30 01 2007

By: Wendy Murphy

The Wilmington Journal

Originally posted 1/12/2007


For nine months, we’ve heard only from the defense in the so-called “Duke Rape Case” – but few people know that while the defense is talking up a storm about how the prosecutor has “nothing”, the defense has refused to release a thousand pages of the investigation.

Reasonable people want to know what they’re hiding.

The prosecutor can’t reveal evidence without risking sanctions (such as dismissal of charges) for tainting the jury pool. The defense is not subject to similar punishment, which is why they can and do speak more freely in all high profile cases. This double standard is why we should all be suspicious about whether we’re getting the whole truth whenever a defense attorney claims there’s “no” evidence.

The prosecutor, Mike Nifong, may have eyewitness statements from the defendants’ friends (after all, there were more than 30 other guys present) and pictures of the incident (we’ve all seen the before and after pictures, maybe there are “during” photos, too).

If so, Nifong should be rewarded for respecting the defendants’ rights by NOT leaking the type of evidence that could help him personally respond to criticism.

Other things to consider:

Many people on the prosecution side – not just Mike Nifong – participated in the decision to bring charges and not one of them – no police officer, no medical professional and none of the attorneys working with Mr. Nifong have backed down even one iota or raised any concerns about whether the case should proceed to trial.

The decision to prosecute was not “political”. Mr. Nifong didn’t win the black vote (in the May primary) and he lost much of the more influential rich white vote. Clearly, the best political option for him personally would have been NOT to bring charges. That he did anyway suggest he has a strong case because statistics consistently reveal that prosecutor disproportionately decline to prosecute even valid rape cases when they believe they can’t win a conviction. They certainly don’t want to waste their budget on frivolous cases, much less frivolous cases that will cost them a fortune because of the wealth of the defendants and will likely bring great political pressure to bear on the administration of justice. In short, powerful pressures would have militated against bringing charges in this case if there were truly “no evidence”.

The Wilmington Journal reported last June that the victim rejected over 2 million dollars from people “on behalf of Duke” to back out of the case.

The photo line-up was not unfair. Not all party attendees were players and Duke’s own president said that “many” players were not at the party. Thus, it is false to say there were “no wrong answers” when the victim was shown only photos of lacrosse players during the initial identification process.

Mr. Nifong’s reliance on responsible others to talk to the victim is proper. It protects him from being removed from the case as a “witness”.

DNA evidence supporting the defense was not “held back” by the prosecutor. The defense and the entire nation learned last spring that DNA in the rape kit did not match the defendants.

Information that was “held back” involved other men’s DNA and it is unclear to this date whether that DNA was from recent or very old sexual activity as reports indicate the samples were taken from a variety of places, including the victim’s underpants. Microscopic fragments of sperms cells can survive even laundering. This means the “other men’s” DNA could have been from weeks or months earlier. This constitutionally protected private information should never be disclosed unless a judge deems it relevant. The defense argued at a hearing in December that the fact the victim had sexual contact with other men provides an alternative explanation for the victim’s vaginal injuries. The judge agreed and the evidence was ordered released to the defense.

This was not a violation of the defendants’ rights, it’s called due process for the sexual privacy rights of the victim and the “other men”.

Days after the judge allowed the “other men’s” DNA to be released, the prosecutor withdrew the “rape” charge, which under North Carolina law consists ONLY of penile/vaginal penetration. Other penetration crimes are covered by the remaining equally serious “sexual offense” indictment. This may have been a brilliant move because with no rape charge, the victim’s sexual past and the “other men’s” DNA is irrelevant – and the cause of justice is spared a salacious and distracting sideshow.

Claims that Mr. Nifong should be investigated by federal officials for violating the defendants’ constitutional rights are curious given that the judge handling the case has said nothing critical of Mr. Nifong. If there were truly any constitutional violations, the defense would have brought them to the attention of the judge at the time of the alleged infraction. That the defense opted against asking the judge to take action and instead sought redress in the court of public opinion speaks volumes about whether they sincerely believe the defendants’ rights were violated.

Similarly strange is the ethical complaint filed against Mr. Nifong and signed by current or former defense attorneys (one appears to be a Duke alum) alleging the prosecutor committed numerous violations of his professional duties by making certain public statements about the case. People who have watched this case unfold are shaking their heads wondering why there wouldn’t also be a complaint against the defense attorneys for their relentless, repetitive and profoundly unfair public statements they have made at every turn since day one including the most disturbing claim: “that there is no case”. All lawyers in North Carolina are ethically obligated under disciplinary rule 8.4(c) NOT to engage in dishonest conduct — yet on December 23, 2006, defense Attorney Wade Smith publicly called on Mr. Nifong, to “end this suffering … end this case . . . because there is no case to bring”.

Attorney Smith knows that if that if there really were no case, he would AND SHOULD demand an immediate trial to end his client’s “suffering”. But none of the defense attorneys mentioned wanting an immediate trial during any of their recent PR stunts.

And let’s get real – the most serious ethical violation for a prosecutor is the one that forbids them to bring a case where there is, as the defense claims, no evidence. Yet in the many pages of alleged ethical violations, there is no reference to the provision that forbids Mr. Nifong to proceed with charges based on the absence of sufficient evidence.

Reasonable people might conclude that the reason Mr. Nifong is not accused of violating that ethical provision is the same reason he’s being attacked on television RATHER than in front of the judge handling the case. It would give him free reign to reveal ALL the evidence in the case.

I don’t know all the prosecutor’s evidence but I’m certain the victim, like any human being, deserves her day in court and I’m certain the public has right to know the WHOLE truth before deciding whether justice has been served. Let the jury, not the pollsters, render judgment. Wendy Murphy, JD, former sex crimes prosecutor, law professor, New England School of Law, Boston – 617-422-7410




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