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Opening Argument - An Outrageous Rush to Judgment Opening Argument - An Outrageous Rush to Judgment

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Opening Argument - An Outrageous Rush to Judgment

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The trashing of Duke's lacrosse team by many in the media may be shifting gears as the Durham, N.C., district attorney's case against two players indicted for gang rape falls apart and evidence of gross prosecutorial misconduct mounts. I can't rule out the possibility that there may be some horrible truth in the shifting claims by an African-American "exotic dancer" that the two indicted defendants and another team member gang-raped her in a bathroom. But accumulating evidence strongly suggests that the charge may well be a lie.

 

The innocence of at least one defendant seems clearly established by rock-solid evidence that he could not possibly have been raping anyone during the half hour after the accuser and another woman had done their four-minute dance at a team party at midnight on March 13. The case against the other defendant also seems weak.

And the evidence that perhaps no Duke lacrosse player committed rape should make a lot of people ashamed of themselves: District Attorney Mike Nifong, the Durham police, many in the media, politically correct Duke professors, spineless Duke administrators, and others.

(Disclosure: A parent of one team member is a friend of mine, and I might not be writing about the case if my analysis of the evidence supported the rape charge.)

 

Instead of backing off, many in the rush-to-judgment crowd have simply hedged their presumption of guilt and shifted to smearing the lacrosse players -- including sons of three retired New York City firefighters, and others from modest backgrounds -- as a bunch of privileged, thuggish, racist, and (horrors) white jocks, suggestive of Southern slaveholders.

As to the rape charge, consider some evidence.

* Nifong's office asserted in a March 23 application to take DNA evidence from 46 team members that the test would "immediately rule out any innocent persons." But after the testing began, Nifong suggested that perhaps the men used condoms. And when the results became public on April 10 -- that no trace of any player's DNA was found on the accuser's person, clothing, or even the fake fingernails with which she claims she clawed an assailant's arms -- Nifong simply ordered new DNA tests.

Conveniently, the new results won't come back until after Nifong's May 2 primary election. He hopes to win by courting Durham's Duke-resenting black community, which has been pushing for prosecution of the white lacrosse players.

 

* The photo-identification process that led the 27-year-old accuser to finger the two defendants -- three long weeks after the alleged rape -- was so grotesquely suggestive and unreliable that one expert compares it to "a multiple-choice test with no wrong answers." Good prosecutors test eyewitness identifications' reliability by including nonsuspects in photo displays and lineups.

Nifong ordered that this accuser be shown photos only of 46 lacrosse team members. The message: Pick a face -- any face.

* The accuser's detailed account is not only contradicted by the absence of DNA evidence and by the accounts of team members but is also inconsistent with photographic evidence of her location and condition at various times and with the eyewitness account of a neighbor.

* Specifically, evidence including digital photos taken at the party -- with tamper-proof metadata recording precise times -- shows that the two women started dancing at almost exactly midnight. The accuser was obviously in a drunken or otherwise impaired condition. The other woman was angered by a suggestion that they use a broomstick as a sex toy. Both stopped dancing after four minutes. The team members, who had paid $800, felt cheated.

The alleged rape would have to have occurred between 12:04 and 12:31 a.m., when a photo shows the accuser on the back stoop of the house where the party was held. The accuser has claimed that three white men raped and sexually assaulted her "anally, vaginally, and orally" for "an approximate 30-minute time period."

When would defendant Reade Seligmann have had time to do that? Cellphone records show him making at least seven calls between 12:05 and 12:14 a.m. The cabbie who answered the 12:14 call has said that he picked up Seligmann at 12:19 and took him to an ATM (where he swiped his card at 12:24), to a fast-food restaurant, and then to his dorm (where he swiped in at 12:46).

* The accuser has claimed that her rapists inflicted injuries by strangling, hitting, and kicking her. But photos show that she already had cuts and bruises on her legs when she arrived at the house. The 12:31 a.m. photo shows her smiling and looking relaxed, with her clothes skimpy but in good order. A 12:37 a.m. photo shows her lying on her side on the back stoop after an apparent fall, with new cuts and scrapes. A 12:41 a.m. photo shows her being helped by a white man into the other woman's car.

* Many a media report has said that the Duke emergency room found "signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally." But that is the state's characterization, in a March 23 sworn statement, of still-secret "medical records and interviews." The only specific assertion attributed to the forensic sexual-assault nurse -- that "the injuries and [the accuser's] behavior were consistent with a traumatic experience" -- says nothing about rape. A sloppily drafted report? Or sly distortion? Time will tell.

* Both women have criminal records and little credibility. The accuser, said to be a student at a mostly black college and a mother of two, has contradicted her own accounts to police by telling her father that the rapists left no DNA because they used a broom. She copped a misdemeanor plea in 2002 to avoid a felony trial for stealing a taxicab, leading police on a high-speed chase, and trying to run over an officer. She spent a week in a psychological hospital last year. She worked through an "escort service" for which she had previously gone on paid, one-on-one "dates."

The other woman, Kim Roberts, initially said she did not believe the rape claim but later changed her tune. She recently obtained a favorable order from Nifong reducing her bond for violating her probation on a 2001 conviction for embezzling $25,000 from her employer. She has e-mailed a New York agent to inquire "how to spin this [rape case] to my advantage." And she has admitted that after leaving the party in anger, she made a 911 emergency call falsely accusing the lacrosse players of shouting racial epithets at her -- including the "N" word -- as she drove past the house.

* Nifong has rudely spurned repeated requests by defense lawyers for a chance to show him exculpatory evidence. Such conduct is not usually seen as grounds for disbarment. It ought to be.

* For weeks, Nifong made numerous inflammatory and racially charged statements expressing certitude that there had been a rape and holding up the lacrosse players to condemnation as a bunch of "hooligans." (He has more recently declined interview requests. Through his legal assistant, Nifong repeatedly declined to respond to my questions for this article, drafts of which I e-mailed to his office.)

As to the stereotyping of Duke's lacrosse players as privileged, thuggish, and racist, the details -- including the sickening e-mail about killing strippers and cutting off their skin that one sent hours after the alleged rape -- are a subject for another day. Among 46 jocks, there may be a few bad kids. Among college students in general, underage drinking is the rule and hiring strippers is fairly common. Some sororities hire male strippers.

The many claims that the lacrosse players used racial taunts seem questionable, with one exception. Public documents in the case don't say the accuser reported racial taunts. Roberts, the other woman, has claimed that the "N" word was used. But she is a confirmed liar; the team members emphatically deny this; and the one black Duke lacrosse player and his family have never complained of racism on the team.

That leaves the neighbor's clear recollection that as the two women drove away, someone yelled: "Hey, bitch, thank your grandpa for my nice cotton shirt." This was ugly -- but mitigated by the Roberts taunt to which he was responding: "You limp-dick white boys, you're not real men. You had to pay for us."

On April 25, Washington Post columnist Eugene Robinson weighed in with the standard smear of "privileged white kids who play lacrosse," adding, "It's impossible to avoid thinking of all the black women who were violated by drunken white men in the American South over the centuries."

Reading such stuff, it's impossible to avoid thinking of the 22-year-old black student who told Newsweek that he wanted white Duke students prosecuted even if innocent. "It would be justice for things that happened in the past," he explained. Disgusting.

 

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