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What’s left to say in Duke rape case?

Filan: The accused players in the Duke rape case could end up being the poster boys for justice, and become an icon for our criminal justice system, reminding everyone that the presumption of innocence is one of the most valuable jewels in our Constitution

I am writing yet again about the Duke lacrosse rape case. Can you believe we are still talking about this case? What could possibly be left to say?  

The reason I think people are sick of hearing about it is because most people have now made up their minds about this case, conclusively in favor of the players. There seems to be no case left against the three accused.

Initially, this case grabbed us by the throat and we glued ourselves to it because it appeared to be a shocking case about rape, class, gender, privilege, imbalance of power, rival schools, and stunning abuse by spoiled athletes at a prestigious school. Only now, perhaps we feel a bit ashamed because it sounds like the three young men accused have been falsely accused. While we initially feared that there may never be justice for the female, African American victim, who worked as an exotic dancer at a rival school, we now fear there was an injustice done to the three accused Duke lacrosse players.  

In an initial zeal for justice, District Attorney Michael Nifong, committed himself to making sure this victim was treated fairly and got her day in court. In so doing, the D.A. made some serious missteps with the media. And while those may have been initially forgiven, there were further gaffes and errors which compounded the original problems.  

The DNA failed to link the accused to the accusers. I was still not critical of the case because often we have to prosecute rape cases without DNA relying only on the victim’s testimony. The victim had changed her story several times, but I thought maybe she was so traumatized, inconsistencies may be explainable and understandable. One of the players had an alibi, but I am skeptical of alibi defenses in general. I thought the timeline had not yet been established and was too fluid to say for sure he was cleared. I wanted to wait and see how the alibi evidence played out. It was interesting, but not yet airtight in my mind.  

But here is where you lost me. Once the accuser said she could not say for sure whether she was even raped, resulting in the rape charges against the three defendants being thrown out by the D.A. in a surprise move just before Christmas, there was no longer any reason left to continue to prosecute this case.

Two charges are still pending against the three defendants: Sexual assault and kidnapping. In North Carolina, in order to prove rape, the victim must have been sexually assaulted by a penis. Once the accuser was no longer able to say that she remembered whether she was in fact penetrated by a penis, after stating in great detail how all three had raped her anally and vaginally, I thought the case was done.

I hate to say this, but I am now left wondering whether the two remaining charges conveniently conform to what little evidence is left: If she was not penetrated by a penis, that would explain why there is no DNA and no sperm or semen belonging to any of the accused, or for that fact, any member of the Duke lacrosse team. She had stated earlier that her rapists were not wearing condoms.

I sincerely hope that we don’t have a situation here where the charges are designed to conform to the evidence, once her original story could not be corroborated by the forensic evidence.  

The real problem now is that the prosecution’s case has completely crumbled and appears to be a complete hoax. If the accuser cannot testify as to whether she was raped because she cannot remember, then the damage to her credibility is so severe it warrants all the charges being dropped.  

This critical blow to her credibility comes amidst serious other problems with the case. The case has always been a difficult case to prove at best, but I was always willing to take the position that it had a right to proceed to trial because once a victim makes a complaint, it is not up to the D.A. to play judge and jury as to her credibility. 

A rape case without any forensic evidence is not the best case, but it is so often the kind of cases we have to try. The perfect rape case is a credible victim, a DNA match, hair and fiber matches, and any other forensic evidence such as fingerprints. But most cases are not like that. They are classic “he said, she said” cases, and all a prosecutor can do is put the victim on the stand, let her withstand cross exam, and ask the jury to decide whether they believe her. If they believe she was raped, do they believe the accused raped her?

And up until just before Christmas, even with all the problems with the D.A.’s case, I was willing to say, well, let the victim have her day in court, let her testify, let the defense cross examine her, and let the defense present its evidence. In all likelihood, the jury would have had reasonable doubt and acquitted the players after enduring the ordeal that a trial entails. 

In other words, it was a classic “he said, she said” case without DNA. But once the “she said” part of the case died, in that she could no longer say she was raped, the case died. And it was time to dismiss all the charges against the three players, not just the rape charge.

Since Christmas, the accuser has given birth to a baby girl, Nifong has been charged with ethics violations by the North Carolina Bar, the D.A.’s office in North Carolina has recommended that Nifong recuse himself from the prosecution of this case, and Duke has invited two of the three players (one had already graduated) back to school after suspending them immediately after they were indicted.  

Public opinion seems to be wildly in favor of the three young men, although how permanently tarnished their reputations are remains to be seen. They could ultimately end up heroes if they can prevail in their quest to prove they were falsely accused and they are not simply “not guilty,” but they are actually innocent.

They could end up being the poster boys for justice, and become an icon for our criminal justice system, reminding everyone that the presumption of innocence is one of the most valuable jewels in our Constitution, and our rush to judgement — and our tireless discussion of criminal cases — must be refreshed to include that sacred cornerstone.  And not just as a sarcastic aside, where we put our fingers up in the air making the quote gesture when we say, “allegedly” as if it is an annoying little necessity.

Most people who have spoken to me about this case think it is scary. They think the accuser is lying, the boys are innocent, and that it is a travesty of justice. They ask me why Nifong cannot be run out of town on a rail. They ask me how it could still be going on.

I remind them we have courts of law to determine what is true and what is fact.  I remind them that politics has no place in the search for the truth and we have to let the system work, that the D.A. cannot drop the case just because public opinion is against him. But I am running out of answers. I am afraid to say that it seems to me that in this case, the system has a tin ear for the truth, and a blind eye to justice. 

This should trouble us as a nation because our criminal justice system is the miner’s canary of democracy and freedom.

The next big day in the Duke case is Feb. 5, 2007. A hearing will be held to determine whether the accuser’s identification of the accused is admissible in court.

The defense contends the line up was unfair in that the accuser was only shown pictures of the Duke lacrosse players, and that it was, in effect, a multiple choice test with no wrong answer. Since she said she was raped by Duke Lacrosse players, and she was only shown pictures of Duke lacrosse players, someone in those photos had to be her rapists. Thus, the lineup became a game of pin the tail on the donkey. She could have done the identification blindfolded, and whomever she picked was fair game because they were on the team and therefore at the party.

If the defense wins this motion, and the identification is thrown out by the judge, I don’t see how the case can proceed to trial at all. It seems to me, even Nifong would have to agree that this ends the case and would have to dismiss the charges.

In a rape case, two things have to be proven: That the victim was raped, and that the accused raped her. Now that she can no longer say she was raped, the rape charge has been dismissed. If she then cannot testify as to who it was she says sexually assaulted her, the case cannot proceed to trial. And I think that even this D.A. would have to recognize the case has taken its last fatal hit and that charges have to be dropped. There would be no further legal basis for pursuing the charges. And if Nifong does not dismiss the charges, it is quite possible that a judge would rule in favor of the defense when they file their motions to dismiss.

Even though this case should be over by now, we still have to wait and see what will happen in court in February. I expect to attend that proceeding, and I will keep you posted and give you my analysis as we go.

It seems a shame that this case has done so much harm to so many. It is my hope that in the end, it will come to stand for something good. It will become a reminder for all those who work in the criminal justice system that we are here to serve the greater good, never ourselves, and that our oath is to administer justice in a very careful and deliberate search for the truth.

Always. No matter what. We must never ever violate the public trust.