Tar Heel Fan

At least that is the way it seems. The Durham County DA Mike Nifong got his third indictment in the Duke lacrosse rape case. The grand jury, who mind you, only hears evidence from the DA, indicted Duke senior co-captain David Evans on charges of rape, sexual assault, and kidnapping. Now based on what has been released to the media the crux of the case against Evans is an identification(which I have deplored before as being a gross violation of police procedures and due process) and a partial DNA match from “genetic material” found on a fake fingernal in the trash can. The other two players accused, Collin Finnerty and Reade Seligmann, have been charged solely based on the identification. In fact the second round of DNA testing did not find any link between the 46 members of the lacrosse team and semen found inside the woman. Such a link is not necessary to prove rape since condoms or a lack of emission would create the absence of such material, but the question of who the accuser had sex with during the same timeframe is an important question to answer. Another intriguing notion brought forth is the insistence of the accuser that one of the attackers had a moustache. Defense attorneys for Evans insist he has never had a moustache which could create doubt if that comes up in trial.

Now the DA has never tip his full hand on the evidence he has so some judgement is being reserved to see if he brings anything to trial which trumps the overwhelming mountain of evidence the defense has been willing to put into the public arena. As I have said before the case is tilting in favor of the defense at this point and even the manner in which this indictment has been handled nor the evidence we have seen counts as a ringing endorsement of guilt. In fact, at this juncture, the only thing that is certain is the DA has strapped himself to this speeding train and he will end up going to wherever it takes him. And I really do not think, given the political pressures of an election year and the racial tensions involved, Nifong ever had a choice in the matter. It was either this or be castigated by the black community for protecting the rich white boys who raped the poor black single mother of two. At the same time his handling of the case and the behavior of the police in coercing witnesses through bogus charges is inexcusable.

Reasonable doubt is still the flavor of the day.

Side Note: When Evans showed up at the courthouse on Monday to surrender himself he was processed and then presented a $400,000 certified check for his bail and then was free to go. Many people will make this case about the rich vs poor aspect and even hope for a guilty verdict so the rich kids can get the comeuppance. Now I do think that kids who are born into money and wield those riches around without any sense of responsibility or notion of the hard work it takes to make it to that level are snobby brats who need to learn life lessons. On the other hand it is not a crime to be rich nor it is a crime to have the means to defend yourself in court. And on the top of that, if you are innocent of something you are entitled to having the innocence made manifest. Just because these guys are rich does not mean they deserve to be railroaded for a crime they may not have committed.

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In considering the media role in the Duke Lacrosse Case I asserted that one of the deeply troubling trends found in the conclusions being made on the national coverage level exhibited an incredible level of hubris and illustrated little knowledge of Duke, Durham, and North Carolina in general. There was never a starker example of this than Michael Wilbon’s comments on the April 21 PTI program on ESPN. The discussion centered on the Duke Lacrosse topic du jour for that day; the sale of Duke Lacrosse apparel at Duke University stores. The discussion surrounded the motivations certain people had for buying the jerseys with some doing it for support and others as some sort of sick joke. Wilbon then bloviated that the selling and wearing of Duke lacrosse jerseys might not play well in North Carolina since it is a “Red State”(read: conservative) and also had population with strong religious convictions(read: Christian fundamentalists). I scarcely know where to begin with the implication made by that one point.

The first is the use of the term “Red State” to imply that North Carolina is overtly conservative. While NC did vote for George Bush in two elections by overwhelming majorities and does have two Republican senators, it also has a majority Democratic state government. It also should be noted that while most of the state went red in 2004 and 2000, Durham County is a blue county largely due to the black population which traditionally votes at a 90% clip in favor of Democrats. Of course the question I would like Wilbon to answer is why NC being a Red State versus a Blue State makes a bit of difference in this case or why does having a population of individuals who trend towards a more Christian way of life matter either. I would hope that regardless of what you believe, who you vote for, who, where, or what you worship that you would be outraged at what allegedly happened in Durham on March 13th. Is Wilbon implying that Blue Staters or religious novices are somehow less sensitive to the issue or would be more accepting of people wearing Duke Lacrosse jerseys as some kind of novelty? I would think not and essentially what Wilbon did was make some kind of asinine speculation based on commonly held generalizations and patterns of behavior.

Another point of note is two issues concerning the DA. The first is statements made by his opponents in the race for Durham County DA. The other two candidates are basically taking Mike Nifong to task for overexposing the case to the media. There is truth to what they are saying but somewhat in Nifong’s defense is the fact he got pulled into a media war with the defense and anything other than straightforwardness would have led to accusations of a cover-up. I honestly believe that Nifong has put what too much of himself and this case in front of the media. I think reelection politics has a lot to do with that as well the need to match the defense sound bite for sound bite. Time will only tell how much it hurts his case in the end.

Speaking of hurting the case, a revelation was made Friday that the line-up the accuser used to glean the identifications of the two indicted players was made up of only the lacrosse team members and may have broken state procedures on how such photo arrays are done. According to experts photo arrays should include person who look similar to the suspect in question. This apparently was not done and it may jeopardize the identification in its entirety. One question that enters my mind is why they failed to use proper procedure. I think the answer lies with the police and the DA being unable to zero in on a suspect which made it impossible to assemble a photo array of similar pictures since they did not know who to start with in the first place. What basically occurred here was the accuser was presented with a photo array of the whole team from which she picked her alleged attackers. Now, this is not saying she misidentified her attackers or that she is lying. It is however disturbing to think that IF she was making this story up she could have in that moment picked ANYONE out of that array which could have and may have resulted in the indictment of an innocent person. The reason the procedure calls a photo array centering on one suspect is that it protects the rights of individuals who are not under suspicion. Imagine for example a man attacks a woman on the street in front of his apartment building and then runs inside to his apartment. The woman only gets a marginal look at him and did not see where he went once he entered the lobby. So the police decided to assemble a photo array including only the men living in that building. What are the chances she is going to wrongly identify the wrong man and land someone in hot water? I say the chances are really high and that is why the identification may be virtually worthless if it makes past pretrial hearings.

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As a blogger from the Raleigh area one might construe that I have fallen short of my responsibilities for not having raised this issue already. Part of my hesitation was that I not be seen for jumping up and down on Duke just for the sake of doing it. The other side of it was that I simply did not have enough information to render an opinion on the matter. And while the media at large is often satisfied with blowing hot air out over the airwaves or printing whatever speculations they can get their hands on I tend to operate differently. Of course underlying this reasoning is the incredible complexity and confusion of the events of March 13, 2006 in that house on the outskirts of Duke’s campus. I happen to think that a woman who cries rape should be given every opportunity to receive justice but I also think that a whole lacrosse team of players is innocent until proven guilty. As of this writing I have yet to render an opinion on who might be telling the truth. Here is my view of the parties involved.

The Media

Whether we know or not June 17, 1994 was a dark day for American society. That was the day of the O.J. Simpson Bronco chase in California which subquently ended in his arrest and led to his long trial for the murder of his ex-wife Nicole Brown Simpson. What the coverage of the O.J. trial brought was a genesis of the 24 hour news cycle where networks like CNN devoted the whole day to trial coverage and little know legal analysts who once got 5-10 minutes to address some issue became half hour fixtures on prime time news channels. Ever since that trial, every major crime that captures the imagination is picked up and carried by the media ad nauseum. The recent Natalee Holloway case in Aruba gave more life to this phenomenon and the Duke Lacrosse Rape Case has fallen into the same cycle of neverending coverage.

One terrible aspect of cases like this is the news hosts pontificating on this case and its meaning for the Durham community and Duke have probably spent less time in Durham or at Duke than most anyone. In other words you have hosts interviewing people about a community or situation in which the hosts know very little about factually and everything else they know is based on generalizations. The second problem is that both the DA and the defense attorneys have made unabashed use of the media in their efforts to market the case to potential jurors. The media has been nothing less than a totally willing partner in this venture. The DA and defense are not at all bashful about leaking any and all information to the press which may aid their case. It is clear the intention was to try the case in the media. For the DA it was intended to show the community how tough the prosecution was being and for the defense it was to pressure the DA into dropping the whole thing. Both sides have failed and the result is a whole lot of evidence out in the open allowing people to form hardened opinions on the case, some of which may be called to jury duty. The media has been grossly irresponsible overall with the exception of local radio station 850 The Buzz which has been very reserved in its presentation of the case choosing to stick with verifiable facts.

The sad truth is the case may have already been decided by the potential jury and that mean no justice for anyone.

Duke University

The fact that this is Duke makes this case all the more explosive. Duke is considered “Ivy League South” and has all the prestige and glory a highly touted private university can muster. In fact had this event occurred at East Carolina or even NC State the attention would be far less. The fact that it was Duke and also coupled with the fact that a black woman had accused a group of white men of rape gave in the racial element needed to make a national story. There is also a element where Duke’s failure to properly administer the behavior of the lacrosse team may have created the situation. According to the News and Observer the lacrosse team had a long history of misdemeanors and violations of the campus judicial code. Numerous players on numerous occassions engaged in criminal activity or illustrated reckless behavior which was largely unchecked by anyone at Duke. Does this mean any one of them was guilty of rape? No, but it does indicate that there was, to use a favorite NCAA term, a lack of institutional control over the team on matters of off the field behavior. Now resigned Duke lacrosse coach Mike Pressler was surely aware of how his team was behaving and should have done more to rein them in and if he was incapable of doing so then AD Joe Alleva or President Richard Brodhead should have taken actions to bring the lacrosse players under control. This is not saying that had tighter controls been instituted it would have prevented the alleged incident but at least there would have been a record of some kind of attempt to bring these guys under umbrella of authority.

One sure fire way of telling the world you knew you had a ticking time bomb and did nothing to stop it is to slap some kind of sizable CYA penalty down on the team. In this case Duke horribly overreacted and suspended the entire team and cancelled the season on the allegation that three of the 47 team members had comitted this act. This reeks of grade school discipline when the whole class stays in for recess because two attention seeking idiots in the back of the class decide upsetting the teacher is far more fun than slides and swings. What is an even greater travesty is the fact the whole team was tagged with these charges and based on everything I have read it is probable the whole team was not even present at the party. A whole bunch of good guys with excellent grades and overall decent records as citizens of Duke and the city are penalized because a few are accused of a heinous crime. A group of guys who want nothing more than to play collegiate lacrosse and exercise their talents at the highest level are now stuck sitting in their dorms with no season left.

Of course in Duke’s defense, the racial nature of the charges made virtually any decision they made a bad one. If they move too slow it is called a cover up and they are insensitive to the Durham community. If they come down too fast and hard they are seen as being to draconian and wrongfully punishing innocent students who may have not even been present. There was no middle ground here but part of that is based on Duke’s failure to act when the charges were minor and the behavior controllable. The bottom line here is that Duke could have addressed the behavior of the lacrosse team which was by most accounts out of control. Dealing with the minor infractions would have given Duke opportunity to identify troublemakers and established a punishment track which would have made the actions they ended up taking completely in line with precedent.

The Distict Attorney

Mike Nifong is the DA for Durham County, he is white, and he is also running for reelection in a predominatly black county and city. That is pretty much all you need to know to draw a conclusion as to why Nifong has aggressively pursued this case. As much as I would like to think he is a zealous advocate of the people and will always employ this kind of passion in obtaining justice for any victim, years of watching politics has made me cynical. There are two absolutely inescapable motivators for Nifong here.

The first is politics. Nifong is up for reelection and there is no way in Hades he gets reelected as D.A. if he ticks off the black community. A black N.C. Central student alleges rape against white Duke students and what you essentially have is a political time bomb. If Nifong was three years out from reelection, then he could afford to play this much more cautiously because voter memories are very short and as long as you say the right things during the year before the election the odds are a mistake you made 2-3 years back will not matter. Since this case fell into the election year Nifong had no choice but to go after the lacross players come hell or high water. Even as it appears the case is falling apart, Nifong pressed forward with indictments because if he does not he will be easily beaten when the voters hit the polls.

The second aspect is race. Nifong is making a preemptive strike against a reaction from the black community. The last thing Durham officials want is Jesse Jackson or Al Sharpton leading a march down the center of Durham. Instead of allowing the outrage to fester and grow, Nifong headed it off by taking the hard line, even if it means putting innocent men through a trial. If Nifong so much as hesitates or fails to toe the line, the black community will take him to task. And I do not mean this is a necessarily negative action their part. There is still plenty of inequality in the world and enough reminders that black victims often get a raw deal when accusing white attackers. It also should be noted that there is a tenancy to play the race card when it is not a racial issue at all.

As difficult as it is, we must strive to remember that someone alleged attack someone else in a sick manner. The act alone regardless of the colors of the skin should be enough to outrage the entire community of people, bring the zeal of the D.A., but at the same time create a proper environment where justice can trult prevail. Sadly, this is not occurring in Durham. The D.A. is using the media to play politics by using various leaks. The interest for Nifong is not justice for the victim or finding the truth, the interest is reelection and whatever truth ensures that is the one he will be presenting to the jury.

Next: The Defense Paints a Picture, The Accuser, and The Case Itself

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