Most of you probably remember the Duke lacrosse case from a few years back. For those of you who do not, or whose memories are unclear, let me bring you up to speed.
Here we had a case in which there was no crime, but a DA could manufacture evidence and then roil the public and stir up racial animus against the defendants; intimidate, threaten, and arrest defense witnesses; arrest the police chief's daughter (the chief thereupon disappearing from the case); and so stir up a community that a local jury might not have had the courage to return a verdict of not guilty, despite absolute proof of innocence -- including proof that two of the accused were not even present at the scene of the supposed crime.
In other words, innocent persons could have been convicted for a crime which never happened.
The accused were never permitted to know exactly what it was each of them was accused of doing (no bill of particulars), were not allowed to present to the court evidence of their innocence (no probable cause hearing), were charged using manufactured and false evidence (for the warrants), were denied a speedy hearing (thus being pressured by the expense and emotional turmoil of delay), and were not protected inside the very court from members of a race-based hate group who threatened them with death.
They were never interviewed by police. (If they had been, they would have instantly produced evidence of their innocence, thus ending the case.)
That persons who are innocent could be convicted with no evidence (indeed, with overwhelming evidence to the contrary -- including DNA tests which proved them innocent two weeks before the first arrests were made) purely on the basis of public animus against them is an indictment of our judicial system. It is a return to the lynch law days of a former century. It is an outrage against justice.
But this is not about those defendants. They escaped an unwarranted outcome, though it was by a very narrow margin (too narrow to describe here) -- and even that occurred only with the help of expensive and competent defense attorneys.
This is about the next defendants, who may fall into the maw of the same twisted judicial machinery.
Virtually nothing has changed in the interim since then to prevent a repeat of such injustice. North Carolina still lacks a speedy trial law, a law providing a probable cause hearing for every defendant, transcripts for grand jury sessions, and an absolute right to a prompt bill of particulars.
And there is more.
Lawsuits (plural) have been in progress since shortly after the lacrosse charges were dismissed. "Progress," however, is a dismal irony to describe this modern "Bleak House."
Lawsuits are brought not only to obtain recompense, but to expose the truth.
But where powerful persons are involved, our judicial system may not be robust enough to obtain testimony. Robert K. Steel was chairman of the Duke Board of Trustees (which also numbered such luminaries as Melinda Gates, David Gergen, and the chairman of General Motors) at the time of the lacrosse case. Steel is alleged to have explained to fellow trustees that Duke would not defend its falsely accused students because sometimes "good people have to suffer for the good of the organization." He is further alleged to have ordered Duke university police -- sworn officers of the law -- to falsify their records in order to make the accused appear more guilty.
This is called "violation of civil rights under color of law." But Duke has hired Jamie Gorelick among others for legal counsel. The cases have dawdled for more than three years, with no testimony taken. In the interim, two witnesses have died, one by suicide. Important electronic evidence is likely -- more than likely, given Durham's history -- to have degraded (or been allowed to degrade). Memories fade.
Many of us believe that people with the right connections cannot be brought before the bar, that the playing field in our judicial system is not level, and that ordinary people, lacking clout, may never be able to get their causes heard in an open court.
The mere video of Nifong demonstrating a stranglehold which never happened, for a crime which never took place, is sufficient for a summary judgment against him. There is no question of fact involved, and no question of law (a prosecutor has no immunity for statements he makes to the press denigrating defendants -- let alone for intentional lies).
But the courts cannot seem to reach even this simple conclusion. The whole matter appears to be one which the entire political and judicial apparatus of North Carolina -- not to mention the federal government -- would prefer just to go away. Inconvenient truth must be buried.
All of this might be well and good if we were discussing only the fate of three falsely accused college students. Let them be collateral damage. Let them, with Dreyfus and others before, be thrown on the altar of expediency. Their reputations are damaged, and for the rest of their lives, they will bear a stigma -- but sometimes good people have to suffer.
But what about the next time? The next defendants? Isn't that what justice is all about?
Was "equal justice under law" always a deliberate chimera?
Is the whole heap of judicial machinery -- the compendiums of laws, the storied court buildings -- all intended as just a façade? Is keeping the public mollified -- even if it means convicting the wrong defendants and keeping the powerful out of trouble -- the practical aim and end process of all our judicature?
And have we been fooled all along?