Duke Lacrosse Rape Cases Dismissed:

It is being reported that the rape charges in the Duke lacrosse case have been dismissed.

Charges of kidnapping and sexual offense remain.

Of course, Nifong times the announcement so it gets the minimal press coverage possible - the Friday before the Christmas weekend. Absolutely despicable.
12.22.2006 2:05pm
Ex-Fed (mail):
Isn't this simply a tactical maneuver? It removes the weakest charge (contradicted, as it seems to be, by the DNA evidence) and eliminates, or renders far less useful, one of the most profitable avenues of cross-examination.

If a accuser says my client did X, Y, and Z, and I can fairly conclusively show that Z is untrue, that's great at trial, because it weakens credibility regarding X and Y as well. But if the witness only testifies about X and Y at trial, I usually wouldn't bring up that the accuser previously also claimed Z in order to then impeach them about Z. I bet most trial lawyers wouldn't either.
12.22.2006 2:08pm
Mark Buehner (mail):
Despicable is indeed the only word to describe this guy. He has to know by now his witness is completely unreliable. Is this how we prosecute now? Fill a shotgun full of charges and whatever manages to not be completely blown out of the water by exculpatory evidence is what goes to trial?
12.22.2006 2:22pm
According to the article on Breitbart linked at Drudge, the accuser says that she is not sure she was penetrated. Anyone who has ever been penetrated who thinks that is true, please raise your hand.
12.22.2006 2:26pm
At this point in time Nifong is probably no longer concerned with any convictions, he is trying to save his own skin.
12.22.2006 3:03pm
Let's hope the Feds indict Nifong. Anyone else heard how he basically coerced the independent lab into witholding Brady evidence? It's insane.

It's also ridiculous that he's keeping the "sexual assault" charge given that NC law requires it to include a "sexual act" defined as "cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse [or] the penetration, however slight, by any object into the genital or anal opening of another person's body" The only of those that do not involve penetration are cunnilingus and analingus, hardly credible charges given what the accuser has previously said.

Not that Nifong cares about the law or justice, demonstrated by his unwillingness to talk to either the accuser or the accused, or to investigate any of the exculpatory evidence (or really anything at all).
12.22.2006 3:14pm
glangston (mail):
John Grisham's newest book (non-fiction) deals with a man wrongly convicted of murder and details the efforts of the DA to withhold exculpatory evidence (quite a bit).

This needs to go to trial soon. It seems that is the solution the courts have to what might otherwise be termed "malicious prosecution".

"Declining to expand the tort of malicious prosecution, a unanimous Supreme Court in Sheldon Appel, supra, 47 Cal.3d at page 873, observed: "While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded." (Accord Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 638-640[255 Cal.Rptr. 18]; see also Tellefsen v. Key System Transit Lines, supra, 198 Cal.App.2d at p. 615 [Court of Appeal has remedies for frivolous appeals]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [255 Cal.Rptr. 315]
12.22.2006 3:17pm
JosephSlater (mail):
I'm shocked, because I remember Ed Meese once explaining criminal law and procedure as follows: "You don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect."
12.22.2006 3:58pm
Harry Eagar (mail):
glangston, please tell a non-lawyer why 'going through a trial' that will destroy the assets of almost any family in America is a desirable solution to the problem of a malicious investigation/charges.
12.22.2006 4:39pm
raised hand:
If the purported penetrator is smaller than average, or perhaps is not entirely tumescent, it is possible to be uncertain.
12.22.2006 5:02pm
Its sad that it takes a case with relatively well-off defendants to get people to pay attention. If Nifong is running amok in this case (and it certainly appears he is), how likely is it that he displays a similar disregard for proper procedure and the rights of potentially innocent suspects in other cases?

Something else I don't understand, and maybe prosecutors can fill me in - I've always liked to believe that prosecutors will not prosecute someone unless they themselves believe the person is actually guilty beyond a reasonable doubt. Given Nifong's apparent "hands off" approach to interacting with the accuser or the accused, how is it that he can have made a determination concerning the defendants' guilt? Or do prosecutors just not care, operating under the theory that if the evidence comes down to a credibility battle between the accuser and the accused, they will just put the case in front of a jury and let the chips fall where they may?
12.22.2006 5:07pm
legitprop: State prosecutors are elected officals. They prosecute if they think it will improve their political position. That's why Nifong started this thing, but he's so incompetent and stubborn that it's tail-spinned out of control. Legal standards are irrelevant except to the extent of whether a jury will buy it or a judge will throw it out.
12.22.2006 5:20pm
David M. Nieporent (www):
Zooba, those aren't accurate quotes.

Sexual act " does not include vaginal intercourse," but it "also means the penetration, however slight, by any object into the genital or anal opening of another person's body."
12.22.2006 5:48pm
Federal Dog:
So the DA's office down there finally interviewed the complainant?
12.22.2006 6:10pm
The Drill SGT (mail):

Federal Dog:
So the DA's office down there finally interviewed the complainant?

If you can believe it, they talked with her in late March and then again on 11 April. Of course on 10 April, Nifong and the DPD learned that contrary to the victim's statement, DNA from 5 unknown men were found in her panties and anal area. They talked with her on the 11th and didn't ask about the discrepancy. Then waited 8 months and after the coverup of evidence fell through, they go back and ask again. she waffles and backs down.

Nifong hopes that by dropping the rape charge he can avoid having his victim's story torn up and also having his witness (Meehan) testify about how Meehan conspired with Nifong to commit crimes. However the Victim's statement seems pretty inflexible, She previously stated that she was penetrated anally, vaginally and orally, and that her attackers ejaculated. Specifically, she claimed that the rapist ejaculated in her mouth, and she spit the semen out on the bathroom floor, and could taste the semen afterward. Of course no semen was found on the floor or on oral swabs.

How she backs off that statement with credibility is amazing. If it wasn't so expensive for the players and risky, it would be a great show to watch the cross examination.
12.22.2006 6:37pm
Harry Eagar (mail):
I don't know who Jeff Taylor is, but I find him at ReasonOnLine saying, 'Attorney General Alberto Gonzales then, incredibly, becomes the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials. And truth does not get much uglier than that.'

Taylor seems to dislike the idea of the federales intervening in local prosecutions. Funny that. When I was young, liberal Southerners welcomed federal intervention against the local prosecutors in racial cases.

Another reason, I guess, why I am not a libertarian.
12.22.2006 6:46pm
David M.: Thanks for pointing out the grammar ambiguity in my editing. It needs a comma or re-arranging.Either way, the "penetration" by an object inherently means there is penetration, so I don't see what you are proving here.
12.22.2006 7:04pm
Bill Poser (mail) (www):
I didn't get the impression that Jeff Taylor is concerned with federalism issues. An alternative interpretation is that the amazement he expresses at Gonzales as defender of civil liberties is due to Gonzales appalling record on civil liberties. Remember that Gonzales has spent much of his time defending the dubious detention of "enemy combatants" and their trial in kangaroo courts, wiretaps in violation of statute, and torture. He's also the the guy who made fun of the "quaint" provisions of the Geneva Conventions, with which he was obviously unfamiliar. For such a person to take on the role of protector of civil liberties is indeed ironic.
12.22.2006 7:09pm
David M. Nieporent (www):
Zooba, I'm saying that your analysis was wrong. The sexual assault charge includes penetration by objects (but not penis). What he did was twist her arm to change her story so that it didn't directly conflict with the forensic evidence.
12.22.2006 7:38pm
David Maquera (mail) (www):
Nifong is such a joke!
12.22.2006 8:13pm
Harry Eagar (mail):
Bill, in his first sentence, Taylor writes: 'Nifong has made fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government.'

Perhaps he does not include himself among 'fans of limited government,' but he does not say that anywhere.

I grew up in the South, the descendant of South Carolinians who worshipped John C. Calhoun -- one of my grandfathers was named for him. I am not 'a fan of limited government.' Been there, done that, didn't care for the results.
12.22.2006 8:15pm
meld: From what I understand, the accuser was seen behaving in a way that suggested she was stumbling drunk. I've never been that drunk, but it wouldn't surprise me if given that, she was incapable of remembering whether or not she was penetrated. (Though as you are presumably aware, the evidence suggests that she wasn't penetrated by the accused.)
12.22.2006 8:20pm
Ryan Waxx (mail):
Being drunk doesn't excuse someone from raping another person.

So, does being drunk protect you from the consequenses of false accusation? What options are available to the victims... by that I mean the defendants?
12.22.2006 8:55pm
David M. Nieporent:
I guess I got news from a less than fully accurate source that said she was not penetrated, which would mean that of course she was not penetrated by an object under the statute. But apparently the only claim by the DA is now she doesn't know if "a penis was the body part that penetrated her vagina."

Not that that does anything to explain why she had the semen of several other men in her panties and anal area.
12.22.2006 9:08pm
been there (mail):
Waxx - in Oregon (possibly in other states), being drunk does indeed make the "victim" unable to claim rape, assuming she in conscious and ingested the alcohol willingly.

Or so the DA's office told me when I made a complaint.
12.23.2006 12:00am
American Psikhushka (mail) (www):

Of course you decide your own views, but you don't have to subscribe to strict federalism to be libertarian. A lot do, but in my opinion if the bloated government is already there a libertarian can in good conscience employ whatever resources are available to protect oneself from illegal force, fraud, rights violations, etc.
12.23.2006 1:45am
Harry Eagar (mail):
Thanks, A.P. There's no party or faction that fits me, but libertarians make me feel less unwelcome than any of the others.

Instrumentally, intervention of the federal government in southern prosecutions has a good record with me, going all the way back to a murder trial in Georgia in 1893 where my grandfather was the witness against the Klan. If it had been up to the sheriff in Dalton and not the Attorney General in Washington, I'd never have been born.
12.23.2006 2:12am
Bob Smith (mail):

in Oregon (possibly in other states), being drunk does indeed make the "victim" unable to claim rape, assuming she in conscious and ingested the alcohol willingly.

Such a rule is routinely used to deny making a man a "victim". I've never seen it used to deny making a woman a "victim", even if she was willingly intoxicated. Fifty years ago, maybe, but not now. It's notoriously difficult to get DAs to file rape charges when the victim is male unless he's a child.

Are you by chance male? If so, it does not surprise me that the DA told you to go away with what I believe is a complete lie about the law in Oregon. I don't believe Oregon's sexual assault statute says that.
12.23.2006 2:22am
Public_Defender (mail):
Kidnapping is very easy to prove. Any small restraint of physical liberty could be enough. Maybe Nifong has other witness statements saying that the accused held down the "victim." A second or two would typically be enough.

Nifong has been a walking example of prosecutorial misconduct in this case, but cheating prosecutors still win cases, and they are rarely disciplined.

In my community, defense lawyers have a joke:

What do you call a proescutor who cheats?

Your honor.
12.23.2006 10:32am
Or do prosecutors just not care, operating under the theory that if the evidence comes down to a credibility battle between the accuser and the accused, they will just put the case in front of a jury and let the chips fall where they may?
Although they all "talk" about the "we are for justice" doctrine, prosecutors seldom adhere to it. Virtually all prosecutors, virtually all the time, will take any case with a better than 50% chance of winning to the jury saying "Let's let the jury decide!" Independent RESPONSIBILITY is something elected officials and public employees abhore.
12.23.2006 10:49am
Public_Defender (mail):
Many people seem to think that the prosecutor should not take this case to trial to protect his reputation, but his reputation is already shot regardless of whether he dismissed everything now or took the case to trial.

From his selfish point of view, taking the case to trial is a no-lose situation. If he loses, he's no worse off. If he wins anything, he's vindicated.

Independent RESPONSIBILITY is something elected officials and public employees abhore.

Yeah, look at all those CEO's who said, "my company didn't do all that well this year, so I don't deserve my $100M bonus." Corporations, their CEO's, and their employees do their fair share of avoiding personal (or corporate) responsibility. The main purpose of "tort reform" is to help companies not have to take responsibility for their misdeeds.
12.23.2006 12:00pm
Harry Eagar (mail):
As a newspaperman, I cannot help but contrast the reaction of the lawyers to an apparently (hell, obviously) straying lawyer to the reaction of the reporters and editors to a straying reporter or editor.

How shall we say this? Lawyers hesitate to rush to judgment.

Not always an admirable habit.
12.23.2006 5:08pm
Gomez Addams (mail):
You know, a good way to deter prosecutorial misconduct would be to jail the prosecutor for the minimum (maximum?) term required for the crime he was prosecuting.

That'd put an end to this stuff.
12.23.2006 9:39pm
Public_Defender (mail):

As a newspaperman, I cannot help but contrast the reaction of the lawyers to an apparently (hell, obviously) straying lawyer to the reaction of the reporters and editors to a straying reporter or editor.

How shall we say this? Lawyers hesitate to rush to judgment.

Not always an admirable habit.

As I pointed out above, prosecutors get away with things (or even get promoted for things) that would get other lawyers disciplined, but lawyers regularly do get disciplined (lose their license permanently or for a term) for unethical behavior.

By contrast, journalists demand the privileges of professional status (legally protected private communications), but they are unwilling to pay the price that true professionals pay (regulation and the loss of the privilege for unethical behavior).
12.24.2006 12:04am
Ragerz (mail):
It is nice to see that a lot of Volokh readers like to rush to judgment on this case. Very admirable.

So, the rape charges have been dropped because the victim doesn't know what the guys used to penetrate her. Does this increase or decrease her credibility? I say increases it.

First of all, while nuance with respect to observation can be fabricated, on the whole, more nuance is an indicator of truth. That is, when you say X happened, but I don't know about small detail Y, this is a sign of truth telling. Most liars fill in every detail you ask for. Someone who is telling the truth is probably not going to have a grasp of every detail. That is simply not how the human mind works.

Second, when someone is penetrated from behind, it is not reasonable to expect them to know with certainty what they have been penetrated with. Or is the concealing of this information from a victim by her attackers some kind "I get to rape you for free" card?? It is unreasonable to expect victims to have knowledge of every detail. In this case, the victim claims to have knowledge of the important detail, that she was sexually penetrated from behind, with something, against her will. That she didn't observe WHAT was penetrating her is simply a function of the direction from which the attack occurred. If she assumed it was a penis, but it later turns out to be something else, that is not really damaging to her credibility.

Third, penetration by an object rather than a penis would explain the lack of DNA evidence.

Fourth, if this woman's accusations are true, from a moral perspective, the actions of these men are as morally repugnant as ever. That they penetrated her with an object rather than a penis may be the basis for dismissing rape charges, that does not change their moral culpability of this story is true.

Ultimately, what VC readers and everyone else should do is not pretend they are in a position to judge the evidence in this case, unless they have actually seen it and heard all the relevant testimony. It is called not rushing to judgment.
12.24.2006 9:52am
elChato (mail):
Ragerz, after first telling police she was not raped, she told police she was raped (in a story strikingly similar to the 3-on-1 rape she claimed happened 10 years ago). She claimed not only that she was penetrated but that one of the accusers ejaculated. Now, the week after the prosecution was exposed for altering a DNA report to omit exculpatory evidence, she changes her story again and says she is "not sure" if she was penetrated.

Looks like we are at least on story number 3 she's telling. So tell us again, how does this "enhance" her credibility?
12.24.2006 10:33am
Ragerz (mail):

First, please link to the relevant testimony by the witness stating that she was ejaculated on. Second, note the possibility that ejaculation occurred, but penetration with a penis did not. Note also that the rape charge was dropped because she did not actually see whether a penis penetrated her. It is possible that she was penetrated by a penis. But there just is no proof of that beyond a reasonable doubt. Hence the dropped charge. Third, what happened 10-years before this case is not exactly dispositive. Lack of a conviction is not proof of lack of a crime 10-years ago. (For example, probabilistically speaking, OJ Simpson is guilty of murder. That he was not convicted when the burden of proof beyond a reasonable doubt lies on the prosecution does not change that.)

But if you proudly want to rush to judgment without hearing all of the testimony and seeing all the evidence, that is your problem. I thought that is what we had trials for, but maybe we are better off going to the age of lynching. Hey, rumors are as good as evidence, apparently.

It is nice to see so many people make up their mind before they are fully informed. Unfortunately, this says a lot about the people making up their minds, and very little about the reality of what did or did not happen.

The bottom line is this. The only intelligent course of action is to evaluate all of the evidence and all of the testimony, keeping in mind that people who are sexually assaulted typically behave in an erratic manner after such an event. The acused will have the opportunity to confront their accuser in court.
12.24.2006 11:32am
elChato (mail):
You need to go back and read about the case before you write about it. She did not say she was ejaculated "on"- ever. If YOU have a link that supports that, please post it.

"The accuser said that her assailants did not wear condoms and that at least one ejaculated."
NYT link

Recall the DA bragging in the beginning how the DNA was going to prove his case?

You also seem to be unaware that in the past she has definitively asserted that she WAS penetrated by multiple penises (from the NYT story above):
"The woman, who said she was attacked while performing as a stripper at a lacrosse team party last March, has repeatedly asserted that she endured violent penile penetration. She said this to the first doctor who saw her, to the sexual-assault nurse, to the sexual-assault doctor, to detectives and in her own handwritten statement to the police, records show. She also consistently said she was forced onto her hands and knees and raped from behind.

Yet when questioned again on Thursday afternoon by Mr. Nifong's investigator, the woman said for the first time that she could no longer be sure what had penetrated her."

The alleged victim has changed her story- AGAIN- on a key point. Coincidentally or not, this happened just after the DA was exposed as having doctored a DNA report to exclude exculpatory evidence.

These are simple facts, which you are either unaware of or uninterested in discussing. You'd rather compare others to "lynchers" or say they've "got their minds made up" or "rushed to judgment." Thanks for your posts.
12.24.2006 2:01pm
Harry Eagar (mail):
Public Defender sez: 'By contrast, journalists demand the privileges of professional status (legally protected private communications), but they are unwilling to pay the price that true professionals pay (regulation and the loss of the privilege for unethical behavior).'

Fair point, although protecting sources is not unethical but ethical behavior for a journalist; just because a lawyer on a fishing expedition in a trumped-up civil case wants my notes, it does not suddenly become unethical for me to protect them.

But, in any case, I am not guilty. I oppose shield laws. (On several grounds; two are: I don't want government or quasi-government oversight, because I believe in a free press; and, I don't know how to define 'journalist.')

I dispute that lawyers are often sanctioned for ethical lapses. Theft, yes. Ethical lapses, almost never in any jurisdiction I've worked in.
12.24.2006 3:07pm
Ragerz (mail):

The reason one listens to all the testimony and evidence is because it can help to clear up these sorts of things. Something that may seem like a contradiction will turn out to be something else after more information is learned.

The accuser said she was penetrated by the men's penises. She may have said this because she assumed it was true. But did she see this penetration occur? No. The penetration occurred from behind. So this assumption could be incorrect. Maybe the attackers used an object, like a dildo, that feels sort of like a penis. Maybe she was so tramatized by what was happening, that she did not realize that the object she was being penetrating with, which didn't feel exactly like a penis, wasn't a penis. Being raped can be a shocking event and it can be hard to identify exactly what an object is by feel alone.

It should be remembered that the accuser is NOT saying she was not raped with a penis. The prosecutor is saying that there is not enough evidence to prove that point beyond a reasonable doubt. This is not exactly a contradiction or a changing of the story. It is a change in what the prosecutor feels can be proven beyond a reasonable doubt.

Your view of this case is no better than the views of those who engaged in lynching. Guess what, a lot of people who were lynched were in fact guilty. But we have decided as a society that the place to decide guilt or innocence is in an actual court, not by a bunch of individuals who decide they can judge the case for themselves without all the facts. To the extent that you want to hold a trial right now and rush to judgment, you are advocating for a savage sort of justice very similar to the views of justice held by those who engaged in lynching. They too thought that a good place to decide guilt or innocence was outside the courtroom.

There is a reason we have courts. And trials. And juries. It is so they can hear the case, according to the rules of evidence, and come to a carefully considered verdict. That is what should happen in this case too.
12.24.2006 6:18pm
Harry Eagar (mail):
Too late, ragerz. The prosecutor's misconduct was conducted in public, so we have seen all the evidence there.

It appears that even if the AV did have a crime committed on her, there is now no chance of obtaining a conviction, because of Nifong's screwups/bad faith/whatever it was.

This would be upsetting if there was any evidence that the AV did suffer a crime. Since her own statements have been published and are impossibly contradictory, and since the DNA evidence excludes anyone on the team, it is not obvious what a trial would be a trial of.
12.24.2006 8:37pm
Ragerz (mail):
"It appears that even if the AV did have a crime committed on her, there is now no chance of obtaining a conviction, because of Nifong's screwups/bad faith/whatever it was."

I disagree with this assessment. I think that a jury will try to be fair to the victim in making the assessment of whether there is proof beyond a reasonable doubt, once they hear all the evidence. Most people on a jury will likely be more intent on the substantive question of whether a crime occurred to the victim rather than focus on punishing the prosecutor (by doing harm to the victim) for mistakes that have no real bearing on the substantive question of guilt or innocence.

As far as your weighing of the evidence, I absolutely refuse to have that discussion. It is totally inappropriate.
12.24.2006 9:16pm
Victor Krueger (mail):
It is abundantly clear that Nifong has behaved in an inexcusably unethical and evil manner. What is not clear to me is that his behavior is in any way unusual for prosecutors, other than for sloppy incompetence.

It is also clear that the North Carolina Bar and the feds have no intention of stopping this travesty. The gangs protect their own. What is true for the Crips and Bloods is also true for the Bar.

After seeing this I will be forever ineligible to serve on a jury in any criminal case, because I am unable to believe that prosecutors and judges in Texas are any different from those in North Carolina, and that everything they say must be assumed to be a self-serving lie.
12.26.2006 2:23am
been there (mail):
(off topic)

Bob Smith:

I'm female, but the man I wanted to accuse was a supervisor of security at a college. I just figured he knew people.

For Rape I to have occurred in the case of a non-violent rape, "The victim was incapable of consent by reason of mental defect, mental incapacitation or physical helplessness." This includes being passed out but not "just drunk."
12.26.2006 4:38pm