'Nifonging' the Standards of Justice

by William L. Anderson
by William L. Anderson

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For the past four months, I have played a very small role in the dissemination of information about the infamous Duke non-rape case, and I am happy to have been part of what I see as a blogging revolution regarding how people are informed about controversial legal cases. But while the other bloggers and I have been part of an assault upon the way "news" traditionally has been distributed, there has been another assault upon standards of justice that have been the bedrock for our legal system for hundreds of years.

The judicial proceedings that have happened in Durham, North Carolina, since the first accusations that three Duke University lacrosse players raped a stripper/prostitute at a wild party last March have been widely criticized in these pages and elsewhere. However, the problem lies not just with the massive legal misconduct on behalf of District Attorney Michael Nifong and the Durham police; Nifong and his supporters are hell-bent upon destroying the legal standard of "guilty beyond a reasonable doubt," and if they succeed, the last support of the system of laws upon which this country has rested will have fallen. Yes, the Duke case is that important.

Two months ago, I laid out some legal reasons why we need to regard this prosecution as more than just a media sideshow from the larger issues of war and peace, and the like. I stand by those comments, although as I have read recent accounts, I realize that Nifong and his supporters increasingly are trying to force the burden of proof upon the defense to demonstrate (1) that these young men did not rape the accuser, and (2) that the individuals she did accuse could not have committed this alleged crime, even had it occurred. In short, the prosecution is trying to win its case upon the dubious prospect of attempting to prove a negative, something that absolutely has been forbidden in the historical annals of American and English law.

I begin with the idea of "proving a negative." For example, I cannot prove that I did not assassinate President John F. Kennedy. Yes, I can argue that when the crime occurred, I was in the fifth grade class of Mrs. Isles at Boothwyn Elementary School, which was more than 1,000 miles from the scene and that witnesses can vouch for me, but someone always can claim that I lied.

If you think my reasoning is something that people would not accept, read the following about Victoria Peterson, who is the co-chair of the organization that was begun to rally community support behind Nifong:

The Duke Chronicle confirms the story first reported in the N&O: perennial fringe candidate Victoria Peterson is co-chair and founding member of Mike Nifong’s citizens’ committee. She met with Nifong before creating the organization; the district attorney told reporters, "I was very pleased. It made me feel good."

…Two of Peterson’s actions in this case raise serious concerns about Nifong’s accepting her as co-chair of his citizens’ committee. On April 11, the day after defense attorneys revealed that the DNA tests that Nifong had promised would "immediately rule out any innocent persons" matched none of the lacrosse players, Peterson spoke out at a forum held on the NCCU campus. She offered a novel rationalization for the DNA results: Duke University hospital had "tampered with" the sample.

Of course, no one has offered evidence of tampering, but this "explanation" simply does away with the idea that the negative DNA results demonstrated that the accuser was lying when she claimed the men raped her and did not use condoms. Of course there was DNA! Those hospital people at Duke simply hid the evidence! And guess what, there were many people in the potential jury pool at the forum where she made the accusations who applauded her remarks.

Lest I be accused of picking upon Nifong’s supporters and not Nifong himself, we now turn toward the embattled DA, who has made a number of "proving a negative" allegations of his own:

• When the original DNA tests came back negative, despite statements from the accuser that her alleged assailants did not wear condoms, Nifong declared that "perhaps they wore condoms," and feminists at Duke University and elsewhere repeated his comments. In other words, if the evidence they expected to appear was nonexistent, one makes up a new story out of whole cloth and then declares: "Disprove this!"
• After first declaring that DNA tests would determine who was "guilty" and who was "innocent," Nifong then declared that he would prosecute the case "the old-fashioned way" via eyewitness testimony that was the standard before DNA testing became well-developed and the norm in such cases. He has since made statements in which he has said to the effect that DNA tests are not vital to rape investigations. (However, I suspect that had there been a DNA match, he would not have been so quick to dismiss the importance such testing and evidence);
• After having declared all of the white Duke lacrosse players guilty either of rape or of covering up a rape, which led the players to hire attorneys, he then told the press that people who were innocent of a crime "do not need lawyers";
• In the aftermath of the accusations of rape and cover-up, he then declared to the press that the players were "not cooperative" because no one had confessed to committing rape or would identify the "rapists" to Durham police. Thus, their failure to incriminate themselves became "proof" that they were guilty.

Nifong and Peterson are not alone in pushing the various "double-negative" theories of guilt, as the prosecutor’s supporters in the mainstream press also have tried to use the same methodology. Take the recent New York Times piece that Stuart Taylor and others so effectively dismantled recently; the centerpiece of the article is a report recently compiled by the chief Durham police investigator in the case, Sgt. Mark Gottlieb:

Crucial to that portrait of the case are Sergeant Gottlieb’s 33 pages of typed notes and 3 pages of handwritten notes, which have not previously been revealed. His file was delivered to the defense on July 17, making it the last of three batches of investigators’ notes, medical reports, statements and other evidence shared with the defense under North Carolina’s pretrial discovery rules.

There is a problem, as Taylor and others have pointed out, however, in that Gottlieb compiled this single-spaced report from only three pages of handwritten notes and memory, but did not write it until long after the defense had pointed out various discrepancies between the prosecutor’s public statements and the written records. For example, the Times reports the following from Gottlieb’s report:

"I asked her if the exam was consistent with blunt force trauma, and she replied, ‘Yes,’ " Sergeant Gottlieb wrote in the notes of his March 21 interview with the nurse. "She stated the victim had edema and tenderness to palpitation both anally and especially vaginally. She stated it was so painful for the victim to have the speculum inserted vaginally that it took an extended period of time to insert same to conduct an examination. I asked her if the blunt force trauma was consistent with the sexual assault that was alleged by the victim. She stated the trauma was consistent with the victim’s allegation."

The predicament here is that in the nurse’s written report, she said something very different. Writes Taylor:

The 23 pages of hospital reports … which offer little or no evidence of rape, are a crippling weakness in Nifong's case…

Enter Sgt. Gottlieb again. The Times treats as established fact his memo's less-than-credible claim that the sexual-assault nurse told him on March 21 that the accuser had been subjected to "blunt force trauma" consistent with a sexual assault. The piece also glosses over the contradiction between her supposed statement to Gottlieb and her own report. Under "Describe all signs of physical trauma," she listed only nonbleeding scratches on the accuser's right knee and heel.

Not surprisingly, the New York Times tries to bolster Gottlieb, which is consistent with the newspaper’s theme about this case. Taylor declares:

This fits the Times's long-standing treatment of the case as a fable of evil, rich white men running amok and abusing poor black women. Sports columnist Selena Roberts helped set the tone in a March 31 commentary seething with hatred for "a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings." All but presuming guilt, Roberts parroted false prosecution claims that all team members had observed a "code of silence." (A correction ran six days later). She likened them to "drug dealers and gang members engaged in an anti-snitch campaign."

What Taylor does not mention – and is the theme of my analysis – is that the Times is trying to "prove" that Reade Seligmann, Colin Finnerty, and David Evans committed rape because they cannot prove that they did not do what Nifong claims they did. And how does that "proof" work? It is the employment of a version of the theory that I murdered JFK. The defense must prove that people at Duke University hospital and the other labs did not tamper with the DNA evidence. The defense must prove that DNA in a case like this would matter. The defense must prove that the young men did not slip the accuser a "date rape" drug despite the fact that toxicology tests for the drug came back negative. Since people "might have tampered" with the samples, the negative tests "prove nothing." (The labs tested hair samples from the accuser.)

Again, lest the reader think I am exaggerating, read the following account from the Times:

Toxicological screening is not standard, unless specially requested, in a rape exam in North Carolina. No such request was made that night. Defense lawyers said it would have shown drugs or alcohol. The Durham police have speculated that the test might have found a date-rape drug, records show; they have also theorized that the trauma of rape itself might have been responsible for her condition.

Keep in mind that this paragraph was written after Nifong had released test results in open court hearings. In other words, even though the Times had evidence that the tests were negative, the paper continued to stick with the original party line, choosing to ignore anything that might contradict with its original theme.

Nor does the Times stop with the toxicology results. The "prove a negative" theme pops up again in this story:

On April 10, prosecutors gave the negative DNA results to the defense. There were no matches. The lawyers announced the findings at a news conference on the courthouse steps and called on the district attorney to abandon the case.

The next day, Mr. Nifong spoke at a forum on the case at North Carolina Central, where the accuser attended college.

"DNA results can often be helpful, but, you know, I’ve been doing this for a long time, and for most of the years I’ve been doing this, we didn’t have DNA," he said. "We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

It was clearly a setback, though — and a turning point in the public view of the case. The woman had initially told doctors and nurses that her attackers had not used condoms, suggesting that there would be a lot of DNA evidence to test. Mr. Nifong later suggested that she might not have noticed the use of condoms, or that the rape exam might have missed some semen. The woman gave differing versions of whether her attackers had ejaculated inside her: she told the sexual-assault nurse she did not know, but she told Officer Himan that she thought one of them had.

Outside experts say it is possible for a rapist to leave no DNA evidence. But they say juries often expect to see such evidence. (Emphasis mine)

Here we see Nifong’s own use of the double-negative standard of "proof," claiming that perhaps the lab "missed" the evidence, not to mention the "condoms" claim. (Subsequent tests demonstrated otherwise, but Nifong is sticking by his story, and so is the Times.) But the last sentence from the Times is very important, because it highlights the "heads-I-win-tails-you-lose" approach that the authorities and their supporters have been using.

Keep in mind that the last sentence used from the Times’ story is pejorative. In other words, what the paper is saying is that given the circumstances of this particular case, there easily could be no DNA evidence, yet those ignorant jurors who watch too much "CSI" are not clever enough to figure out that they don’t need to see DNA.

Yet, the very circumstances under which this alleged set of crimes took place are the type where incriminating DNA would be all over the place. First, the prosecution alleged that the men did not use condoms (Nifong’s later claims notwithstanding), which alone would have guaranteed that something would have shown up in the various swabs of the woman’s body, as well as the saliva and blood samples of the accused lacrosse players.

Second, the police claim that the party was a drunk fest, and it is hard to imagine a bunch of besotted, arrogant athletes suddenly remembering what they saw on CSI and managing not only to eliminate all sources of relevant DNA from themselves, the room, and the woman. Third, I cannot imagine investigators seeking DNA in a case this explosive being so sloppy that they miss huge amounts of evidence.

Nor is the New York Times the only entity that is attempting to slip in the double-negative, "disprove this" approach to the case. In its account of the toxicology tests, the Durham Herald-Sun declares:

Forensic consultant Shannon Miller, also a physician and associate professor of psychiatry at Wright State University in Ohio, said conducting date-rape drug testing is standard procedure.

Negative results, he said, don't necessarily mean no substances were used. That's because some drugs can wash out of the body quickly, he said, also citing the importance of the timing of the test.

But Miller said the bottom line is that the defense can reach back and cover a fair chunk of time and say, "Look, there were no drugs there."

In one sense, the newspaper is correct. Scientific tests determine probabilities, not absolutes. There is a probability – however infinitesimal (no one made public the actual numbers that testers discovered) – but as evidence in a case in which the prosecutor publicly alleged that the "rapists" administered a "date rape" drug to the woman, it pretty much damns the prosecutor’s statements. Again, however, we see a Nifong supporter (the Herald-Sun’s editor Robert Ashley publicly came out in favor of Nifong and his actions) trying to cast doubt and enforce the "double-negative" standard of justice that Nifong and others are applying. For example, had the tests been shown to be positive at a high rate of probability, would the Herald-Sun have been emphasizing that there still was a very small probability that the results were wrongly-determined? Somehow, I doubt that would happen.

With all of this being said, we turn to how Nifong would seek to present this non-evidence in a court of law. While defense attorneys at times are permitted to give a defense based upon tiny probabilities that they are correct, historically the prosecution has not been given this latitude, and for very good reason. The historical standard for conviction in a criminal case has been "guilty beyond a reasonable doubt," not "innocent beyond a reasonable doubt" or even "innocent beyond a doubt."

What Nifong is trying to do is to turn the very standards of justice upon their heads, and the New York Times stands firmly with him. He and a number of people in Durham and elsewhere are demanding that the standard for not convicting these young men be something that would be impossible to attain. Nifong declared early in this case that DNA and toxicology tests would prove that a rape occurred, and that the young men who are charged committed it.

However, when his evidence went south, Nifong then changed the standards to being that as long as any probability – however small – existed that the tests were wrong, then one must assume that the tests prove that the people charged are guilty. Furthermore, if Nifong actually gains a conviction using these tactics – and given the pre-trial comments from potential jurors in Durham, conviction remains a real possibility – then literally no one in this country is safe from prosecution, no matter what proof they can give of their innocence.

On any given day, one can read on the New York Times editorial page that the Bush Administration is endangering the rights of Americans (a correct analysis, in my view). Yet, on that same editorial page, not to mention its news sections, the Times is willing to throw out all pretense of innocence and completely destroy the foundations of justice, all to encourage a politically-correct conviction of people who clearly did not commit the crimes for which they are charged.

Furthermore, there seems to be a long list of people who are in hearty agreement with the editors of the Times, not to mention the Michael Nifongs and Mark Gottliebs who have defined this travesty from the beginning. The next time any of these people tell you they believe in rights and justice and the like, remember that they are liars. That is correct; they are liars.

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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