Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Thanks to Cathy Nardo for sending the Duke Talking Points along -- they will 
prove useful no matter what happens int he Duke case in terms of providing 
critical analytical ideas for people receiving information about high profile 
criminal cases in the media.  I was glad to work with Cathy's colleagues 
including Susan Lewis at the NSVRC in drafting the talking points and I hope 
you find them helpful.  I will add a word of caution that the case may well 
go away, and if it does -- I would want to know whether any money exchanged 
hands -- something we might never find out about directly, but might be able 
to infer from the victim's changed lifestyle, new car, home, etc.  It is 
possible the victim will recant her testimony at the hearing on February 5 
and claim that she no longer feels certain that she knows who did what to 
her.  It is possible if this happens, she will recant in exchange for a large 
payoff.  I say this because I've seen it before.  In the Cardinal Bernadin 
case form the early 1990s, a victim who credibly alleged he had been molested 
by Bernardin (before he became Cardinal) and another priest at the same time 
- in Bernardin's private liviing quarters -- ultimately recanted and claimed 
he could "no longer trust his memories".  He claimed he had "false memories" 
induced by suggestive therapy, etc.  Weeks later, he received a seven figure 
settlement from the church.  Officials claimed the settlement did not 
implicate Bernardin because the payment was for injuries caused by the 
"other" priest -- but seriously -- would anyone pay a dime to a guy who 
claimed he'd been molested by TWO priests at the same time on the theory that 
the memory of ONE priest's abuse was completely false while the other was 
worth seven figures?  The truth appears to be -- the guy got a lot of money 
IN EXCHANGE for his recantation.  This hurt the integrity of all similar 
types of cases and made the quest for justice extremely difficult for all 
victims with traumatic memories.

It remains to be seen whether corruption will infect the Duke case -- though 
the fact that 2 million dollars was offered to the victim last spring 
suggests the strategy may well be underway - 

Shame on anyone who takes a payoff.  Payoffs are corruption and should be 
prosecuted as obstruction of justice.  If this victim recants for money - it 
will hurt the cause and credibility of all rape victims, especially minority 
victims -- for many years to come.

In the meantime -- here's my latest piece.

Wendy

DUKE-ING IT OUT IN THE COURT OF PUBLIC OPINION

For nine months, we've heard only from the defense in the so-called “Duke 
Rape Case” - but few people know that while the defense is talking up a storm 
about how the prosecutor has “nothing”, the defense has refused to release a 
thousand pages of the investigation.   Reasonable people want to know what 
they're hiding. 

The prosecutor can't reveal evidence without risking sanctions (such as 
dismissal of charges) for tainting the jury pool.  The defense is not subject 
to similar punishment, which is why they can and do speak more freely in all 
high profile cases.   This double standard is why we should all be suspicious 
about whether we're getting the whole truth whenever a defense attorney 
claims there's "no" evidence.

The prosecutor, Mike Nifong, may have eyewitness statements from the 
defendants' friends (after all, there were more than 30 other guys present) 
and pictures of the incident (we've all seen the before and after pictures, 
maybe there are "during" photos, too). If so, Nifong should be rewarded for 
respecting the defendants' rights by NOT leaking the type of evidence that 
could help him personally respond to criticism.

Other things to consider:

Many people on the prosecution side - not just Mike Nifong - participated in 
the decision to bring charges and not one of them - no police officer, no 
medical professional and none of the attorneys working with Mr. Nifong have 
backed down even one iota or raised any concerns about whether the case 
should proceed to trial.

The decision to prosecute was not “political”.  Mr. Nifong didn't win the 
black vote and he lost much of the more influential rich white vote.  
Clearly, the best political option for him personally would have been NOT to 
bring charges.   That he did anyway suggests he has a strong case because 
statistics consistently reveal that prosecutor disproportionately decline to 
prosecute even valid rape cases when they believe they can't win a 
conviction.   They certainly don't want to waste their budget on frivolous 
cases, much less frivolous cases that will cost them a fortune because of the 
wealth of the defendants and will likely bring great political pressure to 
bear on the administration of justice.   In short, powerful pressures would 
have militated against bringing charges in this case if there were truly "no 
evidence".

The Wilmington Journal reported last June that the victim rejected over 2 
million dollars from people “on behalf of Duke” to back out of the case.  

The photo line-up was not unfair.  Not all party attendees were players and 
Duke's own president said that “many” players were not at the party.  Thus, 
it is false to say there were “no wrong answers” when the victim was shown 
only photos of lacrosse players during the initial identification process.

Mr. Nifong's reliance on responsible others to talk to the victim is proper.  
It protects him from being removed from the case as a “witness”. 

DNA evidence supporting the defense was not "held back" by the prosecutor.  
The defense and the entire nation learned last spring that DNA in the rape 
kit did not match the defendants.  Information that was “held back” involved 
other men's DNA and it is unclear to this date whether that DNA was from 
recent or very old sexual activity as reports indicate the samples were taken 
from a variety of places, including the victim's underpants.   Microscopic 
fragments of sperms cells can survive even laundering.  This means the "other 
mens" DNA could have been from weeks or months earlier.  This 
constitutionally protected private information should never be disclosed 
unless a judge deems it relevant.   The defense argued at a hearing in 
December that the fact the victim had sexual contact with other men provides 
an alternative explanation for the victim's vaginal injuries.  The judge 
agreed and the evidence was ordered released to the defense.   This was not a 
violation of the defendants' rights, it's called due process for the sexual 
privacy rights of the victim and the "other men".

Days after the judge allowed the "other mens" DNA to be released, the 
prosecutor withdrew the “rape” charge, which under North Carolina law 
consists ONLY of penile/vaginal penetration.  Other penetration crimes are 
covered by the remaining equally serious “sexual offense” indictment.   This 
may have been a brilliant move because with no rape charge, the victim's 
sexual past and the "other mens" DNA is irrelevant - and the cause of justice 
is spared a salacious and distracting sideshow.  

Claims that Mr. Nifong should be investigated by federal officials for 
violating the defendants' constitutional rights are curious given that the 
judge handling the case has said nothing critical of Mr. Nifong.  If there 
were truly any constitutional violations, the defense would have brought them 
to the attention of the judge at the time of the alleged infraction.   That 
the defense opted against asking the judge to take action and instead sought 
redress in the court of public opinion speaks volumes about whether they 
sincerely believe the defendants' rights were violated. 

Similarly strange is the ethical complaint filed against Mr. Nifong and 
signed by current or former defense attorneys (one appears to be a Duke alum) 
alleging the prosecutor committed numerous violations of his professional 
duties by making certain public statements about the case.   People who have 
watched this case unfold are shaking their heads wondering why there wouldn't 
also be a complaint against the defense attorneys for their relentless, 
repetitive and profoundly unfair public statements they have made at every 
turn since day one including the most disturbing claim: “that there is no 
case”.   All lawyers in North Carolina are ethically obligated under 
disciplinary rule 8.4(c) NOT to engage in dishonest conduct -- yet on 
December 23, 2006, defense Attorney Wade Smith publicly called on Mr. Nifong, 
to “end this suffering … end this case . . . because there is no case to 
bring”.   Attorney Smith knows that if that if there really were no case, he 
would AND SHOULD demand an immediate trial to end his client's “suffering”.  
But none of the defense attorneys mentioned wanting an immediate trial during 
any of their recent PR stunts.

And let's get real - the most serious ethical violation for a prosecutor is 
the one that forbids them to bring a case where there is, as the defense 
claims, no evidence.  Yet in the many pages of alleged ethical violations, 
there is no reference to the provision that forbids Mr Nifong to proceed with 
charges based on the absence of sufficient evidence.   

Reasonable people might conclude that the reason Mr. Nifong is not accused of 
violating that ethical provision is the same reason he's being attacked on 
television RATHER than in front of the judge handling the case.  It would 
give him free reign to reveal ALL the evidence in the case.   

I don't know all the prosecutor's evidence but I'm certain the victim, like 
any human being, deserves her day in court and I'm certain the public has 
right to know the WHOLE truth before deciding whether justice has been 
served.  Let the jury, not the pollsters, render judgment.   

Wendy Murphy, JD, former sex crimes prosecutor, adjunct law professor, New 
England School of Law, Boston - 617-422-7410