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The Duke Non-Rape Case

Injustice in Black and White

by MICHAEL DONNELLY

"One would wonder why one needs an attorney if one was not charged and had not done anything wrong."

– Michael B. Nifong, Durham, NC prosecutor

This part is true: on March 13, 2006, the nationally second-ranked Duke University Lacrosse team held a party at 610 N. Buchanan Street in Durham, North Carolina. As seen at most college parties of the sort, underage drinking did take place. In addition, two strippers, er exotic dancers, were hired to perform at the party.

Like lacrosse players at such elite schools attended mostly by white children of privilege, these athletes were known for their macho swaggering around campus. In the previous three years, 15 of the current 47 (46 white) players on the team have been charged with alcohol-fueled offenses, all minor, such as public and underage drinking (not even close to "half of the team" as charged by Duke dean of students, Sue Wasiolek, as she threw gasoline on the fire.)

So when one of the strippers, Crystal Gail Mangum, an African-American woman charged that she had been strangled, raped, sodomized and forced to perform oral sex, police and prosecutors had little trouble believing the charges. She claimed to have broken several fake fingernails clawing her attackers.

Town vs. Gown

With the private Duke bastion of privilege on one side of town and the working class, historically-black public North Carolina Central University where the 28-year-old accuser attended on the other, the case was instantly charged with racial and class overtones.

The allegations led to the suspension of the Lacrosse team’s season, the resignation of its coach and a public rebuke of the entire team from Duke president Richard Broadhead.

As noted, this part is all verifiable. From this point on, the truth becomes very elusive, though it is finally seeing the light of day. The lacrosse players who rented the house immediately cooperated with police. They volunteered to take lie detector tests and were turned down. They allowed a search of the premises.

Quickly, Durham Prosecutor Michael Nifong indicted players Dave Evans, Collin Finnerty and Reade Seligmann, charging them with first-degree forcible rape, first-degree sexual offense and kidnapping; despite ATM receipts, a cabbie’s testimony and photographic evidence showing that Seligmann, and possibly Finnerty, was not even at the house at the time of the alleged assault.

Bad behavior on both side quickly ensued. Supporters of the accuser made it clear that they wanted justice for past wrongs, regardless of the facts of the case.

And, abominable e-mails and comments were made by members of the lacrosse team and their supporters. Infamously, one team member sent out an e-mail claiming he’d like to kill and skin some strippers.

The Frame up

Mangum was shown two photo lineups and could not pick out her alleged attackers. So, in a clear violation of procedures governing such lineups, she was then shown an array of photos of just the lacrosse team members. In a video, she is seen randomly pointing out the three accused.

Duke law professor James Coleman wrote;

"According to the police account of the identification, the police officer who presided over the proceedings told the alleged victim at the outset that he wanted her to look at people the police had reason to believe attended the party. Thus, the police not only failed to include people they knew were not suspects among the photographs shown the woman, they told the witness in effect that there would be no such ‘fillers’ among the photographs she would see. This strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice."

When the second stripper, Kim Roberts, noted that she had been with Mangum for all but five minutes and called the rape charges a "crock," the accuser responded by charging Roberts with being in on the assault and of robbing her. Nifong’s response? "No comment."

Tainted "Evidence"

Quickly, Nifong attained court orders for the DNA testing of the 46 white team members. And quickly thereafter, the state lab testing found no DNA from any of the players, not even any on the fake fingernails found in the bathroom. So Nifong hired a private firm to dig further into the DNA. Again none was found from the players, but what was found was DNA from seven other males on the accuser’s body and clothing. The accuser had said she had no sex with anyone for at least a week before the party, a claim the prosecutor repeated to the media.

Nifong then conspired with the private testing firm, DNA Security, to conceal the exculpatory results. DNA Security’s director Brian Meehan testified under oath that he and Nifong agreed to suppress the true results.

Nifong not only conspired to cover up the DNA evidence, he also repeatedly told the presiding judge W. Osmond Smith III, that it did not exist. It’s not just a moral issue, but a legal obligation of the prosecutor to turn over such exculpatory evidence. Nifong violated the law, as well as common decency.

On May 18, the prosecutor gave the defense 1,200 pages of evidence. Nifong lied; "The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant. Should we learn of the existence of any such material or information in the exercise of due diligence, we will notify the defendant."

Despite the lack of DNA evidence, Nifong stated that he could go forward with just Mangum’s testimony. So was it any surprise that he dropped the rape charges when the accuser told yet another version – that despite the lurid brutal gang-rape story – Nifong now says that the accuser "cannot at this time testify with certainty that a penis was the body part that penetrated her vagina"? Well, a little surprising, as Nifong twice has prejudicially stated to the media, "I am convinced there was a rape, yes, sir."

But the ever-convinced Nifong is not done yet. He still charges the defendants with kidnapping and sexual offense. This ludicrous continuation of unsubstantiated charges prompted an overdue Ethics Complaint from the NC Bar, mostly centered on Nifong’s comments to the media, noting that "Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation."

In an article on the Ethics Complaint, Professor Coleman told the local Durham News-Herald, "I think that early in the case, his conduct clearly violated the rules. I don’t think any explanation he makes can fly."

On Friday, Dec. 29, the North Carolina Conference of District Attorneys issued a "recuse yourself" public letter to Nigong;

"It is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority."

The Real Story

From the beginning the case has mirrored that of Tawana Brawley, who at 15, claimed that six white men had kidnapped and raped her, smeared her body with feces and wrote racial slurs on her. Similarly, the media had a field day with that one. Her opportunistic supporter Rev. Al Sharpton was successfully sued and a $345,000 judgment entered against him and two attorneys for their publicly smearing of New York prosecutor Steve Pagones, as "a racist and a rapist." Turned out Brawley was lying to cover up her skipping school to visit an ex-boyfriend. And, to this day, Sharpton has neither paid the judgment nor apologized to Pagones.

In the Duke case, the opportunist is Michael Nifong himself. The white prosecutor was up for reelection in the predominantly black town and one of his challengers was African-American. Counting on the racially charged nature of the case, Nifong went to NC Central to court black support. He won the nomination and faced no real opposition in the general election.

Even as all the damning evidence of his deceit trickles out, Nifong, like Sharpton before him, remains defiantly unrepentant, stating recently, "You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide. If you ask me, to everybody but a reporter for an out-of-town newspaper, the quadruple homicide is probably the more significant case.

"But because we have some of these other sexy issues here, you all are flipping out over this particular case, which is not the most significant case in our office. It doesn’t mean it doesn’t get attention. What I’m saying is in the overall pecking order of things, it’s not the most important thing that we’re doing."

In the overall pecking order of things, Michael Nifong was fully prepared to sacrifice the futures of three innocent young men to advance his career. The New York Daily News editorialized; "Yes, there was a crime here. And Nifong committed it."

It’s just a matter of time before Nifong is removed from the case, if not justifiably from office, and the athletes exonerated. How soon the players, their team and their university can regain their reputations is another story.

MICHAEL DONNELLY wonders what will happen the next time an African-American woman is assaulted; a hideous, though statistical certainty. He can be reached at pahtoo@aol.com