Information and perspective about the Duke University Lacrosse Team Rape Case from the National Sexual Violence Resource Center:

22 01 2007

OVERVIEW

Pre-trial behavior, information and misinformation:

  • Defense attorneys can spin, distort, and omit facts while the prosecution must remain silent until trail.

Over the past nine months, the public has been exposed to the partial disclosure of facts along with speculation, misinformation, biased interpretation and strategic maneuvering by the defense. This has led to a distorted public perception of many of the facts in the case. Principally at work in this perception has been the defense attorneys’ strategy of revealing only selected portions of the evidence, excluding many important details and withholding other relevant and significant information. This kind of strategy becomes the basis for much of our public information and unfortunately for what we think is the truth in the case.

 

The current public impressions of the ‘facts’ in this case primarily result from procedural rules that effectively allow the defense to selectively discuss and sometimes distort, certain pieces of evidence, while the prosecutor may not discuss the case at all – not even to rebut false accusations. For example, the defense can disclose evidence that they believe is helpful to the defense but refuse to disclose evidence that proves their clients’ guilt.

 

The same is not true for the prosecution because if the prosecutor reveals the strength of his case, the defense can complain that this unfairly taints the jury pool or causes too much prejudicial pre-trial publicity. If the judge agrees, he can punish the prosecutor by suppressing evidence or dismissing the charges.

 

But when defense attorneys unfairly taint the jury pool against the interests of the victim, there are no similar sanctions against them because a judge cannot punish the accused for the bad behavior of his lawyer. For these reasons, the public’s awareness of evidence is almost always favorable to the accused and far from a full disclosure of the truth.

 

DECEMBER 2006 HEARING

 

In December 2006, the judge handling the case conducted a hearing to determine what if any DNA material found during a rape kit examination should be disclosed to the defense. The defense argued they should be allowed access to all information indicating the victim had prior sexual contact with men other than the defendants because they hoped to provide the jury with an alternative explanation for the victim’s vaginal injuries.

 

The judge agreed and ruled that the rape kit results be turned over to the defense.

 

In response to this development, two things happened:

 

Defense attorneys for the accused stated that the prosecutor, Mike Nifong, had been unethical to withhold such ‘exculpatory’ evidence. They called for him to drop all charges in the case and spoke publicly against his conduct as DA. Within days, a letter was sent to the US Department of Justice suggesting that a federal investigation be initiated against Nifong for violating the civil rights of the defendants.

 

In fact in the spring of 2006, the defense had been made aware that no DNA matching the three defendants was found in the rape kit evidence.

 

Not everyone thinks that Nifong acted improperly or unethically – as the defense suggests.

 

One can argue that Nifong’s withholding of this information was proper because the victim’s sexual history, like the sexual history of the defendants, is constitutionally protected private information. It is improper for any prosecutor to disclose this information without a hearing at which a judge must make a ruling to decide whether sexual history is relevant to an issue in dispute.

 

The reason for the DNA hearing was for the judge to make determination regarding the release of information on the DNA material. Legal procedure and laws protecting sexual privacy require that a judge make such determinations, not the prosecutor. Nifong did not violate anyone’s constitutional rights by not revealing such information until the judge made a decision on the DNA evidence.

 

  • Why didn’t the defense file an appeal to the North Carolina Appellate Court or the NC Supreme Court if they really thought the DA had violated the defendants’ rights?

 

In fact, if there were any truth to the defense’s claim that Nifong’s handling of the issue violated the constitution, they would have sought sanctions from the judge that handled the motion and if they were correct, the judge would have at least criticized the DA, or sanctioned him in some manner, but he did no such thing. And if the defense truly believed Nifong violated some procedure or law, and the judge declined to issue sanctions, they would have appealed to a higher state court in North Carolina, or even to the Attorney General in North Carolina. They did not do so.

 

Defense attorneys are well aware of their right to ask the judge who handled the DNA issue to punish Nifong for suppressing evidence by dismissing charges; the fact that they did not complain to the judge strongly suggests an obvious understanding on their part that Nifong did nothing wrong. Instead a letter was written to federal authorities, accompanied by indignant protestations, by the defense team and those sympathetic to the defense. This situation suggests an overall defense strategy aimed at putting the prosecution on the defensive and manipulating the court of public opinion.

 

After the judge ruled the defense could obtain the other men’s DNA, DA Nifong dropped one of three charges against the defendants – the charge of rape, which in North Carolina refers to penile/vaginal penetration ONLY. All other forms of penetration – including vaginal penetration by something other than a penis, is covered by the equally serious felony called “sexual offense”.

 

By dropping this one charge, Nifong loses nothing because the remaining sexual crime, called “sexual offense” in North Carolina, carries the same punishment as rape. But he may benefit strategically because with no vaginal rape charge, the defense cannot use the other men’s DNA at trial as they no longer have a need to “explain” the victim’s vaginal injuries.

 

To the defense’s charge that Mike Nifong withheld ‘exculpatory’ evidence, two points should be made.

  1. Every DA in the country knows that information about a victim’s past sexual activity should never be revealed unless and until a judge decides that disclosure is necessary. To do otherwise would be to violate a victim’s constitutionally protected sexual privacy without due process.
  2. Defense attorneys argue that the DNA was exculpatory evidence that excluded or exonerated their clients. But the fact is that most rape cases involve no DNA evidence. Furthermore, the other men’s DNA in this case doesn’t necessarily reveal anything about the night in question. The DNA may consist of partial strands, old sperms cells, degraded biological material or other substances that clearly predate the incident by weeks or months. It is common for sperm cells to survive even multiple launderings and it is unclear whether the DNA from other men was found inside the victim or on her underpants.

 

 

  • Critics of Nifong argue that he should drop all the charges because he doesn’t have a strong enough case

 

We must remind ourselves that it is possible that there is additional evidence that has not yet been revealed – although the defense and defense-friendly pundits frequently assert on television that Nifong has nothing. The actual discovery documents turned over to the defense number in the many thousands of pages, yet approximately a thousand pages have been withheld by the defense. That is, the defense has shared some, but not all of the evidence provided to them by the prosecutor. It is also possible that Nifong has eyewitness testimony from some of the defendants’ friends given that more than 30 other men were present at the time of the incident. There may even be photographs of the incident itself given that we’ve seen “before” and “after” photos. Since all the information is not available pre-trial, we know that more facts will be revealed when the prosecutor is legally permitted to elicit testimony and introduce evidence.

 

  • Critics complain that this case is ruining the lives of the defendants and it should be ended

A good point to make on this topic relates to the issue generally known as
”speedy trial” rights. All accused enjoy a constitutional right to a speedy trial under the due process clause of the 14th Amendment of the US Constitution. States differ on the mechanics of how defendants file for the enforcement of speedy trial rights, but the simple point is – the defense COULD demand an immediate trial, right now – but they’re not. Delaying a trial is a well-known defense strategy because memories can fade, witnesses might move away, evidence might get lost, and the opportunity for media manipulation is prolonged. In short – if this were truly a weak case with no evidence, the defense would be pushing for a speedy trial.

  • Public perception is that the victim has no credibility.

 

Here again it is important to remember that it is in the best interest of the defense to discredit the victim as a money-seeking opportunist, and to do so publicly in the pre-trial period. This strategy can work to undermine, humiliate, and discourage the victim from proceeding with the prosecution, and impact the jury pool.

  • The defense would have the public believe that this was a false report made to get money, but remember that according to a well-sourced news report by the Wilmington Journal in June 2006, the victim rejected a payment of over 2 million dollars last spring to back out of the case.

  • It is not unusual for there to be minor inconsistencies in victims recalling traumatic events. We know that trauma and confusion are frequently the consequences of rape, and that in the case of a gang rape, the trauma and confusion would be great. Additionally, there is some indication that the victim may have been drugged; there were reports of her going from sober to totally unaware and then back to not-intoxicated by the time she reached the hospital.

The main point to remember is that undermining the credibility of the victim in the pre-trial period continues to be a consistent strategy for a defense victory.

  • Criticism has surfaced concerning the fact that Nifong did not interview and talk to the victim.

    • We do not know the history of his interaction, or his offices’ interaction with the victim, but in fact, in general it is sound policy for a prosecutor to limit or refrain from such personal interviews at the risk of becoming a witness – which would disqualify him from serving as the prosecutor. In general we should skeptically consider any criticism of the DA by the defense, that would obviously benefit from his disqualification.

DECEMBER 13, 2006: MOTION BY THE DEFENSE FOR CHANGE OF VENUE

On December 13th defense attorneys filed a motion for change of venue arguing that defendants cannot get a fair trial in Durham County. They argue that the town is polarized. Critics argue that this 30-page motion including a list of ‘64 Facts Supporting the Motion’ has many distortions. A closer review of the motion by The Carolinian/Wilmington Journal “shows clear evidence, not only of factual distortions, but critical misrepresentations and outright omissions of several well-known mitigating facts calling into question the veracity of the defense’s calculated attack on the creditability of Durham’s African-American community.”*

If this case is as weak as the defense attorneys would have us believe, and if there is so little upon which to build a case, then it is indeed interesting that they were concerned enough to have filed this motion for change of venue. This suggests that in fact the defense is taking the case seriously and doing all it can to do battle on behalf of their clients.

 

* Wilmington Journal, “Duke Case-Rape Charges Dropped, as Defense Distorts Facts” by Cash Michaels. Originally posted 12/23/2006

 

Advertisements

Actions

Information




%d bloggers like this: