A Dirty Game
By STUART TAYLOR JR. and KC JOHNSON
December 27, 2006; Page A8
It's no secret that hugely disproportionate numbers of the innocent people oppressed by abusive prosecutors and police in this country are African-Americans. Now one of the most outrageous cases of law-enforcement abuse is unfolding in Durham, N.C., home of the Duke lacrosse case. And African-Americans are leading the cheers for the oppressors. Why? The poison of identity politics, plus class hatred of the prosecutor's three main victims, well-off white men falsely accused of rape by an unstable black "exotic dancer," and a deeply dishonest district attorney.
Last spring, Durham D.A. Michael Nifong, who is white, was facing a primary in a racially divided electorate. He was badly behind and out of campaign money, excepting almost $30,000 in loans from his personal funds. Then came the accuser's allegations. Mr. Nifong responded by assuming control of the police investigation and making racially inflammatory statements pronouncing the Duke lacrosse players guilty of rape. Even as evidence of their innocence accumulated, he brought rape, sexual assault and kidnapping charges that fed the racial resentments he had stoked. The black vote put him over the top in both the May 2 primary and the Nov. 7 general election.
Black leaders -- including Durham Mayor Bill Bell, the appallingly demagogic North Carolina NAACP and others -- should know better. So should the powerful, identity-politics-obsessed hard left of Duke's own faculty, 88 of whom issued a statement in April saying "thank you" to protesters who had branded the players rapists. And so should the media, most of which gleefully joined the clamor last spring.
It has been clear for many months that the rape claim is almost surely a lie. But not until the DA's dramatic dismissal last Friday of the rape (but not the sexual assault and kidnapping) charges did Mr. Nifong enablers such as the New York Times and Duke President Richard Brodhead begin distancing themselves from his oppression of three innocent young men.
How can we be confident that the charges are false? Let us count the ways: The police who interviewed the accuser after she left the March 13-14 lacrosse team party where she and another woman had performed as strippers found her rape charge incredible, and for good reason. She said nothing about rape to three cops and two others during the first 90 minutes after the party. Only when being involuntarily confined in a mental health facility did she mention rape. This predictably got her released to the Duke emergency room for a rape workup, whereupon she recanted the rape charge.
Then she re-recanted, offering a ludicrous parade of wildly implausible and mutually contradictory stories of being gang-raped by 20, five, four, three or two lacrosse players, with the other stripper assisting the rapists in some versions. After settling on three rapists, the accuser gave police vague descriptions and could not identify as a rapist any of the 36 lacrosse players whose photos she viewed on March 16 and 21. These included two eventual defendants: Dave Evans, whom she did not recognize at all, and Reade Seligmann, whom she was "70%" sure she had seen at the party, but not as a rapist.
All of the 40-odd other people at the party have contradicted every important part of the accuser's various accounts. The second stripper called the rape claim a "crock" and said they had been apart less than five minutes. The accuser told doctors she was drunk and on the muscle relaxant Flexeril, whose side effects include badly impaired judgment when taken with alcohol. She has a history of narcotic abuse and bipolar disorder, a mental illness marked by wild mood swings from mania to depression, and spent a week in a mental hospital in 2005.
In court filings last week, even Mr. Nifong conceded that, contrary to his claims since March, medical records show no physical evidence of rape -- let alone injuries consistent with the accuser's April claim of being beaten, kicked, strangled and raped anally, orally and vaginally by three men in a small bathroom for 30 minutes. Above all, DNA tests by state and private labs, which Mr. Nifong's office had said would "immediately rule out any innocent persons," did just that. They found no lacrosse player's DNA anywhere on or in the accuser and none of her DNA in the bathroom.
Yet two weeks ago we learned -- only because dogged defense lawyers cracked a prosecutorial conspiracy to hide evidence of innocence -- that the private lab did find the DNA of "multiple males" in swabs of the accuser's pubic hair, panties, and rear after the supposed rape. None of this DNA matched any lacrosse player.
After the first two photo sessions, it was clear that the accuser had no idea what her rapists (if any) looked like. By the end of March, it should have been clear to any prosecutor that there probably had been no rape at all. But Mr. Nifong had driven the black community into a rage with dozens of guilt-presuming, race-baiting attacks on the lacrosse players like this one, on March 27: "The contempt that was shown for the victim, based on her race, was totally abhorrent."
Such statements flagrantly violated North Carolina ethical rules requiring prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." They also poured gasoline on the flames of racial rage.
Black leaders and voters made it clear that Mr. Nifong's only chance of winning the primary was to put his money where his mouth was by indicting the lacrosse players. He closed his door to defense lawyers offering evidence of innocence and rigged a multiple-choice test with no wrong answers. On March 31, he instructed police to conduct a third photo ID lineup, and to show the accuser (and tell her that she was being shown) photos of only the 46 white lacrosse players.
On April 4, when this third photo-ID process took place, the message to the accuser was, effectively: Pick three, any three. At random, if you like. You can't go wrong. This setup trashed the defendants' constitutional due process rights and specific Durham, state, and federal principles for identification procedures. To test the reliability of often-mistaken eyewitness ID's, these principles require showing at least five "fillers" (non-suspects) with each suspect and telling the witness that the lineup may or may not include a suspect. Mr. Nifong recently defended his procedure through word games, asking, "What is a lineup?"
The accuser's responses demonstrated her unreliability in ways too numerous to detail here. For one, she picked four as rapists. For another, the only player she twice identified with 100% certainty as attending the party could prove he was in Raleigh that night. But the accuser gave Mr. Nifong enough to obtain three indictments from a rubber-stamp grand jury. When he went to the grand jury, Mr. Nifong knew that the DNA results were inconsistent with the rape allegation. But he pressed ahead with the charge until the defense exposed his efforts to conceal the forensic evidence. Then he abruptly changed his theory of the crime.
The case is now unraveling so rapidly as to be ridiculed on "Saturday Night Live." Mr. Nifong is on his way to being disbarred, unless North Carolina's legal establishment wants to be held up to national scorn. He faces lawsuits and at least a remote risk of federal criminal investigation. As for Durham's black leaders, and many in the media, and much of Duke's faculty, history will mark them down as enablers of abusive, dishonest law enforcement tactics. They will share responsibility for the continued use of such tactics, mainly against black people, after the Duke lacrosse players' innocence has become manifest to all serious people and the spotlight has moved on.
Mr. Taylor, a National Journal columnist and Newsweek contributor, and Mr. Johnson, a history professor at Brooklyn College and CUNY Graduate Center, are writing a book about the Duke case.