Thursday, January 04, 2007

Prosecutor Tainted Duke Rape Case

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Independent Review Necessary

The Cool Justice Report
Jan. 4, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Members of the Duke University lacrosse team were accused last year of kidnap and rape by an exotic dancer. The dancer was hired by the team as entertainment at a drunken college bash.

Mike Nifong is the prosecutor in the now infamous "Duke Rape Case." Last month, despite his insistence that the evidence against the three was strong, Nifong dismissed the most serious rape charge. The accuser now can no longer be certain that there was the type of penetration necessary to prove the crime of rape in North Carolina.

Nifong has come under considerable criticism as the case has slowly unraveled. First, there was the revelation that DNA evidence failed to implicate any of the young men arrested. Cynics and critics claimed Nifong was seeking headlines and national attention to support his re-election. The case exposed a seedy underbody to college athletics -- the idea of boys gone wild.

Duke University has long been acknowledged among the nation's elite. The men's and women's basketball programs have consistently ranked among college's best, exalting the image of the true student athlete. The arrests of these young men tarnished this reputation. The case also took on racial undertones, a black stripper victimized by privileged white boys.

Accusations of sexual assault are serious matters. The crime destroys its victims. The emotional scars last far longer than the encounter or any physical wounds.

For years, victims of sexual assault found themselves battered by the justice system as sorely as by their attackers. Police were not always sympathetic. Often little physical evidence existed to corroborate the accusation. Victims were attacked by zealous lawyers; exposed for any prior relaxed morality.

The legal system eventually began to right itself. Special interest groups, many times led by former victims, began to lobby legislatures and the courts for better treatment of rape victims. Rape shield laws were enacted, preventing defense lawyers from raising the past sexual escapades of accusers.

Penalties became more severe. Sex offenders must register online. Some states have even began to entertain laws that would prohibit the release of sex offenders after they have completed their prison sentences, if they continue to present a risk of repeat behavior.

The pendulum has swung substantially in favor of the victims of sexual assault. The advent of DNA analysis has impacted prosecutions, presenting irrefutable proof of both guilt and innocence.

There should be no room in the criminal justice system for personal political agendas.
The impact on the lives of accusers and accused, alike, demand careful thought and thorough investigations before the decision is made to initiate prosecution. Once such an accusation is made public the stain is indelible.

The American Bar Association has promulgated Model Rules of Professional Responsibility. Every state has adopted some form of ethical rules for lawyers. According to the Model Code: "The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."

The obligation of a prosecutor is not to convict but to insure that justice is served. Exonerating the innocent is as integral a responsibility as prosecuting the guilty. Prosecutors, and not defense counsel, have intimate access to the evidence assembled by investigators. Unless released by the prosecutor such evidence might never come to light. The rules of ethics also require a prosecutor to reveal such exculpatory evidence to the defense. The failure to do so can lead to the reversal of a conviction.

In the Duke case the prosecution must explain why, now, it has revealed the absence of proof of such an essential element. Either this information was known to the prosecutor and improperly withheld from the defense; or, the investigation was flawed for failing to determine if all of the elements of the crime could be proven beyond a reasonable doubt.

Two serious charges remain in the Duke case. An independent prosecutor should be appointed to review the case to determine whether the proof exists to support these last charges. Prosecutor Nifong has forfeited the public trust by the failing to recognize his obligation to the truth and to the system of justice. He has placed the lives and reputations of accuser and accused in jeopardy by his conduct.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV.
Andy Thibault, author of Law & Justice In Everyday Life and a private investigator, is an adjunct lecturer of English and a mentor in the MFA writing program at Western Connecticut State University. Thibault also serves as a consulting editor for the literary journal Connecticut Review. Website, and Blog,

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