Friday, December 22, 2006
Cracks in the Facade of the Duke Lacrosse Never Was Rape Case
Sad laughingstock DA Mike Nifong today dropped only the rape charges against the 3 Duke Lacrosse players, but not the kidnapping and sexual assault charges. It is either the beginning of the end of one of the worst false rape claims ever to get charged, or it is a cynical effort of DA Nifong to redouble his support for the remaining, almost certainly false charges by slimming down the case to make the exonerating DNA analysis irrelevant and thus not part of the trial. I can't tell which yet.
Here's what I do know. Ever since the accuser's fellow 'exotic dancer' declined to support any of the rape, kidnapping or sexual assault accusations, and the DNA analysis absolutely ruled out any of the 3 having had intimate, penetrating contact with the accuser, the only evidence to support any charges against the Duke 3 was the testimony of the accuser. Unfortunately for DA Nifong, the accuser has given substantially different versions of the alleged events that night, which different versions now number in double digits; with one more version revealed today as she has changed her story yet again.
Now, DAs have extra ethical duties concomitant to the power of the office. You don't just get to cover your eyes and become agnostic about your only witness's credibility. Nor do you get to pick the version of events you think will be easiest to sell to a jury. If there are even two substantially different versions, you have to make a good faith evaluation of what effect changing the story even once will have on the credibility of the only witness. If you come to the conclusion that the credibility is seriously damaged, then it is probable that you can not obtain a conviction beyond a reasonable doubt and you must dismiss all the charges. This is not discretionary--this is an ethical requirement. See DR 7-103 of the ABA Code of Professional Responsibility. North Carolina may have different ethical rules for lawyers and DAs but I assure you they will be similar to this one
Given the ever changing stories told by the accuser here, I can't see how any reasonable prosecutor could conclude other than that her credibility is not just damaged but in absolute tatters. Given that Nifong apparently ordered the investigating police to conduct a second photo line-up, which had only team players in it but did not contain any fillers--so the accuser would necessarily pick a Duke lacrosse player if she picked anyone at all, and given that he did not promptly turn over the exonerating DNA analysis and may well have conspired to keep it from the defense counsel (also a violation of DR 7-103), I am incapable of calling him a reasonable prosecutor. Indeed I am open not only to an ethics investigation of Nifong, but also a Justice Department investigation to see if criminal charges should be brought against the DA for conspiring to violate the civil rights of the 3 Defendants. I hope Durham county (where Nifong's judicial district is), and Mike Nifong personally, get million dollar judgments against them in the Section 1986 civil suits to follow --and I'm usually a big fan of prosecutorial immunity. The man has disgraced himself and his office and has caused good citizens to doubt the honesty and integrity of North Carolina's criminal justice system. And there is little he can do to fix things.
Dropping all the charges against the Duke 3 immediately is now the only ethical choice he has. Maybe he'll surprise us.
Here's what I do know. Ever since the accuser's fellow 'exotic dancer' declined to support any of the rape, kidnapping or sexual assault accusations, and the DNA analysis absolutely ruled out any of the 3 having had intimate, penetrating contact with the accuser, the only evidence to support any charges against the Duke 3 was the testimony of the accuser. Unfortunately for DA Nifong, the accuser has given substantially different versions of the alleged events that night, which different versions now number in double digits; with one more version revealed today as she has changed her story yet again.
Now, DAs have extra ethical duties concomitant to the power of the office. You don't just get to cover your eyes and become agnostic about your only witness's credibility. Nor do you get to pick the version of events you think will be easiest to sell to a jury. If there are even two substantially different versions, you have to make a good faith evaluation of what effect changing the story even once will have on the credibility of the only witness. If you come to the conclusion that the credibility is seriously damaged, then it is probable that you can not obtain a conviction beyond a reasonable doubt and you must dismiss all the charges. This is not discretionary--this is an ethical requirement. See DR 7-103 of the ABA Code of Professional Responsibility. North Carolina may have different ethical rules for lawyers and DAs but I assure you they will be similar to this one
Given the ever changing stories told by the accuser here, I can't see how any reasonable prosecutor could conclude other than that her credibility is not just damaged but in absolute tatters. Given that Nifong apparently ordered the investigating police to conduct a second photo line-up, which had only team players in it but did not contain any fillers--so the accuser would necessarily pick a Duke lacrosse player if she picked anyone at all, and given that he did not promptly turn over the exonerating DNA analysis and may well have conspired to keep it from the defense counsel (also a violation of DR 7-103), I am incapable of calling him a reasonable prosecutor. Indeed I am open not only to an ethics investigation of Nifong, but also a Justice Department investigation to see if criminal charges should be brought against the DA for conspiring to violate the civil rights of the 3 Defendants. I hope Durham county (where Nifong's judicial district is), and Mike Nifong personally, get million dollar judgments against them in the Section 1986 civil suits to follow --and I'm usually a big fan of prosecutorial immunity. The man has disgraced himself and his office and has caused good citizens to doubt the honesty and integrity of North Carolina's criminal justice system. And there is little he can do to fix things.
Dropping all the charges against the Duke 3 immediately is now the only ethical choice he has. Maybe he'll surprise us.
# posted by Roger Fraley @ 3:39 PM 
Comments:
<< Home
Wouldn't the defense still be able to bring the DNA evidence in through the back door as impeaching the credibility of the primary "witness"? She has a provable history of fabulation in sworn statements in a sexual assault case; surely that would be relevant to her credibility in a sexual assault case? (That it's the same case shouldn't reduce the relevance.)
Doug, crediblity of a witness is always relevant but it would depend on the judge, who would be wise to let it in just for the reason you stated, to impeach the witness, but it could be kept out under rule of evidence 403 if the judge thought the sideshow of the impeachment was taking over the circus of trying to prove the remaining charges. And I chose my words above carefully. The old unsubstantiated accusation of rape is also tricky but probably would come in although the defense would have to fight I bet. This case is such a dog even its fleas have fleas.
Post a Comment
<< Home
