Why There Will Be No Criminal Investigation in the Duke Case

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The daily page of the Liestoppers blog says it all: Time it has taken Roy Cooper to start a criminal investigation: 124 Days, 19 Hours, 28 Minutes, 49 Seconds. The clock ticks continuously, and by the time readers see this, more time will elapse.

In fact, the clock might as well tick forever, for there will not be any criminal investigation at all, not from the State of North Carolina, and certainly not from the federal government. None.

The irony, of course, is that a year ago, the State of North Carolina was sparing no expense to prosecute rape, kidnapping, and sexual assault charges against Reade Seligmann, Collin Finnerty, and David Evans, despite the fact that everyone involved in the case, from police to prosecutors to attorneys knew beyond a doubt that the charges were bogus. The CBS show "60 Minutes" already had eviscerated the charges in a broadcast, bloggers like K.C. Johnson were shredding the credibility of Nifong and his Duke University and Durham supporters, and Nifong already had lied to judges about evidence that would be exposed at the December 15, 2006, hearing. Charges from the state bar would soon follow, and Nifong finally would be disbarred in June, 2007.

Attorneys for the players, and bloggers and journalists covering the case already have exposed a number of crimes and outright lies committed by police and prosecutors. For those few who still might have doubts about the open and unabashed lawbreaking that occurred, the civil suit that the three families have filed against Durham and Nifong is an eye-opener. In short, if ever there were a dishonest and malicious prosecution, this is it.

Yet, despite the fact that much criminal behavior already has been exposed, and the lawsuit is likely to expose even more of the same, the criminal authorities are not interested. The reason is not that authorities would have a difficult case; indeed, all that has been uncovered in official venues, from the investigation by North Carolina Attorney General Cooper and the North Carolina Bar, not to mention Judge W. Osmond Smith III’s recent criminal contempt hearing in which Nifong was sentenced to a day in jail, is enough to establish a massive criminal conspiracy.

The reason is simple: the politics of race. Seligmann, Finnerty, and Evans are white, and their accuser, Crystal Gail Mangum, is black. The NAACP and other black organizations had staked all of their credibility to the charges being true, and desperately tried to keep the case alive, even when it was exposed as a lie. Furthermore, the rape crisis organizations and feminist groups also refused to let go of the lies that propelled this case in the first place. The radical faculty members, employees, administrators and students at Duke also rebelled at seeing this "opportunity" slip through their fingers, so they insisted that Cooper either had covered up the evidence or had been kowtowing to white supremacists. In other words, even the truth could not stop business as usual, so people from these groups simply comforted themselves with the Big Lie that the players were guilty of rape, but were going to skirt justice because of their race and family incomes.

It is not hard to see how this would affect Cooper’s decision to avoid any criminal investigation. Cooper is a Democrat with aspirations of being governor, and in North Carolina, the only way for Democrats to win a state-wide election is through heavy turnout from blacks and radical/leftist whites. That members of these groups were bitterly disappointed when the case fell apart means that Cooper cannot do anything to further earn their enmity.

It is not as though Cooper is ignorant of any criminal activity. At the April 12 press conference in which he exonerated the three young men, declaring them innocent and declaring Nifong to be a "rogue prosecutor," the following exchange took place between Cooper and a journalist:

Q: What about Mike Nifong? Do you think that his actions warrant a criminal investigation?

COOPER: Well, I think it’s important that we let the process work with the North Carolina State Bar. Our investigation dealt mostly with the facts of this case and making a decision. Their investigation is dealing more with the pretrial comments and with the discovery issues on the DNA that our investigators really did not get into the details of that.

I think once the bar finishes that hearing process, then we will know more about that process when it comes.

Q: Is it a possibility?

COOPER: It’s certainly a possibility, but I don’t want to — to speculate at this point. I think all options are certainly on the table.

Thus, it clearly is not in Cooper’s interests nor in the interests of the North Carolina Democratic Party for there to be a further investigation, especially since all of the principals on the prosecution side were Democrats. Along those lines, we also hear silence from the attorneys for the three young men who clearly saw everything Nifong and the police were doing. The most visible attorneys, Wade Smith and Joe Cheshire, both are among the most influential Democrats in the state, and they are not about to damage their party to encourage more action against Nifong.

There is another body that has jurisdiction, however, and that is the federal government. As one who has been extremely critical of federal prosecutions and federal criminal law, I am extremely reluctant to call for federal action, even if Cooper and the State of North Carolina take a powder. Nonetheless, I have seen the feds throw huge amounts of resources into cases in which they had less jurisdiction and the effects of the "crimes" committed were far less harmful than what we have seen take place in Durham and North Carolina.

After all, there are a number of avenues the feds could take. Most certainly, Durham and Nifong used federal grants from the Violence Against Women Act in pursuit of this case, and the fraudulent use of federal money has landed many people in prison before. There are massive conspiracies to deprive Seligmann, Finnerty, and Evans of their Constitutional Rights, and there are the usual sets of "fraud" and "conspiracy" charges that the feds do not seem hesitant in using elsewhere.

The main reason for the reluctance of the feds to be involved, as I see it, is the Jena case. While I will not discuss this case in this article, I have read a number of dispatches and posts on the case and realize that like the Duke case, what everyone has thought was true simply was not.

(There was no "white tree" in the schoolyard, the students who hung the infamous nooses received punishment, and in the immediate aftermath of the hanging of the nooses, there were no racial incidents. The case is much more complicated than what most people who have taken sides want to believe. Furthermore, there is questionable conduct by the parents of the so-called Jena 6, who have received almost a half-million dollars in donations after their sons were charged with attempted murder in the beating of a white student at the local high school. I definitely have sympathy for both the whites and the blacks in this case, and decry the irresponsible talk coming from the extremists on both sides. Jason Whitlock of the Kansas City Star, a black columnist and a hard-hitting writer, pens perhaps the best commentary I have read in this case.)

Nonetheless, while the story is more complicated than what the activists tell us, black Democrats in Congress have taken up the cause. In a recent hearing, they demanded that the local U.S. attorney in Louisiana charge the three white students who originally hung the nooses from a tree with "hate crimes," which would place them in prison for most of their lives. (To his credit, the federal prosecutor, who is black, told the members of Congress there was no criminal statute under which he could charge the students; the members of Congress basically demanded that he make up a law.)

While there was a federal investigation of the Jena case, the absence of charges there means that if the feds were to attempt to investigate the Duke case and subsequently bring charges, the outcry among the black groups and black congressional Democrats would be very loud. Given its precarious situation from the Republican loss of Congress to its declining fortunes in Iraq, the Bush Administration simply is not going to pursue anything in the Duke case that will make it subject to even more accusations of racism. I also believe that a Hillary Clinton administration will re-visit Jena and file hate crime charges against the white students and try to bulldoze them through the courts, which most likely will be quite happy to overlook the fact that the actions of the students, though reprehensible, are not covered by legal statutes.

(The Bush Administration also still is smarting from its total failure in the wake of Hurricane Katrina and the subsequent charges that its failure has been due to racist attitudes. Actually, its failure is due to the fact that it is attempting to implement socialist "solutions" which always are doomed to fail. This is the reason for the continual post-Katrina stumbling in New Orleans, but those who are most loudly crying "racism" also support socialism.)

Therefore, I doubt seriously that there will be criminal cases of any kind in the Duke case. If there is to be legal relief, it will be in the civil arena, and those who committed crimes will be permitted to go on as though nothing ever happened. In the end, the police state triumphs — again.

October 20, 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. He also is a consultant with American Economic Services.

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