The Duke Non-Crime Hoax at One Year: What Have We Learned?

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At some time in the early morning of Wednesday, March 14, the Duke Non-Rape, Non-Kidnapping, Non-Sexual Assault Case will be a year old. Given the facts of the case, we should be speaking of it in the past tense, but thanks to the institutional dishonesty that is imbedded in the "justice system" of the State of North Carolina, three young men remain charged with crimes that never occurred — and that the authorities know did not occur.

The events of the past year have been extraordinary, to say the least. Since Durham County District Attorney Michael B. Nifong gained indictments of Reade Seligmann, Collin Finnerty, and David Evans, we have seen the case take turns that no one would have predicted last May when Nifong seemed to be invulnerable and had the apparatus of state power firmly behind him. While Nifong’s pending charges before the North Carolina State Bar are serious — and could likely result in his disbarment — the image of the poor, embattled prosecutor certainly was not what we saw in the spring of 2006 when he appeared in front of television cameras to promote the hoax.

While it is obvious that the state now has a difficult task ahead of it should prosecutors wish to take this nonsense to trial, perhaps we should look back 10 months ago when Nifong was reveling in his election victory and three young men were indicted for rape and other crimes. It is doubtful that one could have predicted where we would be right now.

In ordinary circumstances, this case would have been over almost before it started. Crystal Gail Mangum was picked up by police early on March 14 because she refused to leave a parked car. Because she was drunk and apparently had taken some other medication, authorities decided to place her in a detox unit until she could be sober again. It was at that point that she claimed she was the victim of a gang rape while doing a strip act at a party hosted by players from Duke University’s lacrosse team.

People who recount listening to the police radio that night (or who talked to police officers) say that the officers really did not believe Mangum. She was well-known to police as a local sex worker, and her medical examination did not show signs of the beating and gang rape she claimed happened. Still, medical examiners did the obligatory rape check and did DNA swabs. She claimed that other than the rape, she had not engaged in sexual activity for more than a week.

A couple days later, police burst into the house at 610 Buchanan Avenue where the three lacrosse captains lived, and where the party had been held. Police reported that the captains were cooperative in the investigation, showing them the bathroom where the alleged rape occurred, and then coming to police headquarters to answer questions and to take DNA swabs. They did all of this without advice of counsel, and the captains said that police told them the investigation would not amount to much. In other words, at that time, police still did not believe Mangum.

(I hold that they never did believe Mangum, but elected to try to frame people when Nifong stepped into the case and took it over. Even a cursory glance at the "investigation" demonstrates that police never took the charges seriously, and tended to make up things on the fly as the frame-up started to build.)

As I have pointed out in other articles, Nifong seized on this case in order to publicize his own candidacy in the upcoming Democratic primary for district attorney. (The governor had appointed him to the position the previous year.) Within a few weeks, he had given more than 70 interviews to television reporters and newspapers, and it soon became one of the top stories for the nightly news.

In two separate meetings with police, Mangum had failed to point out any of her "attackers," although she did manage to say with "100 percent certainty" that Brad Ross was at the party — even though he had unimpeachable evidence that he was elsewhere. In the third meeting in early April, Mangum picked out Seligmann and Finnerty with "100 percent certainty," although in earlier sessions, she had failed even to recognize them. (Neither person fit the original description she gave to the police, but since this was not a serious investigation, police and Nifong were all-too-happy to have faces and names in order to secure indictments.) She picked Evans with a "90 percent certainty," except that she said her attacker had a moustache, something that Evans did not have.

What is notable is that after she had picked out these supposedly dangerous rapists, Nifong did not immediately arrest these alleged miscreants. As I shall point out, there was a reason — a nefarious one at that — why Nifong chose not to make immediate arrests.

Meanwhile, Nifong secured a court order that required all 46 white lacrosse players to give police DNA samples, which they did without argument, despite the fact that the order was given by Judge Ronald Stephens, a former Durham DA and Nifong’s former boss, and certainly a Nifong ally. In seeking the DNA order, Nifong told the court that the DNA would "identify" those who were guilty and "exonerate" those who did not take part in the alleged rape.

Unfortunately for Nifong, the state crime lab soon came back with DNA results that matched no lacrosse player. Undaunted, Nifong then requested the samples be examined at a private lab run by Dr. Brian Meehan that did the hyper-sensitive YSTD tests. That decision ultimately would turn Nifong’s case against him and perhaps destroy his career.

Again, the tests found no matches with lacrosse players, except for a quasi-match on a false fingernail that allegedly belonged to Mangum that was found in the bathroom trash can in the house. (The tests said that they could "not exclude" Evans, but also could not exclude 14 other players, none of them Finnerty or Seligmann. For criminal investigation purposes, this was useless, but it literally was all that Nifong had to justify his indictment of Evans.)

Nifong and two other Durham police officers met with Meehan at his Burlington, North Carolina, office on April 10, and Meehan had bad news. Not only were there no DNA matches that would demonstrate any sexual or physical contact between any lacrosse player and Crystal, but despite her claims she had not engaged in sexual activity for a week, there was evidence of her having recent sex with at least seven men, none of them lacrosse players.

This clearly presented problems for Nifong. He had stirred up the community — and especially the blacks in Durham — for two weeks, giving interview after interview, giving a demonstration on television of how the young men "choked" Mangum before "raping" her, and how their actions definitely were racially motivated. Local protesters put together a film of their demonstration, and they repeated Nifong’s claims of a 30-minute episode of beating, raping, and sodomizing.

It was clear that the kind of assault Nifong claimed the young men committed would have left a trail of DNA, and it also was clear that the YSTD testing would surely have detected the aftermath of such an attack. After all, Mangum claimed the assailants were naked, did not wear condoms, and had ejaculated, and also forced her to perform oral sex. (She claimed to have spit the semen onto the floor, but a careful DNA check by police did not turn up any trace of semen from the accused or Mangum’s saliva.)

An honest man would have given it up right there, as Nifong, Meehan, and the police officers present surely recognized that Mangum’s account, given just six days before, could not be true. They had her claims and her identifications, but the science simply did not match any of her stories. Instead, those present agreed to withhold much of the evidence, and not tell the defense about the seven other men. In that moment, those who were sworn to protect and uphold the law committed a felony.

(In a letter to the North Carolina State Bar, Nifong claimed that he did not attend any April 10 meeting, something that conflicts with Meehan’s sworn court testimony of December 15, 2006, and the notes of two Durham police officers. Ironically, this claim was made in a letter responding to a bar claim that Nifong had lied to them in an earlier response after the bar had publicly accused him of lying and withholding evidence. Thus, it seems clear that Nifong lied in response to an earlier claim that he lied, which was a response to an earlier claim that he lied. I am not making this up.)

The next day, Nifong spoke at a community rally at North Carolina Central University, where Mangum was a student (she took on-line classes and did not go to the campus). In response to questions as to why he had made no arrests, he claimed that the investigation was ongoing, despite the fact he already knew who he would arrest, something he failed to tell the audience. Having received bad news the previous day regarding DNA testing, Nifong then told the crowd that in this case, DNA really did not matter at all, and that he would convict the "rapists" through "the old-fashioned way," by the single testimony of a woman who already had spun nearly a dozen mutually-exclusive accounts of the alleged incident.

Nifong did not arrest anyone until April 17, right after securing grand jury indictments, nearly two weeks after Mangum made her "identifications" to Durham police (in a photo line-up that violated state and city protocol on how to conduct such activities). The obvious question is this: Why did he wait so long, given that he had been claiming there were dangerous “rapists” on the loose?

Had Nifong made an arrest before the young men were indicted, they could have requested a preliminary hearing in which Nifong would have been forced to present the evidence — or, should we say non-evidence — before a judge in a court of law. Defense attorneys could have cross-examined Mangum and the police, and it is clear that this could have been a disaster for the prosecution. Thus, Nifong held his cards so he could gain indictments, mollify the black community, as well as the white leftists who populate Durham, and win the primary — which he did.

After he indicted David Evans in early May, Nifong then refused to speak to the press and he and the NAACP then demanded that the defense be gagged, something granted by another Nifong ally, Judge Kenneth Titus. Thus, by early summer, here was the situation:

  • Three young men were indicted for rape, kidnapping, and sexual assault even though there literally was no physical evidence tying them to what Nifong had described as a "brutal rape;"
  • All of the mainstream press, from the local newspapers (which threw gasoline onto the fire early by repeating Nifong’s claims that the lacrosse players had put up a "blue wall of silence") to the Washington Post, New York Times, Time, and Newsweek, along with all of the major news networks were clearly in Nifong’s pocket;
  • A small number of writers and bloggers, including Michael Gaynor, K.C. Johnson, Wendy McElroy, Thomas Sowell, La Shawn Barber, the "Johnsville News," and I were the only ones presenting another side to the story;
  • The defense was making claims to the judges that Nifong was illegally withholding evidence, but the judges sided with Nifong — at least until Judge W. Osmond Smith III was assigned to the case in late summer. Even then, Nifong claimed he was not withholding anything;
  • As a nurse who has many years of experience in examining rape victims and analyzing rape cases told me, the Durham community was so worked up that any jury from Durham County almost surely would not be interested in looking seriously at exculpatory evidence, and I am sure that was what Nifong hoped would happen.

Had it not been for the bloggers and the extraordinary efforts of the defense — which has come at a price tag of many millions of dollars for the three families — the danger that these young men would be facing would be much greater than it is now. Nifong no longer is on the case, and the special prosecutors are faced with their only prosecution witness being a prostitute who has changed her story on many occasions — the latest being on December 21 — which led Nifong to drop the rape charges. Thus, most experts and observers (and North Carolina attorneys who have contacted me) believe that the special prosecutors have no alternative but to cut and run, as bringing the case to trial very well would make them liable to charges of suborning perjury.

What have we learned?

This article has dealt solely with the legal aspects of the case, along with the illegal and dishonest behavior by Nifong and his police allies. There is much more to say about just the legal portion (including out-and-out intimidation of witnesses and attempts to force witnesses to commit perjury), but space does not permit it here.

Furthermore, I have not written this time on the response of many on the Duke faculty, although I have written many articles on this sub-topic, and K.C. Johnson has hammered the faculty through his authoritative blog. Unfortunately, many people have come to believe that the antics of the so-called "Group of 88," the faculty members who signed the infamous "listening" advertisement in the Duke Chronicle on April 6, are the story.

For example, both the Weekly Standard and American Conservative recently took the Duke faculty to task, and I recommend both articles. Likewise, the coverage of the National Review has been dominated by the response of Duke University leftists. While I agree with the perspectives taken by the writers of these pieces, I also realize that this is a safe "way out" for many conservatives. By bashing leftists, they fail to go to the heart of this case, and that is that it was made possible because of massive lies and misconduct on behalf of the prosecution and the police.

In America’s so-called culture wars, leftists like to bash Bible-thumping right-wingers, and the right bashes the atheistic culture of the left. Once upon a time, the left at least gave lip service to things like due process and police misconduct, at least until they found that the Clinton Administration found ways to deny due process to people that the left did not like.

Conservatives, on the other hand, have believed themselves allied with police and prosecutors and when conservatives have been in power, police and prosecutors have been granted much wider authority than surely the Constitution and the American tradition have permitted. Thus, at best, conservatives simply are declaring that Nifong is a "bad apple," but that most prosecutors are honest, hard-working, decent people who simply want to get the criminals off the street.

Furthermore, they see prosecutors as having few powers and as people who must do battle against unscrupulous defense attorneys who hold all of the cards. It is conservatives who constantly are insisting that the application of due process guaranteed by the U.S. Constitution will turn that document into a "suicide pact" if prosecutors are not given carte blanche.

Thus, the "bad apple" theory of Michael B. Nifong works well with many conservatives. That way, they can bash the Duke University leftists and still defend police and prosecutors — and look (at least in their own eyes) like "civil libertarians" as well. Unfortunately, Michael Nifong is not a "bad apple" who happens to be spoiling a barrel of "good apples"; most of the barrel is rotten, and has been rotten for a long time. This especially is true in the federal system — and that last line comes from one of the few honest prosecutors that I know who has discussed this case at length with me.

Granted, there are quirks in North Carolina law that give extraordinary powers to prosecutors, and states such as Maryland and even California have more safeguards built into the system. However, as I have documented over the past several years, it ultimately does not matter what legal safeguards are in place if a prosecutor is hell-bent on engaging in a malicious prosecution.

Yes, I believe the lacrosse case once again has exposed the dangerous nonsense that is expounded by campus leftists, and it also has exposed the dishonest agendas of left-wing feminists across the country. Yet, for all the badness of these groups, their actions really did not have the effect upon three families of young men innocent of the crimes for which they were charged that Nifong’s unholy crusade had upon them.

That is because Nifong represents the most coercive and violent part of the state: the "justice" system that has the legal power to incarcerate and kill. When one views the extraordinary effort that it has taken — and the vast amount of resources that have been consumed in the process — just to shake a case that always has been transparently false, one is able to gain a small appreciation (if that is the right word) for the violent power of the state.

What have we learned? We have learned — once again, and to our sorrow — that the individuals who represent the state often have the proclivity to do what is wrong — and they have the powers to carry out their evil deeds. It seems that the only antidote has been the use of vast quantities of what Louis Brandeis called the "best disinfectant": sunlight. After a year, the sunlight is shining and perhaps — perhaps — the authorities of the State of North Carolina who have been so badly exposed will end this illegal, unwarranted, dishonest, and malicious prosecution.

March 12, 2007

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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