An Open Letter to the Innocence Project

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In writing this open letter to you, let me first say that I admire what you are doing. The Innocence Project is one of the good things to come from what we call modern political liberalism, and I am glad you are doing this kind of work. Furthermore, your efforts to free wrongfully-convicted people — especially those people who simply cannot afford the legal talent that they need — are heroic and despite the attacks by law-and-order conservatives like Ann Coulter, you are performing something that is vital to a "free" society.

Yet, while I deeply appreciate all that you are doing, I also must tell you that you are ignoring one of the biggest threats to your work that ever has existed, and helping to hasten this threat are organizations that often have stood shoulder-to-shoulder with you. To put it briefly, the infamous Duke non-rape case, being pushed by the lawless prosecutor Michael Nifong, threatens to undo all of the good that you have done since your founding almost 15 years ago.

I will get right to the point: The basis for your being able to exonerate wrongfully-convicted people has been DNA testing, and many people have been able to leave prisons as free men because DNA tests have demonstrated that they did not commit the crimes for which they were convicted. Yet, in Durham, North Carolina, we have the kind of DNA evidence that you would love to have, the kind of evidence that is the stuff of jubilant press releases from your organization.

Unfortunately, according to Nifong, the DNA means nothing because it does not permit him to create the scenario that he is insisting MUST be the case. Furthermore, the NAACP, which has backed your efforts, also is demanding that all exculpatory DNA results be ignored so a jury can wrongfully convict Reade Seligmann, Collin Finnerty, and David Evans.

If you are willing to listen to me, I will tell you how this scenario has come about, and why Nifong’s actions are a major threat to the important work you are doing. Should you ignore me, or simply blow off what I am telling you, I can guarantee you that your indifference surely will mean more wrongful convictions, and it will make your efforts to free innocent people much more difficult and expensive than currently is the case. In short, you cannot afford to ignore what I have to tell you.

Let me start from the beginning. Early on the morning of March 14, 2006, a black stripper told Durham, North Carolina, police that while she was "performing" at a party hosted by members of the Duke University Lacrosse team that a number of young men grabbed her, dragged her to a bathroom, and raped and sodomized her for about 30 minutes.

Immediately after she told police and hospital personnel that she had been raped, her body was carefully examined and swabbed for traces of DNA that would have been left there by the accused rapists. Investigators found semen and must have thought they hit paydirt, and all samples quickly were collected and ready for examination. Moreover, the medical reports that were filed after the examination do not point to rape, and any trauma to her body is easily explained by her other recent sexual encounters.

Because the alleged rape occurred at a lacrosse team party, Nifong was able to get a friendly judge to immediately order that all 46 white members of the team give DNA samples to the police. In demanding the samples, Nifong told the court that the DNA tests would identify who was guilty of rape, and who could be excluded. Nifong told the media, “How does DNA exonerate you? It’s either a match or there’s not a match.”

As we know, the lacrosse players — all strongly declaring their innocence — willingly gave the samples, even after their attorneys advised them that even a slight touch on the woman’s body would incriminate them, and that they could fight the overly-broad order. The DNA samples were sent to the state lab — and came back with no matches with the lacrosse players.

Nifong, as you might have heard, immediately went from DNA-tells-us-what-we-need-to-know to "DNA? We don’t need no stinkin’ DNA!" The press weighed in, and then we heard the fiction that all the players needed were some condoms, something you know would not necessarily hide anything, since condoms leave residue and there still would be traces of DNA from other sources — unless the alleged rapists were wearing space suits, which seems to be what Nifong is claiming these days.

Unfortunately, even your co-founder, Peter J. Neufeld, has made some comments on this case that, while technically true, are very misleading. Yes, as Neufeld said, “There have been thousands and thousands of men who have been convicted in the United States of the crime of rape without DNA and without semen," but the reason for that has been that most women who claim they have been raped wait for several days before speaking to the authorities, and any potential DNA sources by then are scientifically useless.

In the case of the Duke accuser, police were able to treat her body as a crime scene, and they were able to obtain numerous DNA matches — of other men. Furthermore, you surely are aware that the director of the private lab that examined the DNA matches colluded with Nifong to withhold DNA evidence favorable to the defendants. Declares the Raleigh News & Observer in a December 15, 2006, story:

The head of a private DNA laboratory said under oath today that he and District Attorney Mike Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape.

Brian Meehan, director of DNA Security of Burlington, said his lab found DNA from unidentified men in the underwear, pubic hair and rectum of the woman who said she was gang-raped at a lacrosse party in March. Nurses at Duke Hospital collected the samples a few hours after the alleged assault. Meehan said the DNA did not come from Reade Seligmann, David Evans, or Collin Finnerty, who have been charged with rape and sexual assault in the case.

You need to let that sink in. The prosecutor and the head of the lab examining the DNA agreed to withhold evidence. You have seen that before, have you not? How many times has the Innocence Project been involved in cases in which it has been discovered — after the conviction — that the prosecution was holding back exculpatory evidence?

It gets worse. Despite these revelations, the case plunges forward, and many people in the black community, including the NAACP and the black ministers, have openly said that they do not want DNA to be considered here, and that the only resolution that they will accept is a full set of rape convictions.

Let us think what that means. Many of your cases have involved men convicted of rape by juries that were convinced by eyewitness testimony, yet the absence of DNA — when other DNA was present — led to these convictions being overturned. Many of those who you have managed to have exonerated are black males, and the NAACP and other black-oriented organizations stood firmly behind you.

Remember Darryl Hunt? He was convicted in a North Carolina court for the rape and murder of Debra Sykes, but you managed to get him out after he served nearly 20 years because Hunt’s DNA was not found in and on the body of Ms. Sykes. Hunt even received a pardon from North Carolina’s governor this year.

Yet, there is substantially no difference in the Hunt and the Duke cases. The Duke accuser clearly had sexual relations with a number of other men. Furthermore, she claimed that the Duke players did not wear condoms, and that one of them ejaculated in her mouth.

Thus, we are left with the prosecution claiming both that the woman’s account of the rape is true — but simultaneously is not true. In a court of law, your lawyers would jump all over that one, but yet in the Duke case, this one lives on.

Here is the problem. Yes, over time even if there were a conviction, those convictions would be overturned by the appellate courts — or at least one hopes that the higher courts would overturn them. Because this case is so politically charged (which is why it even has any life at all), one cannot be sure that the judges on the appeals and supreme courts would be willing to be seen as "protecting" wealthy white males against the claims of a poor, black female.

But even a conviction that was overturned still would mean that innocent men would be sent to prison, if only for a few years, but prison nonetheless. Furthermore, our system is one that runs on precedent. If Michael Nifong can convince a Durham jury — one that most likely would not need any evidence to convict these men — that Seligmann, Finnerty, and Evans are guilty, then this conviction will embolden other prosecutors to do the same thing.

You and I both know that many, if not most, prosecutors in this country cut corners, hide evidence, and often lie in court. For the most part, prosecutors today do not care if the person on trial actually committed a crime. They just want to win. You know that mentality, and you have come to hate it.

If Nifong is able to continue pushing this case to trial, and if he were to win — heaven forbid — then your work suddenly would be made much harder. Prosecutors would fight you even more, citing the Duke precedence, and you would be forced to expend more resources, which also would mean you could exonerate fewer people.

So far, you have been silent, save Neufeld’s misleading remarks. Yet, if you remain silent, you are doing two things. First, you are guaranteeing future defeats for your cause when there should be victory, and second, you are withholding a moral and authoritative voice that needs to be crying out here.

I would remind you that justice is not something that applies only to those people who are currently politically favored. There is nothing just about prosecuting three young men for a crime they did not commit, not matter what their race or social status, just as there is nothing just in prosecuting young black men who are innocent of the crimes of which they are accused.

Over the years, yours has been a voice in the wilderness. The Ann Coulters of the world have decried your efforts to right wrongs, and their words condemn them. However, if you remain silent now, you risk undoing much of the good — and goodwill — that you have created. Thus, I would ask you — implore you — to rethink your silence, for if you remain quiet in the face of this injustice, you are doing nothing but empowering dishonest prosecutors, and your failure to do right in this situation will come back and haunt you many times.

The NAACP and other "civil rights" organizations can backtrack on their own records regarding wrongful charges and convictions, and demand guilty verdicts where there is no evidence. Yet, just because they discredit themselves does not mean that the Innocence Project must do the same. Your organization was begun out of the best of motives and performs most heroic deeds. Please do not let the ultimate legacy of the Innocence Project be one in which you were silent because it was politically feasible to do so.

December 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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