Duke Lacrosse Case Reveals the Judicial System's Flaws

The Supreme Court this week refused to hear an appeal from the Duke lacrosse players stemming from the false accusations of rape in Durham in 2006. Effectively, that ends their civil rights lawsuit, and precludes their ever having a day in court in which their full stories may be told.

And that in itself provides a paradigm of the state of justice in America today. Perhaps no case presents such an obvious example of abuse of the legal system.

Recall that three players were falsely accused of rape; that their university, in a quick PR move, decided it would position itself as a victim (along with the supposed "victim" of the rape), and threw its students under the bus: it denounced them in classrooms and from chapel pulpit and apologized all over town for something that never happened. (It also denied them a disciplinary process wherein they could have presented their proof of innocence; it even refused multiple offers to examine that evidence -- the university did not want to know, did not want to have to know, that they were innocent).

Moreover, it was an election year, and the local establishment's favorite candidate for district attorney, Michael Nifong, was 15-20 points behind in the polls. Exploiting the racial angle, he gave scores of media interviews, asserting he knew that a rape had taken place and even demonstrating a choke hold he said the assailants had used. But he too refused to question the suspects (nor were they permitted to give statements); nor did he interview the "victim." His office too did not want to know, could not afford to know, that they were innocent.

The DA took over the investigation from the police. (The police chief disappeared -- from the biggest case in Durham's history -- after Nifong arrested his daughter on other charges. Nifong also arrested several acquaintances of the accuser; rigged convictions on minor charges against two of the lacrosse players; arrested and tried a major defense witness on trumped-up charges after he refused to change his testimony; and engaged in other forms of witness intimidation, concealment of evidence, manufacture of false evidence, and the like.)
Then the house came tumbling down and the state attorney general was forced to intervene; and the students were declared innocent.

After such a contretemps, one might have expected there to be prosecutions of another sort -- of those who nearly convicted people for something they never did. But to assume that is to misjudge the American justice system. The same system which was ready to machine process the falsely accused into 30-year terms in prison (and in effect to judicial murder) was incapable of assessing a penalty for their legal assailants.

What was left were lawsuits; and those were initiated not so much with money in mind, as with getting the full story told. The falsely-accused wanted to hear under oath from the perpetrators exactly what they did; wanted the media -- which sent packs of satellite trucks into Durham but somehow couldn't uncover the false storyline -- to have to print reputation-restoring accounts.

"One of the most important reasons for civil lawsuits, for civil rights lawsuits, is not just to get compensation for somebody who's been wrongly convicted, but to publicize the causes of that miscarriage of justice. That's why people sue -- to bring about change, to bring about reform. It's not just about compensation...." -- Peter Neufeld, co-founder of the Innocence Project, PBS interview.

But of course you can't get that in America these days, either. How easy is it for anyone bring people who move in the rarified atmosphere of Henry Kissinger, Goldman Sachs, and the White House, down into court like ordinary mortals, to testify? (Recall the unanswered allegations that Robert K. Steel, then Duke's Trustees' Chair, ordered Duke police to falsify their records in order to make the players seem guilty. And his supposed explanation for Duke's refusal to defend its falsely accused students: "Sometimes individuals have to suffer for the good of the organization".)

A clique of the brotherhood of the black robes helped derail what seemed to be a slam-dunk case (sometimes dubbed "Scottsboro II"). The lacrosse suits were first handed to the care of the Honorable Judge James Beaty. Beaty was a lifelong local civil-rights activist and one of the founders of the radical Black Students United for Liberation. Despite that background, he was given oversight over suits in which North Carolina NAACP officials might be discovered to be guilty of criminal conspiracy, extortion, and a few other things.

Under Beaty's aegis, a motion to dismiss went unacted on for three years. In that interim two witnessed died, memories faded, Durham claimed it might not be able to find its electronic records any longer, and the students scattered across the world. (Beaty allowed no depositions to preserve testimony.) Finally, when his long-awaited decision arrived, it slammed shut what should have been an open door.

Who knew that civil rights laws applied only to persons of African descent? That when Congress promised "each person", and "every citizen", the right to sue public officials who violated their rights, it really didn't mean that (no matter its use of the all-inclusive English terms); but that it intended to exclude whites, Latinos, Asians, and Native Americans?

But Judge Beaty knew -- and with that he threw out most of the lacrosse players' suits. They had inherited the wrong genetic makeup for the laws to apply equally to them.

(Of course, this was to resurrect the Dred Scott doctrine, in which laws -- regardless of what they actually said -- were opined to really only refer to citizens of one color. One would have thought the 14th Amendment, which was passed to forever erase that blot, would have sufficed. But evidently, zombie-like, that doctrine keeps rising from the grave, to haunt us.)

To top it off, the Supreme Court chimed in (via another case) with the declaration that even if police and prosecutors lie while under oath, in court, they are not liable to civil suit. (Rehberg v. Paulk, 9-0) This complimented their earlier assertion, "We do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws." (Pottawattamie v. McGhee)

Go it, prosecutors! Go it, police! You face no civil penalty whatever for any wrongdoing that you undertake, in pursuit of convictions.

Lee Harper has Atticus Finch say in To Kill a Mockingbird:

"There is one way in this country in which all men are created equal -- there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and an ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land. . . Our courts have their faults. . . but in this country our courts are our great levelers, and in our courts all men are created equal."

But that was fiction. Atticus Finch never existed. And he never had to fear retaliation as an attorney for having made the federal bench feel uncomfortable.

The real paradigm of justice today is the Duke case. A team of some of the best lawyers in the country couldn't even get their clients' cases past the courtroom front door. And when that happens, as Pacino's character might say in a remake of And Justice For All, "then something is wrong here... something is very, very wrong..."

Evidence and procedural rules, attorney-client privileges, settlements and plea bargains, the hostility of adversarial proceedings, all severely undermine the storytelling, truth-seeking dimensions of what people expect when they come before the law.

And this failure lies at the heart of why moral justice is merely a myth. --Thane Rosenbaum