The ghosts of the Duke University rape case continue to haunt the press and Mike Nifong, the ex-county prosecutor who charged three white lacrosse players with raping a Black exotic dancer last year.

In his aggressive attempt to jail those “hooligans hiding behind a wall of silence,” Nifong withheld key evidence from the defense. Last week, a judge began hearing arguments to decide if Nifong is in criminal violation. Thursday, Nifong issued a public apology in court for falsely accusing the men.

Could it be, though, that Nifong’s real offense is not misconduct, but rather treating three middle class white defendants as if they were poor and Black?

Prosecutors wield the substantial power of the state, often with a great deal of discretion, so the Constitution rightfully imposes on them the burden of presenting a case that will likely meet the standard of reasonable doubt.

Regardless of how one might feel about the tawdry events of last year’s party, with all its racial and misogynous overtones, the prosecutor simply did not have the facts to support an indictment for rape. But like so many before him, Nifong pressed on.

After all the charges were dismissed, the young men appeared on “60 Minutes” to talk about how their lives had been irrevocably changed by the stigma of even being charged with a crime. Nifong quickly became the target of their blame.

Reade Seligmann, one of the accused, said ”If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it.”

Watching these events unfold, it was hard not to think about the thousands of young Black and Latino men who wind up in the same predicament as these Duke students.

Nifong was charged with making false and inflammatory statements to the press that prejudiced the defendants’ right to a fair trial and with the more serious offense of withholding exculpatory evidence from the defense. While North Carolina’s rules of professional conduct clearly prohibit such behavior, ethics committees almost never sanction prosecutors.

Experts estimate that over the last fifty years there have been fewer than one hundred cases of sanctions against prosecutors and many of those were for matters related to bribery or mishandling of money. While the Duke case was a very real miscarriage of justice in that the evidence didn’t support the indictment, what distinguishes it from so many others is not that justice was eventually done. Rather, justice was done because the defendants could afford it and because at some point the system simply refused to treat these young white men like they were poor and Black.

We need not look far for cases where prosecutorial misconduct was far more egregious, but in which poor Black defendants had neither judges nor bar committees acting to guarantee a fair trial. Take for example another North Carolina case, the prosecution and conviction of Lesly Jean in 1982. He was convicted of rape and sexual assault and sentenced to two life sentences because of faulty eyewitness identification and government misconduct. After serving nine years in prison, he was finally exonerated in 2001 through the efforts of the Innocence Project. His conviction was overturned when it was revealed that police and prosecutors had failed to disclose pertinent evidence to the defense or the court—the same offense that cost Michael Nifong his law license.

We should also remember the states in which poor defendants face strict limits on the amount of funds that can be spent on their defense. In Alabama, for example, in capital murder cases the defense is limited to $1000, for which amount one cannot get even the most basic DNA test. In other states, defense lawyers are paid so little that it creates a financial incentive not to go to trial.

The media narrative of the Duke case shaped the public perception that this was a “special” injustice because of what was being done to white defendants. The very idea of white skin privilege would cease to have meaning if white and Black, rich and poor could actually expect the same treatment by our criminal justice system. One article expressed this “racial narrative” by referring to the case as “justice run off the rails by political correctness.” Not surprisingly, some of the demonstrations on the Duke campus tried to link the prosecution of the Lacrosse players with “excesses” of affirmative action. Others accused Nifong of simply trying to please the Black community of Durham because he needed their vote.

In light of the Duke case, will disciplinary committees now diligently hold DAs to their ethical duty as lawyers first and public prosecutors second? Probably not. The simplest lesson from this case is that race and class not only still matter in our criminal justice system but that they matter a lot.

Despite Supreme Court Chief Justice John Roberts’ insistence that we now live in a “colorblind” society, we should not now expect bar associations to intervene regularly on behalf of the poor when a DA makes remarks that could prejudice a jury. Or if one begins the prosecution by over charging, demanding high bails, insisting that 16-year olds are tried as adults and serve time in adult prisons. There are hundreds of cases where appellate courts have found that prosecutors should have turned over evidence to the defense but didn’t and bar associations never stepped in.

If the Duke case teaches us anything, it is that the effort to reform our criminal justice system has found few new tools. Communities have to continue to provide funding for defense lawyers for the poor. We will have to be the ones reminding prosecutors that, while ethical sanction has been a very rare occurrence, they too now must follow the lessons from the Duke rape case.

Victor Goode is professor of Law at CUNY School of Law.

Read this online at http://colorlines.com/archives/2007/07/prosecuting_the_duke_lacrosse_players.html


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