The Earle of Duke

We have two fine literary examples of trials occasioned by charges of interracial rape: To Kill a Mockingbird and Passage to India. Both involve false claims of women against men of other races, accompanied by seething rage in the defendants' communities and unscrupulous politicians exploiting that rage.

So we have a template for the unfortunate and, I think, outrageous, prosecution of three members of the Duke Lacrosse team. The record gets worse every day.

What we know

Normally, we have little claim to know so early in the proceedings the strength of the government's case. But, as in the case against Tom Delay brought by Ronnie Earle in Texas, this prosecutor went in front of the cameras 24/7 at the outset and the defense has responded quickly. So we do know a great deal.

From published reports we know that the accuser showed up late at night, drunk, to a house filled with young men, to strip before them.

[Don't tell me that she's still entitled not to be raped. Who ever said that?]

Allow me to suggest that such conduct indicates the accused is a person who has a diminished notion of risky behavior.

She was driven to the house by a man described as her boyfriend.

Another stripper was also there.

At some time in the performance, the accuser stepped into a bathroom and polished her press—on nails.

When she left, a camera shows her tripping down the stairs and injuring herself.

Sometime later police found her still drunk and injured and took her to the hospital. She did not initially claim to have been raped. Sometime later, she claimed she'd been raped by 20 white men on the lacrosse team.

When approached by the police, the men cooperated with the investigation, providing materials found in the house, DNA samples, photographs of themselves and statements.

The accused was shown a fatally flawed photo spread which had only their pictures on it. (Because this is like shooting fish in a barrel, it is never used. It is utterly unreliable.)

One of those men selected and charged appears to have an airtight alibi. The prosecutor appears to be unhappy with that, the police having arrested one of his eyewitnesses (a cabbie) for a two and one—half year old misdemeanor after he went public with his defense of the accused.

Yet another accused has proof that he never had a moustache, the one thing that accuser said was different from the picture of him she selected from the spread.

To date the only 'evidence' besides the accuser's statements made public is the fact that a nurse at the hospital to which she was taken said she had abrasions 'consistent with rape.' Some DNA consistency (but not a match) was found in the exterior of one of her press—on nails retrieved from a wastebasket in a bathroom used by one of the accused. Some scratches were found on the men. 

Flimsiness

No DNA of any sort matching any of the men was found on her.

Semen found inside her body matched that of her boyfriend.

The abrasions found by the nurse are consistent with other possible stories as well, and no one can expect that the abrasions are sufficient to prove her charges. It only indicates she might have been raped. It does not establish that she was.

It is perfectly normal to expect that the nail found in the wastebasket would contain traces of DNA of whoever tossed anything in it. DNA that is not a complete match is not very conclusive.

There is not a single DNA match on any substance found on or in her body—nor a hair or fiber matching a single one of the accused. And scratches on lacrosse players are perfectly normal. In any event we only know the scratches were there days after the purported incident. Not close enough to the event to be meaningful.

Other reports further show the flimsiness of the case:

the accuser made a prior charge years ago involving three men which she never followed up on;

her fellow stripper noticed no rape or any sign of one;

the accused identified yet a fourth man who inexplicably has not been charged;

the prosecutor refused to even listen to the exculpatory evidence of the last person charged.

As the prosecutor made his case public in countless public appearance just before the primary election in which he was a candidate, and because the votes of the black community were critical to his candidacy, suspicion of the strength of the charges is even greater.

In the meantime the team has been devastated, the university harmed, and, most importantly, three young men and their families have to suffer through the emotional and financial devastation of facing and defending against these charges. Their expensive education is being interrupted as they've been suspended pending resolution of the charges.

Every day this drags on drains the families and the accused emotionally and financially.

Unconscionable delay

Thomas Sowell calls the delay in the trial announced by Nifong a 'smoking gun' revealing prosecutorial bad faith.

Suppose, for the sake of argument, that the players are guilty. What is the point of letting a bunch of rapists remain at large for another year? What about the dangers that they would pose to women on or off the Duke University campus?

Now suppose that the players are innocent. Isn't it unconscionable to have this damning charge hanging over their heads for another year?

He explains:

What purpose does the delay serve? The most obvious purpose is the same as the purpose that delay serves in confidence games.

After a fraud has been perpetrated and it is only a matter of time before the victim finds out, it can still make a big difference whether the victim finds out suddenly or slowly over an extended period of time. This is called "cooling out the mark."

If the mark (the victim) finds out suddenly and immediately, instant outrage may lead to a call to the police, who can then get hot on the trail of the con man.

However, if the realization of having been taken begins to emerge at first as a sense of puzzlement, then as a sneaking suspicion, and ultimately —— after a passage of some time —— as a clear conclusion that a fraud has taken place, then the emotional impact is not nearly as strong.
The victim of the fraud may even be reluctant to go to the police, having had time to think about what a fool he may look like and how little chance there is now to do anything about it.

Their ordeal looks to be extended, as the state of North Carolina has no speedy trial statute and the prosecutor who rushed through the grand jury proceedings and indictments says he doesn't plan to bring the case to trial until next year. It seems unlikely that any challenge to that (and it would add to the costs of the defense) will wind its way through the courts in sufficient time to substantially advance the trial date.

Duke must take a stand

Duke should do the right thing. If the prosecutor thinks there is no harm to society or danger in allowing these men to remain free in the community for one year, neither should Duke continue to impede their education. One of the three accused has graduated

Duke should take the courageous step of allowing the students to take this semester's exams over the summer and return to school in the Fall.

Otherwise, Duke extends and legitimizes this travesty.

Potential future applicants will notice.

Clarice Feldman is an attorney in Washington, DC

We have two fine literary examples of trials occasioned by charges of interracial rape: To Kill a Mockingbird and Passage to India. Both involve false claims of women against men of other races, accompanied by seething rage in the defendants' communities and unscrupulous politicians exploiting that rage.

So we have a template for the unfortunate and, I think, outrageous, prosecution of three members of the Duke Lacrosse team. The record gets worse every day.

What we know

Normally, we have little claim to know so early in the proceedings the strength of the government's case. But, as in the case against Tom Delay brought by Ronnie Earle in Texas, this prosecutor went in front of the cameras 24/7 at the outset and the defense has responded quickly. So we do know a great deal.

From published reports we know that the accuser showed up late at night, drunk, to a house filled with young men, to strip before them.

[Don't tell me that she's still entitled not to be raped. Who ever said that?]

Allow me to suggest that such conduct indicates the accused is a person who has a diminished notion of risky behavior.

She was driven to the house by a man described as her boyfriend.

Another stripper was also there.

At some time in the performance, the accuser stepped into a bathroom and polished her press—on nails.

When she left, a camera shows her tripping down the stairs and injuring herself.

Sometime later police found her still drunk and injured and took her to the hospital. She did not initially claim to have been raped. Sometime later, she claimed she'd been raped by 20 white men on the lacrosse team.

When approached by the police, the men cooperated with the investigation, providing materials found in the house, DNA samples, photographs of themselves and statements.

The accused was shown a fatally flawed photo spread which had only their pictures on it. (Because this is like shooting fish in a barrel, it is never used. It is utterly unreliable.)

One of those men selected and charged appears to have an airtight alibi. The prosecutor appears to be unhappy with that, the police having arrested one of his eyewitnesses (a cabbie) for a two and one—half year old misdemeanor after he went public with his defense of the accused.

Yet another accused has proof that he never had a moustache, the one thing that accuser said was different from the picture of him she selected from the spread.

To date the only 'evidence' besides the accuser's statements made public is the fact that a nurse at the hospital to which she was taken said she had abrasions 'consistent with rape.' Some DNA consistency (but not a match) was found in the exterior of one of her press—on nails retrieved from a wastebasket in a bathroom used by one of the accused. Some scratches were found on the men. 

Flimsiness

No DNA of any sort matching any of the men was found on her.

Semen found inside her body matched that of her boyfriend.

The abrasions found by the nurse are consistent with other possible stories as well, and no one can expect that the abrasions are sufficient to prove her charges. It only indicates she might have been raped. It does not establish that she was.

It is perfectly normal to expect that the nail found in the wastebasket would contain traces of DNA of whoever tossed anything in it. DNA that is not a complete match is not very conclusive.

There is not a single DNA match on any substance found on or in her body—nor a hair or fiber matching a single one of the accused. And scratches on lacrosse players are perfectly normal. In any event we only know the scratches were there days after the purported incident. Not close enough to the event to be meaningful.

Other reports further show the flimsiness of the case:

the accuser made a prior charge years ago involving three men which she never followed up on;

her fellow stripper noticed no rape or any sign of one;

the accused identified yet a fourth man who inexplicably has not been charged;

the prosecutor refused to even listen to the exculpatory evidence of the last person charged.

As the prosecutor made his case public in countless public appearance just before the primary election in which he was a candidate, and because the votes of the black community were critical to his candidacy, suspicion of the strength of the charges is even greater.

In the meantime the team has been devastated, the university harmed, and, most importantly, three young men and their families have to suffer through the emotional and financial devastation of facing and defending against these charges. Their expensive education is being interrupted as they've been suspended pending resolution of the charges.

Every day this drags on drains the families and the accused emotionally and financially.

Unconscionable delay

Thomas Sowell calls the delay in the trial announced by Nifong a 'smoking gun' revealing prosecutorial bad faith.

Suppose, for the sake of argument, that the players are guilty. What is the point of letting a bunch of rapists remain at large for another year? What about the dangers that they would pose to women on or off the Duke University campus?

Now suppose that the players are innocent. Isn't it unconscionable to have this damning charge hanging over their heads for another year?

He explains:

What purpose does the delay serve? The most obvious purpose is the same as the purpose that delay serves in confidence games.

After a fraud has been perpetrated and it is only a matter of time before the victim finds out, it can still make a big difference whether the victim finds out suddenly or slowly over an extended period of time. This is called "cooling out the mark."

If the mark (the victim) finds out suddenly and immediately, instant outrage may lead to a call to the police, who can then get hot on the trail of the con man.

However, if the realization of having been taken begins to emerge at first as a sense of puzzlement, then as a sneaking suspicion, and ultimately —— after a passage of some time —— as a clear conclusion that a fraud has taken place, then the emotional impact is not nearly as strong.
The victim of the fraud may even be reluctant to go to the police, having had time to think about what a fool he may look like and how little chance there is now to do anything about it.

Their ordeal looks to be extended, as the state of North Carolina has no speedy trial statute and the prosecutor who rushed through the grand jury proceedings and indictments says he doesn't plan to bring the case to trial until next year. It seems unlikely that any challenge to that (and it would add to the costs of the defense) will wind its way through the courts in sufficient time to substantially advance the trial date.

Duke must take a stand

Duke should do the right thing. If the prosecutor thinks there is no harm to society or danger in allowing these men to remain free in the community for one year, neither should Duke continue to impede their education. One of the three accused has graduated

Duke should take the courageous step of allowing the students to take this semester's exams over the summer and return to school in the Fall.

Otherwise, Duke extends and legitimizes this travesty.

Potential future applicants will notice.

Clarice Feldman is an attorney in Washington, DC