ann and others have voiced, to the effect that the apparent miscarriage of justice in the Duke case means that "women everywhere are hurt by this." To the contrary, the fact that the Duke case has gotten as far as it has suggests to me that a corrective is required. As events in Colorado and North Carolina show, prosecutors today are quick to take action where there is an allegation of sexual assault. Many prosecutor's offices have set up special squads to handle these cases, and the folks staffing those squads are strongly inclined to accept the woman's vesion of events without much question. The fact of the matter is that most people, including the small number of women who want to use that system unscrupulously for financial gain, now understand that reality. One sees the same phenomenon in domestic violence cases. And there is zero chance that those attitudes by prosecutors and police departments are going to change in the short term, even though (as these events show) prosecutors would be wise to assess these cases a bit more carefully before pressing forward with charges.
For some perspective, contrast the approach taken by Nifong with how a case of auto theft is handled in NYC. Some years ago, my car was stolen from in front of my house in Brooklyn. When I learned of the theft, I walked to the local precinct to report it. The officer on duty told me that the NYPD could not process the complaint unless I could produce proof of ownership. As he explained, the NYPD requires such proof because they had observed a pattern of conduct in auto theft cases where someone would report a car theft and provide the make and plate number of someone they wanted to harass. The cops would dutifully arrest the guy, process him through the system (which itself is a harrowing experience), only to discover the hoax (and be unable to locate the perpetrator of the hoax). I don't know how many such cases occurred before the NYPD adopted that procedure. But I dutifully trekked home to find whatever documentation hadn't been in the glove compartment, and returned to the precinct to fill out the complaint.
False accusations of rape can be far more devastating than the kind of auto theft hoax that led to a change of procedures in NYC. It makes perfect sense to handle complaints of rape or sexual assault in a supportive and sensitive manner. But the prosecutors and cops are not doing women any favors by pressing ahead uncritically without first doing a competent investigation first.
And while it appears that Nifong deserves the criticism coming his way for what may well have been a politically motivated rush to prosecute, the conduct by the administation at Duke University looks even worse. The manner in which these defendants were pilloried and summarily convicted in the press by professors and administrators at Duke was shameful.
Re: "The real lesson in this will undoubtedly be case specific. Women should not remove their clothes at a fraternity in front of horny men. Following this rule, rape is certainly not going to occur there."
In a similar vein, men should beware of the consequences of hiring a stripper. Avoiding this activity ensures the absence of related jail time.
Pat:
My first-glace reaction would be that, even assuming it was correctly decided (a Blackmun opinion opposed by the presence of a Rehnquist dissent naturally opens doubt to someone of my proclivities), "the rule announced [therein] has a limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be accorded." Franks, 438 U.S. 154, at 168.
I would think that Franks can be distinguished to some extent. Doesn't that case hold only that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request," id. at 155-6 (emphasis added)? Thus, surely the mere fact that a statement turned out to be false doesn't necessarily void the warrant; isn't the threshold question therefore whether a statement made, that later turned out to be false, was made in good faith, or whether it was made either deliberately or negligently?
In other words, didn't Franks say that a warrant may be challenged where it is premised - in part or whole - on affadavits which contain inaccuracies attributable to deliberate or negligent evasion of the truth, whereas in this case, the question is whether a warrant may be challenged where it is premised - in part or whole - on affadavits which contain statements which later turn out to be false, but which were made in good faith at the time? "When the Fourth Amendment demands a factual showing sufficient to comprise probable cause, the obvious assumption is that there will be a truthful showing . . . This does not mean 'truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct . . . But surely it is to be 'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id. at 164-5 (internal quotation marks ommitted). To challenge the warrant, "[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof," id. at 171, which again presupposes that what is being challenged is the ingenuousness, not the accuracy, of the claims on which the warrant was premised. Perhaps I am misreading (or perhaps the NYT is simply misrepresenting their position), but here, the defense seems to be asserting precisely what the Franks Court denied, viz., that a warrant can be challenged merely by virtue of later revalations of fact.
The position of the CBC is distressing, and disingenuous. They're painting Pelosi as targeting a black representative with ethics complaints, and in doing so, they ignore that Pelosi pressured a white rep, WV's Alan Mollohan, to resign his position on the ethics committee while he is under investigation for his handling of appropriations funds. I'm furious that Jefferson and the CBC are willing to compromise the 2006 elections, and also the needs of Louisiana as Congress is dealing with money for Katrina recovery.
Pogo,
I agree, and having said that, and at the risk of receiving great grief because of the source (incendiary as usual), I call your attention to a Coulter piece on the topic:
http://www.humaneventsonline.com/article.php?id=14178&o=ANN001
However the Duke lacrosse rape case turns out, one lesson that absolutely will not be learned is this: You can severely reduce your chances of having a false accusation of rape leveled against you if you don't hire strange women to come to your house and take their clothes off for money.
Also, you can severely reduce your chances of being raped if you do not go to strange men's houses and take your clothes off for money. (Does anyone else detect a common thread here?)...
Yes, of course no one "deserves" to die for a mistake. Or to be raped or falsely accused of rape for a mistake. I have always been unabashedly anti-murder, anti-rape and anti-false accusation -- and I don't care who knows about it!
But these statements would roll off the tongue more easily in a world that so much as tacitly acknowledged that all these messy turns of fate followed behavior that your mother could have told you was tacky.
Not very long ago, all the precursor behavior in these cases would have been recognized as vulgar -- whether or not anyone ended up dead, raped or falsely accused of rape. But in a nation of people in constant terror of being perceived as "judgmental," I'm not sure most people do recognize that anymore.
sometimes she makes sense
In addition to harming other women who have been raped, giving this women her day in court, without evidence and against wisdom, will likely harm her as well. Testifying in a rape case is no joy, and the publicity is going to be painful as well. It's a bad thing all around.
Women should not remove their clothes at a fraternity in front of horny men. Following this rule, rape is certainly not going to occur there Excellent to know that as long as women keep their clothes on, they're not likely to be raped by frat boys. And it relieves men of responsibility to act with honor as well, so we're all happy now. Thanks for that excellent advice, David.
The Sarge sez:
"at the risk of receiving great grief because of the source (incendiary as usual), I call your attention to a Coulter piece on the topic"
You know, I think that one of the most frustrating things about Ann Coulter is that from time-to-time, she comes out with an exceedingly pursuasive and/or perceptive article that transcends her run-of-the-mill stuff and demonstrates that there's more to her than silly OTT hyperbole. Yet it happens only briefly before she reverts to type, which is a shame: she clearly has the intellect to be something more than the right's answer to Howard Stern.
Nifong wanted to get elected, this was the way to do it. Blatantly self-serving? Absolutely. "I have no doubt a crime was committed here." Shameless, but what do you expect from politicians?
My only question is how would it possibly serve the NYT's interests to bring up this case. I don't watch TV anymore (other than Apprentice)...is this case still in the public consciousness?
The weight of the publicly available evidence certainly seems to indicate that no rape took place. If this does go to court, the accuser should be required to testify and answer questions about her differing versions of the events. Also, since the police claim that medical reports indicate physical trauma related to forcible sex, she should be required to answer allegations made by her driver. Considering the damage her accusations have caused to the reputations of the accused, the additional harm she endures should be considered self inflicted.
"Excellent to know that as long as women keep their clothes on, they're not likely to be raped by frat boys."
Women who don't walk around the ghetto at night carrying clear plastic grocery bags stuffed with twenties are also less likely to be robbed.
You have the right not to be robbed/raped/etc., but it makes sense to take upon yourself some simple precautions. e.g. keep boobies and delicate porcelian vases away from drunken fratboys unless you wnat to risk disaster.
If I were king I'd let Nifong press on regardless, for any reason whatsoever. With, ah, one catch: if he's wrong, and more importantly a jury of his peers decides he should have known he was wrong, then the falsely-accused defendants can collect whatever economic damages they suffer -- say a round million apiece -- from him personally.
The defendants are personally responsible for their behaviour at the party. I'd like to see a system where representatives of the government are equally personally responsible for their behaviour. If the boys raped the girl, let their lives be ruined. But if Mr. Nifong (metaphorically) rapes these boys, let his life be ruined also.
Knowing that a blatantly false accusation would lead not merely to a temporary loss of prestige, or to the prickings of conscience, but to lasting personal ruin would induce Mr. Nifong to make very, very careful decisions about prosecuting, in which the provable guilt or innocence of the party accused would be of the highest priority, and considerations such as politics or personal ambition of the lowest. I rather like that idea.
Fatmouse, David said "following this rule, rape is certainly not going to occur there," indicating that's all that's needed, is for women to keep their clothes on. Women attend parties at fraternities, and rapes do occur, without the women doing a strip routine. His comment was facile.
And, in this case, these men (they are adults after all) contracted for a service, which the dancers provide. Men attending strip clubs are expected to follow the rules, and the presence of nude or nearly nude women is not an invitation to rape. I agree it is unsafe for dancers to work away from the clubs, without escorts, but it's also no guarantee against assault. There's only one person who can absolutely ensure no sexual assault occurs, and that's the person capable of and considering it. If such a person wants to rape, the absence or presence of clothes is no factor.
The article says he's a 27-year prosecutor. Kind of awkward phrasing.
Mary said
Really think there's going to be a civil settlement in THIS case ? I don't see it.
If things turn out the way they are heading, I'd hope there would be a civil suit against the AV, the Police and the DA.
"Now every woman who claims rape will have to be held up to this case as an example to prove that regardless of it not being a rape for this dancer, it was for her."
Sounds like the most basic premise of the justice system to me...
"This is the sequel to the Tawana Brawley affair. Where is the 'Rev' Al Sharpton and Jesse Jackson in all this?"
Jackson's already offering her a scholarship.
Gender and racial politics converged, easiest way to sum it up.
Explain why the woman shouldn't be charged with a crime.
Ann, are people arrested if they file a police report of a theft, and say who they think was involved, but the police investigation can't turn up evidence enough for a charge to be filed? I'm not interested in defending this accuser, but rather in figuring out where the threshhold is for charging her with a crime.
People involved in a fight often file competing charges that boil down to "he hit first" and "no, he did!" When the dust settles, is one charged with lying?
What are the possible charges that could be filed against her? Or would this be better dealt with in civil court?
What an almighty mess this is, the usual miasma of dull human tragedy. Science won't solve this dilemma, it appears, so we're reduced to they said/she said, to be decided based on credibility.
And, as usual, your politics seems to determine your position here. I'm past understanding this. Are we so balkanized now that we no longer share similar goals for our criminal justice system? Must it right wrongs over against assigning blame and meting out penalties? Is there a black truth here, versus (and always versus) a white truth?
I ask because i do not know, and because I am white, feel proscribed from commenting on race matters, but can only mutter to myself.
Does anyone have a link to a poll or article on how this case is perceived in Durham after the recent defense motions and police report disclosures?
At first I read that the community was dividing on black/white lines and becoming polarized. If that was true, is it still the case?
In addition to harming other women who have been raped, giving this women her day in court, without evidence and against wisdom, will likely harm her as well. Testifying in a rape case is no joy, and the publicity is going to be painful as well. It's a bad thing all around.
If the woman is lying about being raped, then I'd call this just desserts.
If the woman doesn't know whether she was raped -- which, from the reports in the press, is a distinct possibility -- then you may be correct. But if her recollection is that clouded, what is the point of putting her on the witness stand? Is Nifong really that sadistic?
If the woman knows she was actually raped, then one can hope that a guilty verdict would bring vindication. On the other hand, a not guilty verdict would be the worst possible outcome. But, frankly, based on the reports in the press, I think it quite unlikely she was actually raped.
Re: Elizabeth
What are the possible charges that could be filed against her? Or would this be better dealt with in civil court?
Probably best left to a civil suit for malicious prosecution. On the other hand, in at least some jurisdictions, there seems to be a criminal variety of malicious prosecution. See here, for example. Don't know about North Carolina, though.
Re: "Can you back this one up or explain further?"
As this case has unfolded, the liberals took one stance, the conservatives another. At Althouse, it was easy to see.
Re: "Being raised in an integrating (and integrated) area, I never could understand the self-imposed silence of white people..."
Interesting. The rules are pretty plain to me, based on the social opprobrium meted out for transgressions.
The rule? White males don't discuss race. Ever. White males are by definition racist, and any disagreement merely proves you are racist. Same thing for gender issues. Just try to react otherwise at a company diversity function, and see how long it takes before you're packing your stuff in a cardboard box before the security officer escorts you out of the building for the last time, where you're "forgotten but not yet gone." (apologies to Ben Folds)
What happens to the right to a "prompt and speedy trial" when the DA suggests kicking it down the road for a year?
How can this be conscionable, let alone just?
It is, perhaps, less blatantly political than his saying, "We'll try it the week after the election," perhaps, but not by much.
Hatcher said...
What happens to the right to a "prompt and speedy trial" when the DA suggests kicking it down the road for a year?
That speedy trial stuff is the 6th Amendment of the US Constitution. Not the NC Penal Code.
Rape is a state crime and subject to trial in a state court. Hence Nifong.
When I was in college, at a small Eastern liberal arts college, we had the assumption that if a male was charged with rape, he would be expelled. There was no investigation. There was no presumption of innocence. You were simply guilty when charged.
I personally hope this case is hugely messy and ends in an innocent finding so that men who are falsely accused can hold this up as an example.
Hey, anybody remember the first time we talked about this? It was back before the whole blog got cut and paste quxxo cancer again.
Dahlia Lithwick told us all the Duke "rape" proved what monsters all our, and by inclusion, my innocent sons are.
Hey Dahlia, it's been a while, but !@#$% you one more time.
Here's the old thread. It makes terrific rereading. George Bush isn't Hitler in it. Dahlia Lithwick is an ignoramus
Thanks for the explanation, David. Also, I'd prefer you address me by my name. I don't go by Lizzie.
(although it would be very unlikely, as I suspect this accuser is judgment proof).
That's why they invented garnishment!
Or can they garnish her wages on a malicious prosecution suit? I don't know the general thrust of the law on this point or the specific law of North Carolina. Clearly, though, some of the athletes' families have money and anger to spare, so if it can be done, surely one will make the attempt.
It seems to me, that none of us are in the position of knowing what the presecutor does. It's rather presumptuous to say what he should or shouldn't do, not knowing what he knows.
There's a reason that cases like this are decided in a court, not in the media.
Does this case have no merit? Maybe. But until he actually puts on a case, we won't know or not.
Did he go to law school with Ronnie Earle?
Jobob,
Your left off five of the better issues. As I recall them:
1. Terrible photo ID process that ensured that she would pick a player. Violating established processes.
2. That there were 2 photo ID sessions and that she didn't pick the third, dare I say, "victim", or should I say "perp", out the first time.
3. When she picked him out the second time, she said he had had a mustache at the party. Never had a mustache.
4. The second victim/perp for which she was 100% positive, has a very good, date/time stamped with photos and witnesses alibi that he was elsewhere during the only possible rape window.
5. Photos of her bruised before she danced. Photos of her smiling as she leaves after being "gang raped" ?
“It seems to me, that none of us are in the position of knowing what the presecutor does. It's rather presumptuous to say what he should or shouldn't do, not knowing what he knows.”
That’s a common line for defenders of the prosecutor. Here’s the problem I have with it. For all the talk that the he might be holding back evidence, even after the prosecutor stopped talking, information that supports his case has been able to come out. When tests found that DNA on the woman’s fingernails matched one of the people who is accused, that information came out. Now, the fingernails came from the guy’s wastebasket since he lived at the house, so I don’t see that as proving much, but still it got out into the public.
In a rape case acquittal, at most, you normally can’t prove that somebody’s guilty. There are two people in a room. There’s not usually a video camera. You can’t prove what happened, but you can’t say normally without a shadow of a doubt that the person who’s accused didn’t do it.
This is reaching the point where, at least with 2 of the people, you can say without a shadow of a doubt they didn’t do it.
I’m sure it would make me a little [if only a little] less hostile to the prosecutor here to hear what else he had, but at this point even if he has a Duke player come forward on his side, I don’t see how a court convicts Seligman or Evans.
"'Give her her day in court. What do you have to lose?'"
There comes a point where a case is frivolous enough that you don’t bring it to court. If some guy went to the police and made an outrageous charge--say, that you had mugged a homeless guy and gone on a murder-shooting spree at Grand Central Station--and, in response to this-you can show:
time-stamped photos of where you were when you were supposed to have committed the crime
you can show a cop went by the area at that time and saw no evidence a crime was committed
you can show that the person who accused you changed the story a bunch of times
you can show that the person couldn’t pick you out of a line up-but, a couple weeks later, when it came out on the internet that your family has deep pockets (as happened here with Duke) that person can suddenly identify you
you can show that the person’s description of you never matched what you looked like, you can show that DNA that should match you if the accuser was telling the truth in the report doesn’t match, you can show he had a history of making the exact same claim before, you can show a friend of the accuser who was with the guy at the time said the story was a crock.
If a prosecutor is handed a case like that, the prosecutor doesn’t destroy your reputation, waste a court’s time, waste the time of the police, and destroy his own reputation by bringing a case like that to court--much less decide to push the case off in court to a year later, giving you time to walk the streets and commit the crime again or, if you’re innocent, give you a year to wait around until you’re cleared of the charge.
“People involved in a fight often file competing charges that boil down to "he hit first" and "no, he did!" When the dust settles, is one charged with lying?”
If somebody who reports a crime is merely mistaken or can’t prove it, that’s not a problem. If you can show that someone intentionally filed a false report to police-that is a crime, and in a case like this, jail time should come with it. At this point, if on the first day in court the case is thrown out, the Duke players are going to have this follow them for the rest of entire lives. When they’re 40 and up for a promotion, somebody’s going to do a background check on them and this is the first thing that’s going to come up. At least one of the 3 has already been fired from the job he had lined up after graduation because of this. I’m actually willing to believe these guys were jerks at the party, but if they were, the proper response is not to go to the cops and have them plastered across the network news as rapists. If the woman has made a false claim, the lesson that she’s learned, so far, is accuse three guys of rape --> get revenge for people being jerks to you --> get a possible civil suit --> and get a full scholarship to college along with it. If this woman’s lying, and I think she is, she deserves to spend time in jail.
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