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June 10, 2006
Dreyfus, Durham, and mob psychology
The rape case against the Duke University LaCrosse players looks crazier by the day. If these defense claims are true, the prosecution has a huge problem: DURHAM -- The exotic dancer who has accused three Duke lacrosse players of gang-raping her was drinking while taking medication that night, and had sex with at least four men and a sexual device in the days immediately leading up to the off-campus party, according to court papers filed Thursday.There's a longstanding principle in criminal law (the lead case is Brady v. Maryland) that the prosecution must disclose to the defendant whatever they have -- all incriminating as well as exculpatory information or evidence. Failure to provide exculpatory information so taints the case that the remedy is to throw the case out -- or reverse for a new trial. On top of this, it now turns out that the second stripper had originally characterized the victim's rape allegations as "a crock": DURHAM, N.C. — A second stripper in a rape case that rocked the prestigious Duke University told police early in their investigation that the alleged victim's allegations seemed untrue, according to court papers.It's looking like a very poor case surrounded by an enormous amount of highly inflammatory hype, and presided over by a politically motivated district attorney. I am reminded of Dorothy Rabinowitz's famous book, No Crueler Tyrannies. From the Amazon review: Americans tend to put great faith in their justice system but, despite the legal doctrine of the presumption of innocence, they also tend to assume that persons accused of crimes are in fact guilty. This book deals with the power of accusations, in combination with dubious expert testimony, to undermine a person's right to a fair hearing and result in the incarceration of innocent individuals. It focuses on some of the most public sex abuse prosecutions during the 1980's and 1990's and shows how justice was subverted by a combination of overzealous "experts," unfair limitations on the defendants' ability to present exculpatory evidence, and the vagaries of the appeals process. These cases, and particularly the Wenatchee prosecutions, are about as close as American justice has come to the Kangaroo courts of the former Soviet Union.Whether the Kangaroo courts are still alive and well -- and living in Durham, North Carolina -- or whether this is more a case of a Kangaroo media fueled by a mob scene and a crooked district attorney remains to be seen. Much of the inflammatory hype seems to stem from the illogical but stubborn idea that there can be such a thing as inherited racial guilt, and from a related desire to get even with past lynchings by means of a proxy role reversal. However, I think that's only a partial explanation of what's going on in Durham. When egos -- and power -- are at stake, the Dreyfus phenomenon tends to kick in. In the Dreyfus case, French officials saw the innocence of Dreyfus (a Jewish officer convicted on phony evidence in a shrilly anti-Semitic climate) not as a legal issue but as a dire threat to their power. Thus, they systematically covered up the evidence which exculpated Dreyfus, and it was only because of the intervention of outsiders like Emile Zola that the fraud was finally exposed. Might prosecutors and others with careers at stake in Durham be similarly unconcerned with whether the Duke La Crosse players are actually innocent? Might their motivation be altogether different from seeking justice? Far be it from me to say "J' accuse!" Hell, I don't even speak French. (I'll just stay tuned.) UPDATE (06/11/06): "I can't begin to imagine how the DA hopes to skate past all this at trial," says Tom Maguire, who also links to a report that the DA has decided to postpone the trial for an entire year!. (Via Glenn Reynolds.) Unbelievable. Be sure to read Darleen Click's comment below: If Nifong has one shred of obligation to his oath as a lawyer, he would have rejected the case from the moment of the blown photo-line up, or at worst, when the first DNA tests came back negative.(I think she's right.) posted by Eric on 06.10.06 at 11:44 AM
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Let me tell you the DDAs in my office have been aghast with this case from about...day 2? ... when Nifong started posturing infront of the cameras.
When a case has the potential to be a high-profile politically-charged case, that is exactly where the DA has to be the most scrupulous ... every procedure followed, t's crossed, i's dotted, et al.
If Nifong has one shred of obligation to his oath as a lawyer, he would have rejected the case from the moment of the blown photo-line up, or at worst, when the first DNA tests came back negative.
Like the "one bad cop spoils it for all" scenario, Nifong is a huge embarrassment for the honest DDA's who are tasked with evaluating cases for filing on daily basis.
I would say that faith is not misplaced. If one is dealing with honest DDAs and dispassionate evaluation based on evidence and proper procedure (ie did the cops follow their legal obligations?), the vast majority of filed cases DO involve "guilty" people. That's why the vast majority of cases are settled before they reach trial stage.
Nifong needs to be recalled and disbarred.