Criminal Prosecution: How Michael Nifong Intends To Frame the Duke Defendants

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I must admit to being something of a junkie on the Duke non-rape case, although I am not playing the role of pure spectator. Yes, I read the Johnsville News each day (and even have been featured on it a couple of times), and read coverage from the newspapers and other blogs.

Yet, in my reading of the massive coverage of this case, I have not seen anyone explain how prosecutor Michael Nifong intends to win a conviction — something he seems determined (and confident) he will do. In fact, Nifong seems to be so confident that he has made inflammatory statements in court — without facing admonishment from the judge. Some entities, like the Durham Herald-Sun, have editorialized that Nifong must have something else besides what has been revealed so far, since the present case seems extremely weak. A writer from Sports Illustrated declared that since the two dancers left the infamous lacrosse party unhappy on that fateful March evening, that this constitutes "proof" that perhaps Crystal Gail Mangum was raped. Ruth Sheehan, a columnist for the Raleigh News and Observer wrote last March that the team obviously was covering up a rape, but since then has backed off her accusations.

(It is safe to say that the N&O’s coverage of this whole affair, especially at the beginning, when it treated every word from Nifong as The Unvarnished Truth, has been pathetic. Only after the bloggers, along with Dan Abrams of MSNBC, began to shoot holes in the story did the N&O actually acknowledge that there might — just might — be another side to this whole thing.)

Up to this point, it would seem that the attorneys have done a good job both of defending their own clients and demonstrating that a rape never occurred in the first place or, to be more specific, no one raped Mangum at the party. Many of us have seen the strong exculpatory evidence on behalf of Reade Seligmann and are aware that Nifong almost certainly sought to indict him while knowing he was innocent. However, no one is pointing out the obvious: despite the damage done to his case, Nifong plows ahead with confidence. The question is a simple: Why?

On the surface, it would seem that Nifong has a difficult task, as he has two hurdles to overcome. The first is the "rape" itself; the evidence demonstrates conclusively that Mangum was not raped that night. First, despite Nifong’s earlier dishonest statements, Mangum had engaged in sexual relations with a number of men, and the DNA tells that story. Furthermore, she allegedly "entertained" another couple by using a sex toy called a vibrator, something that would easily explain the redness that an examining nurse found when she looked at Mangum at Duke University Hospital. Thus, it would seem that the attorneys could demonstrate reasonable doubt as to whether the rape occurred in the first place.

The second hurdle deals with the three defendants, Seligmann, Colin Finnerty, and David Evans, each of whom have strong alibis. The method that Nifong used to "identify" the three "suspects" was something out of George Orwell, as he used a lineup technique that violates the guidelines that are considered the North Carolina standard. In other words, a judge easily could throw out the original "lottery" identifications (described by one lawyer as "a multiple choice test in which there are no wrong answers"), and it would be very difficult to repeat the process in a way that could be legally acceptable.

Given this situation, the pundits are saying that it is doubtful Nifong could win in court, yet he is pressing on. What gives?

I believe that Nifong has no intention of arguing the evidence, at least the evidence that most of us have seen. Instead, he will use the magic of the law to make the exculpatory evidence literally disappear — all with the help of a judge who also faces re-election in Durham County this year. Here is how it will work:

He proposes "rape shield" laws to dismiss any exculpatory evidence that might explain why Mangum had vaginal "redness" or that she had sex with multiple partners shortly before that particular night, and the judge accedes to his demands.

This is very important, because as things stand right now, it is obvious that no one raped Mangum. Ordinarily, one would hope that a prosecutor were ethical enough to want the truth to come out, but Nifong is not exactly a paragon of an ethical prosecutor.

Keep in mind that rape shield laws have been used in the past in order to eliminate exculpatory evidence, so prosecutors have had no difficulty in pushing questionable charges. As Durham Police Chief Steve Chalmers has said in an interview, his goal is to obtain a conviction. (Notice that Chalmers has not said that his department is interested in finding out the truth, only obtaining a conviction.)

Rape shield laws also can be used in a very technical way. For example, last year, six black football players from the University of Tennessee-Chattanooga were charged with gang-raping a white female freshman, but at a hearing, the judge threw out the charges when it became painfully obvious that the female had initiated the sexual encounters. However, had prosecutors been as dishonest as Nifong, they almost surely could have engaged an alternative strategy in which only the sixth player was charged. To buttress their case, they could have tried to invoke rape shield laws in order to allege that the woman’s sexual intercourse with the previous five men was irrelevant to the case, and that only the sixth man was the "rapist." Had a judge allowed for such a strategy, the sixth player would have faced a very difficult challenge, since he would not have been permitted to point out that she had engaged voluntarily in sex with five other men just before him.

Lest anyone be surprised that Nifong will follow this path, keep in mind that if a jury questions whether or not a rape occurred, his case is dead in the water. Therefore, he has no choice but to pursue this path if he hopes to win. Now, should he attempt to invoke rape shield laws in order to bamboozle a jury, one might give him points on audacity — or even dishonesty — but he will forfeit whatever integrity the man might have had. Any prosecutor who attempts to foist what he knows is a lie is someone who deserves whatever consequences befall him.

However, as noted earlier, there is the second problem, and that is attempting to convince a jury that Seligmann, Finnerty and Evans are guilty of rape. Seligmann’s alibi is best known, and consists of solid evidence that demonstrates he was not even in the building when Nifong claims the "rape" was committed. Thus:

Nifong uses dishonest methods to undercut the strong alibis given by the accused.

In ordinary circumstances, a prosecutor who had a smidgen of honor would realize that Seligmann was not guilty and would drop charges, but Nifong is not a man of honor. Thus, his war on Seligmann’s evidence began with his shameful arrest of Moez Mostafa on what clearly are trumped-up charges. (Mostafa has given a sworn affidavit that he picked up Seligmann long before he was supposed to have "raped" Mangum in the bathroom of the house where the party occurred.)

Under North Carolina law, one can impeach the testimony of "criminals," which is why Nifong is so desperate to find a way to destroy Mostafa’s credibility. However, there is a photograph at a Wachovia Bank 24-hour teller that places Seligmann far away from the scene at a critical time:

This, no doubt, will present a greater challenge to Nifong, but certainly he is up to it. I don’t know how he will try to have the picture thrown out — or perhaps get one of his "experts" to insist that the picture is not of Seligmann, despite the fact that Seligmann’s ATM card was used — but one can know that Nifong will do just that. Should it be made clear that Mangum "identified" an "attacker" who was not at the party when the non-rape was allegedly committed, it would destroy his case.

Nifong’s second tactic is to attempt to force the other lacrosse players to testify for the prosecution. One might remember that a few months ago, Nifong was threatening to indict some of the players for "covering up" for the alleged rapists. Later, he declared there would be no more indictments, but that has not stopped him from trying to enlist the other players, all of whom have said emphatically that they saw no rape or anything that resembled what Nifong claims occurred that night.

If the government’s players were honest, decent people, this case would be non-existent. Instead, we have a judge who permits this travesty to continue, and we have a press that still holds Nifong in deference. Now, I have no doubt that at some time in the future, should Nifong win his cherished convictions, the appeals courts will overturn them. However, even if that is the case, innocent people will be imprisoned and the State of North Carolina once again will be known as a place where guilt and innocence are irrelevant, and that the only thing that matters is the prosecution.

I do hope that Judge Kenneth C. Titus does what is right and dismisses the charges, but the early indications are that he plans to let this fiasco continue. We shall see if he earns the title "your honor"; so far, no government employee in this sorry affair has shown even a smidgen of honor and decency.

July 22, 2006

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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