May 17, 2006
The Earle of DukeBy Clarice Feldman
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.
[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.
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.�
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:
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.
Thomas Sowell calls the delay in the trial announced by Nifong a 'smoking gun' revealing prosecutorial bad faith.
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