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:
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."

[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."
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.

75 comments:

-Peder said...

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.

Simon said...

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.

Pogo said...

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.

Al Maviva said...

Scottsboro Boys, in reverse.

Ann Althouse said...

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.

dick said...

Pogo,

Strikes me that the reason women who have been raped will face more problems is that this prosecutor is pushing forward a case that has little or no merits. Even the other dancer at the party says that no rape occurred at the party. She claims she was with the supposed victim all but 5 minutes and no rape occurred there.

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. Also there will always be the idea of why was she charging rape. Was it a date that went wrong and she is getting back at the guy or was it consensual sex and now he dropped her and she is getting back at the guy or was it really rape. It is a shame but since all the above have happened and are accepted or rejected in the individual cases, but since the false claim of the stripper against the lacrosse team it is more considered more likely than before.

The longer this prosecutor holds onto this false case, the worse it will be for women in the future. He loses his reputation to an extent, the women in the future lose justice for their cases.

Jim Clay said...

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.

Simon said...

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.

Simon said...

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.

knoxgirl said...

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...

Simon said...

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 said...

This is the sequel to the Tawana Brawley affair. Where is the 'Rev' Al Sharpton and Jesse Jackson in all this?

This case must be a dog if even they don't want to take part in it! I say let it go to it's conclusion. Nifong can say he let justice run it's course. Not such a bad thing. The truth will have a cleansing effect on all the nonsense.

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.

Getting drunk and wandering around the streets after bars close is a personal security hazard also.

Joe said...

I can see the DA's point in giving the "victim" her day in court, but there comes a point when reasonable doubt becomes a near certainty. The danger is, let's face the facts, a black jury convicting these guys because they are white, in the absence of any credible evidence. Just as a black jury freed OJ when there was DNA evidence pointing to guilt.

The Drill SGT said...

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?

Jonathan said...

Perhaps this case will finally break the dam and pursuade states to give anomynity to people accused of rape.

Why not go the other way and stop giving anonymity to the accusers?

Also, the commenter who pointed out that there is still a risk of (unjustified) conviction if the case goes to trial is right. Even if the students are found innocent, the ordeal of being publicly accused of a serious crime, and then of defending themselves in court, will be extremely costly for them.

Goesh said...

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

Sloanasaurus said...

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?

Patrick said...

Simon the answer is yes the Supreme Court has extended the exclusionary rule that far. Here is your case information:

"Under Franks v. Delaware, 438 U.S. 154, (1978), if a defendant can demonstrate by a preponderance of the evidence that the signatory of the warrant affidavit made a false statement (or omitted a material fact) either intentionally or with reckless disregard for the truth, then a court will consider whether the content of the affidavit, setting aside the false material (or including the omitted material), is sufficient to establish probable cause. If it is not, the search warrant must be voided and the fruits of the search excluded. Id. at 155-156; United States v. Pace, 898 F.2d 1218, 1232 (7th Cir.1990). And concomitantly, no good-faith exception can then apply." U.S. v. Merritt,361 F.3d 1005, 1010 (7th Cir. 2004).

Simon said...

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. ;)

Richard Dolan said...

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.

Pogo said...

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.

Simon said...

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.

Elizabeth said...

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.

The Drill SGT said...

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

Elizabeth said...

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.

Simon said...

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.

altoids1306 said...

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?

Patrick said...

Simon,

The NYT article references “records of interviews” between the second dancer and the police. My impression from the article is that these interviews took place before the police requested a search warrant. If the police knew of the second dancer’s statements prior to requesting the search warrant, then this could be a proper ground for a Franks hearing.

To be successful, the Defense must show that “the affiant omitted material facts with the intent to make, or in reckless disregard of whether he thereby made, the affidavit misleading. . . . The defendant must also show that the omitted material was ‘necessary to the finding of probable cause,’ i.e., that the omitted material was such that its inclusion in the affidavit would defeat probable cause. . . ” U.S. v. Shorter,, 328 F.3d 167, 170 (Cir. 4th 2003)

Without having seen the probable cause affidavit, it is difficult to tell the merit of the Defense motion. For example, the Defense motion could be well taken if the police included other statements from the second dancer or other witnesses which tended to support probable cause while at the same time selectively omitting any statements which tended to undermine or defeat probable cause.

stoqboy said...

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.

Chidemont said...

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?

What evidence was obtained under the warrant? That the accused were at a party?

Jonathan said...

Simon wrote:
--------------------
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?
--------------------

I think you mean: stripping people who bring rape accusations of their anonymity. I don't think the legal system should presume that the accuser is the victim. That's for a trial to determine. If the accuser is lying then it's the accused who is the victim. Seems to me there is a basic unfairness in favoring accusers in this way. There is also the problem of moral hazard, as anonymity lowers the cost of making accusations, which means there will be more accusations and more false accusations. I think it is right to treat someone who brings a rape accusation humanely. I do not think it is right to defer to the complainant by providing her with anonymity. Better to educate the public not to stigmatize rape victims than to attempt to cocoon the accuser at the expense of the accused.

David said...

IANAL, but it seems to me that this defense motion is unlikely to be upheld. However, filing the motion has been an excellent means of getting the defense case before the public. I wonder if that wasn't Seligman's lawyer's real goal.

TallDave said...

This case is very, very ugly. It's clear Nifong is pursuing this case for purely political reason.

This is what the Founders warned us about: the peril of democratic tyranny.

JoBob said...

Simon,

I would say that your ascertain is essentially correct, in reading Franks, 438 U.S. 154, at 168, that it would only result in the warrant affidavits being voided and the evidence connected to the warrants disallowed IF the underlying premise of the warrants were deliberate falsehoods or a reckless disregard for the truth. However I think the Defense has gone a long way, at least publicly, to making a prima facia case that meets the Franks test. The Durham police withheld contradictory evidence and witness testimony in order to pursue suspects they had pre-determined were guilty. What the Durham police did goes beyond "dressing up" their case to get a warrant, they pursued the Duke players exclusively, despite evidence that seemed to exonerate them or facts in evidence that indicate the "victim" may not be a victim. That would seem to constitute a reckless disregard for the truth IMO. and if the judge feels the same way, then it's goodbye Photos, goodbye DNA, goodbye case.

Fatmouse said...

"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.

Quadraginta said...

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.

Svolich said...

Mary wrote:
I wonder who really "wins" when things like this finally get resolved, and if anyone really learns anything by looking on ...

Well, remember the Kobe Bryant case got tossed when the AV settled her civil case, then refused to testify.

http://www.talkleft.com/new_archives/009892.html

Rumor is she got $5 mil. The AV in this case can file civilly and settle for half the defendant's lawyer's fees, and come out WAY ahead.

Elizabeth said...

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.

FXKLM said...

The article says Nifong is only 27. Look at the picture. Is that possible? That must be a typo.

Jennifer said...

The article says he's a 27-year prosecutor. Kind of awkward phrasing.

The Drill SGT said...

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.

Cutler said...

"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...

Cutler said...

"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.

Ann Althouse said...

Explain why the woman shouldn't be charged with a crime.

Elizabeth said...

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?

Pogo said...

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.

DRJ said...

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?

Kent said...

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.

Balfegor said...

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.

Pogo said...

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)

David said...

Lizzie; That is why I said "Case Specific!"

Although my reply may have appeared facile, it addressed the personal responsibility rule inherent in reaching a conclusion in the case, one way or the other.

The Duke guys may have had rape on their minds when they hired the stripper. On the other hand, the stripper may have had false rape charges on her mind when she took the job.

The jury decides on whatever facts are available and the competing credibility of the accused vs. the
accuser.

The criminal element is always looking for a weakness to exploit for personal gain/satisfaction.

If I am facile, you may be naive. It comes down to power. Men have civil power versus women with natural power. When the two collide, credibility and evidence are the last two standing.

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?

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.

The Drill SGT said...

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.

Strabo the Lesser said...

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.

Willj said...

I am not sure that false rape allegations are as rare as some commenters here believe. Kanin and several others have found rates upwards of 40%. If anything even approaching these numbers is true there is a LOT of lying about rape.

SippicanCottage said...

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

Elizabeth said...

Thanks for the explanation, David. Also, I'd prefer you address me by my name. I don't go by Lizzie.

Zach said...

"They'd say, 'Give her her day in court. What do you have to lose?'"

Your soul?

I don't see how you could live with yourself if you prosecuted somebody for a major felony without being 100% convinced of their guilt. What if you won?

Worse, what if you won by concealing some crucial piece of evidence that caused your own doubts?

Personally, I'm agnostic. But I think the real answer here has got to be something equivalent to "Just fear of standing before an almighty God."

HaloJonesFan said...

What amazes me about all this is that the Duke college lacrosse team had a house party where they all got trashed and hired strippers, and the big deal about the situation is that one of the strippers is claiming she was attacked.

I'm amazed that there is still a Duke lacrosse team. I'd think that the first response would have been to cut the entire men's lacrosse team for conduct unbecoming, and then worry about the more serious allegations. But, of course, then the alumni wouldn't have an excuse to get blitzed in the parking lot and live vicariously through the kids they bankroll.

Marghlar said...

Men have civil power versus women with natural power.

Wow. That's just a weird statement. What does it even mean?

---

This notion, that women should avoid situations in which men will have the opportunity to rape them, seems perilously close to saying that some men cannot help but rape. Women should be able to go safely anywhere that they like. I find it a little disturbing to blame a woman for arousing frat guys, who then impliedly seem obviously unable to refrain from rape.

I have no idea who is right or wrong in this case. I haven't followed it closely, but I doubt the ability of the public to get an accurate picture from press reports and selective disclosures. I have more confidence in a jury verdict than I do in anything I will hear on the news.

And if this was a false accusation, I'd be thrilled to hear of a succesful action for malicious prosecution (although it would be very unlikely, as I suspect this accuser is judgment proof).

But I question the speed with which many are rushing to assume that the prosecutor is acting unethically.

Balfegor said...

(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.

Daryl Herbert said...

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.


Drill Sgt, under the 14th amendment, a lot of our Constitutional rights were "incorporated" such that the States can't violate them.

So your state's legislature/governor can't pass and sign a law taking away your 1st amendment rights.

Daryl Herbert said...

Even if only .1% of women would ever make a false rape accusation, if those crazy lying wenches make (false) accusations at a much higher rate than women from the general populace make their (true) accusations, a significant portion of accusations will in fact be false.

Then there is the separate issue that you can't amortize false accusations. If three men are accused, and one is accused falsely, but you don't know which, the solution is not to say "okay let's punish each of the three equally, let's give them all 2/3 of the time in prison that they would normally get for a rape sentence."

So while the "rate" of false accusations can be taken into account, what really matters is whether this particular case is a true or false allegation, and no amount of number crunching can even assist in arriving at that. It comes down to the facts. In addition to being able to make statistical calculations and being able to perform bayesian reasoning and whatnot, it's also important to question whether or not a particular statistic matters towards whatever thing you're trying to figure out.

DavidE said...

Apart from the speed trial concerns, based on the accumulating evidence of innocence, there is also a strong case to be made of abuse of prosecutorial discertion by Nifong. While taking this case to trial will likely result in acquittal, the accused have a right not to be dragged through that process on what now seems like very dubious allegations. Am surprise that Nifong isn't taking a beating on this point alone.

Marghlar said...

That's why they invented garnishment!

Good point, Balfegor. I had been focusing on more traditionally economic motives for suit (i.e. getting money), and those don't really support suing for a garnished wage, because the trial is too expensive to make such piddling recovery worthwhile.

But a suit for spite -- that can surely happen, since plenty of these folks have money. Reminds me of a case I read once where two neighbors got into a high feud, and litigated the crap out of an easement for decades. By the time it was done, the winner had to sell their house to pay the legal fees. Ergo, no use of the easement.

Never underestimate the power of spite.

Aspasia M. said...
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Jeremy said...

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.

TR said...

Did he go to law school with Ronnie Earle?

JoBob said...

Well I knew it would happen. It was just a matter of time before someone mounted their charger and rode to the defense of the justice system in general, and the prosecution in particular, with the claim that we were all guilty of deciding this case without perfect knowledge.

It seems to me, Jeremy, that you position on our "rather presumptuous" argument, is rather pedantic. While none of us are in the position of the prosecution, we have access (through our legal system) to much of the same evidence and testimony that he has - not all mind you, but a goodly portion of it. And what do we now know?

We know that the Alleged Victim (AV) had been to three appointments prior to the Lacrosse party and had performed using a sex-toy on herself at one of them.

We know that the Alleged Victim (AV) claims she was she was hit, kicked, strangled, and raped, but the examining physician found no evidence of neck, back, chest or abdominal trauma, and no vaginal tearing. The only things the examination revealed were a scratch on her knee, a small cut on her heel, and some vaginal swelling, which according to forensic specialists would be consistent with the use of a sex-toy.

We know the second stripper (Roberts) refuted that a rape occurred and called it a "crock", further she claims to have been with the AV the entire night and even locked the AV in her Honda when she (Roberts) went back into the house.

We have a Defense argument that the Durham police withheld contradictory evidence and witness testimony in order to attain the warrants which got them the DNA evidence.

We have Defense testimony that the DNA tests showed material recovered from the AV matches a single male source who was not a member of the team.

We know that Nifong is up for re-election and needed a high-profile case to help him out in the primary, and this was it. Is it coincidental that now he's won the primary he wants to delay this case for a YEAR until after the general election, and to a time when people will have largely forgotten about it?

True, there is a reason that legal cases are decided in a court and not in the media, but don't go pissing in our cornflakes because you don't like the fact that we're having an intellectual (or pseudo intellectual) discussion about this case. It's human nature to be curious about these things, and a kibitzer isn't really needed to remind us that we're not on the jury.

David said...

Roger that Elizabeth. I defaulted to the usage of a friend who has the same name. Mea Culpa!

David said...

Marghlar;

That is my point exactly. There are predators out there constantly surveilling potential victims in a manner designed to cut the weak ones from the herd. If you, God forbid, accidentally fall into the orbit of one of these monsters, the only thing you have going for you is situational awareness.

If you really want to send a chill up and down your spine, log on to the local police department web site and observe how many RSO's (Registered Sex Offenders) live in your immediate area.

This is one of the subjects that I look forward to discussing on Althouse. Maybe I missed it because I am new to the site. The subject is the lenient manner sex offenders are treated in this country.

The Khalif of Ojai said...

Perhaps Nifong will call Tawana Brawley as a character witness for the "victim"......

The Drill SGT said...

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" ?

Stephen said...
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Stephen said...

“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.