Why the Duke Hoax Continues
Part II: Durham and the Politics of Entitlement

by William L. Anderson
by William L. Anderson

DIGG THIS

At a community forum last spring held at North Carolina Central University, the mostly-black crowd waited to hear from Durham County District Attorney Michael Nifong, who was responding to charges that members of the Duke University Lacrosse team had gang-raped a black stripper at a party the night of March 13. After having promised that DNA tests taken from all of the white players would identify who committed the alleged rape, Nifong was faced with the reality that there were no DNA matches anywhere. He had come up completely empty.

The mood of the crowd clearly reflected dissatisfaction with the DNA results, and one of the loudest black activists in Durham, Victoria Peterson, already had addressed the crowd, telling them that the reason there were no DNA matches was that people at Duke University Hospital, where the alleged "victim" had been examined, had "tampered" with the evidence. The crowd cheered in agreement.

Nifong, who would be facing a primary election in a little more than a month from that meeting, then told the crowd, "My presence here means this case is not going away." Indeed, it did not "go away," and is very much with us, and especially three young men who clearly did not commit rape, but are facing the real possibility of conviction and imprisonment in a state that has a terrible reputation for wrongful convictions.

After telling the cheering crowd that he did not need DNA in order to obtain indictments and convictions, Nifong proceeded to indict two lacrosse players, Colin Finnerty and Reade Seligmann, just before the election, and narrowly won a primary that he seemed destined to lose before the appearance of the so-called "Duke Rape Scandal" (I call it the "Non-Rape Scandal"). Shortly after the election, he secured an indictment against David Evans. Thus, we can say, as many have said, that Nifong won by "pandering" to the black voters in Durham who clearly were not in a mood to listen to any evidence except that which would confirm that the three young men raped the 27-year-old stripper.

Most of us who have written about this sorry tale aim much of our invective against Nifong, and I, for one, have no regrets. Nifong, as Professor K.C. Johnson has demonstrated conclusively, at the very least has obliterated many of the rules of the American Bar Association Code of Conduct, not to mention conducting an illegal identification process and could face disbarment in the future. (This is assuming that the legal powers in North Carolina actually care about prosecutorial wrongdoing.) At the worse, he has broken the law, used his position of authority to lie, and abused his powers.

Yet, I do not believe Nifong has done these things of his own accord. Had the accuser claimed the men were black, given the evidence turned over to the defense attorneys so far, it is doubtful these charges would have gone anywhere. After all, the woman had a criminal record and was well-known to the police. As I will point out later, she also has a bad reputation in her own community. Thus, it was not the accusations of rape itself that brought Nifong to a point where he was willing to bend – and perhaps break – the law in pursuing the case. It was the fact that she had accused white males, and, more specifically, white males from Duke University.

By pursuing this case, Nifong was able to tap into the deep resentments held by blacks in Durham both against local whites in general and Duke University in particular. Because blacks make up about half of Durham’s population, they are a potent political force, and African-Americans are well-represented in city government, the local police force, and the political scene in general.

Yet, just because blacks play a leading role in Durham politics is not in itself a compelling reason that Nifong has conducted this case as he has. For example, I could not have imagined a prosecutor doing the same things as Nifong in Atlanta when Andrew Young was mayor of that city. No, there is more than just the racial numbers pushing this wrongful prosecution in Durham. What drives this case is the politics of entitlement, and in this situation, many if not most black residents (and especially voters) of Durham believe that they are entitled to a guilty verdict no matter what the factual evidence indicates.

I will repeat myself. Nifong is able to drive this case forward because the black voters (and some white liberals) – led by a number of black ministers and other educated black elites – believe that they are entitled to seeing Finnerty, Seligmann, and Evans convicted of kidnapping and rape and thrown into prison and treated without mercy. Furthermore, I am firmly convinced that most of the people in this category do not care if an actual rape occurred or not; they want a conviction because they believe that the "system" owes a guilty verdict to the community, and they want Nifong and the judges involved in this case to grease the skids to where a conviction will be possible to obtain in what appears to be a court of law. Yes, Nifong has been "pandering," but he has been "pandering" to people who are demanding such conduct. Such is the ugliness of a political prosecution.

I realize that this is a very harsh and condemning statement, and some readers will interpret this as "proof" that I am doing this out of racial animus. That is not the case, although there will be some out there that never will be convinced otherwise. Let me explain.

The Politics of Entitlement and Reparations

When we hear of "entitlement" in the political sphere, we think of "entitlement programs" such as food stamps, welfare payments, and other transfer systems in which people who "qualify" by way of not meeting a certain income threshold. One even can expand the concept to programs of "affirmative action" in which schools and employers are expected to aggressively look to admit or hire blacks or people in other officially-designated "minority groups" at higher rates than had been the case in past years when racial and sexual discrimination was the norm.

Furthermore, one can say that the politics of entitlement has been expanded to include the emotional subject of "reparations," in which some black activists like Randall Robinson and Al Sharpton are demanding that whites simply turn over huge portions of their incomes to black Americans as "repayment" for slavery, which officially ended in this country 140 years ago. Those demanding a program of "reparations" see it as a program of entitlement, just as do advocates of "affirmative action" believe that because of past racial discriminatory practices, people belonging to minority groups are "entitled" to special consideration in certain situations.

Furthermore, such entitlements are put into law, which is one of the reasons that the selection of federal judges has become such a contentious political process, as judges at all levels try to sort out just what Congress means when it mandates things like affirmative action. But while Congress and the courts can require colleges and universities to admit more minorities or businesses and other organizations to hire more blacks and women, Congress and the courts cannot mandate rape convictions. Only juries (or judges, in bench trials) are permitted to determine whether or not a crime occurred, and whether or not the person or persons in the dock are the perpetrators of that crime.

While people decry the large numbers of young black men (and increasing numbers of young black females) who are incarcerated in America’s state and federal prisons, it is clear that no legal system can have an affirmative-action based set of criminal convictions. In other words, the government (at least at this time) is not going to mandate that two whites be convicted for every black in order to strike a "racial balance" in U.S. prisons.

(None of this is to say that the current state of incarceration in this country is satisfactory; in fact, I believe that the present situation, with more than two million people in prison – one-fourth of the world’s total prison population – is a national disgrace, and I have written much about this sorry set of affairs. With huge numbers of black males in prison, mostly on drug-related charges, I and others have written elsewhere that the present policy of imprisonment borders on madness. Moreover, it also is clear that many blacks – and whites – have their own tales to tell about police and prosecutorial misconduct, including Radley Balko’s recent article in Reason on the arrest and wrongful conviction of one black man in Mississippi, Cory Maye.)

With this country’s bitter racial history – and especially the Jim Crow Era – one should not be surprised to see this bitterness spill out. At a rally at NCCU, student Chan Hall declared that even if the lacrosse players were not guilty, they still should be prosecuted out of revenge for what happened to blacks in the past. Hall, as well as thousands of other blacks in Durham County, seems to believe that blacks are entitled to at least seeing the three young men on trial, but there is no doubt where he and the others stand when it comes to the evidence: they need no evidence to convict.

(A well-known forensics expert who often works rape cases told me in a recent email that the key element in taking a rape case to trial is the "community’s willingness to convict." In most cases, the expert told me, jurors carefully examine the conduct of both the accused and the accuser. The person added: "According to my resource, if the DA has a community who is not willing to convict, a case with issues … probably won't go to trial. If he does, it may proceed." Then came the following kicker: "It appears, in the Duke case, that you not only have a community willing to convict, but who is actually overly zealous towards that end. In fact, it appears…that they would be willing to convict based on the racial remarks made alone, even if a rape never actually occurred [which many of us seriously question].")

Again, we see the politics of entitlement at work. We have a significant portion of the potential jury pool that already has declared it is not interested in what actually happened, only in what is perceived to have happened, or what certain people wish were the case. Obviously, I am not the only person to understand this situation; Nifong also understands it and not only is pushing hard for a trial, but wants to make sure that the trial is in Durham, and not an alternate location, where a jury might be more circumspect.

Black Ministers and the Black Durham Elite

I recently wrote about the role of the NAACP in the case, in which that venerable organization has decided to go against everything it historically has sought to secure in changing criminal procedures in order to reduce the incidents of wrongful identification and conviction. The Durham NAACP’s decision to help railroad convictions in the lacrosse case means it now endorses procedures that would have made ardent Jim Crow racists proud.

As I look at the wreckage created by this wrongful prosecution, I realize that there is one group in Durham that could have made a difference: the black ministers. Unlike most of the infamous Duke Gang of 88 faculty, these are men who profess a belief in God and most hold to a relatively conservative Biblical theology. They also claim to believe in that thing called truth.

When the story broke in late March, many of the ministers jumped on the charges and immediately assumed them to be true. In that, they hardly were different than many Duke faculty members and students, and one can understand their reaction. However, unlike the Duke faculty and students, at least some people in the black community of Durham were familiar with the accuser.

Because the accuser was attending NCCU, the student newspaper decided to do a sympathetic story on her, especially since NCCU students were in the forefront of protesting this alleged assault. Student reporter Kristiana Bennett began asking friends and neighbors and found some unfavorable portrayals:

Then, in the course of her reporting, Bennett found people who said unflattering things about the accuser. They offered the kinds of details that defense attorneys hired private investigators to find, and Bennett wished she had never heard them. Now she and her editors at the Campus Echo had to decide what to do with them.

…Not only did she and her fellow students instinctively trust the accuser, they understood the political implications of doubting her. This case was about much more than the facts, which were still in question. It was about the realities of being a black woman in America in 2006. (emphasis mine)

The NCCU paper, in the end, did not write the story that the other students would not have wanted to hear, anyway. Meanwhile, black ministers were holding prayer vigils at the house where the lacrosse party took place and a number of organizations, including black churches, the NAACP, Al Sharpton, and others set up a website supporting the accuser. A reading of that site demonstrates that the organizers are not concerned with being swayed by facts and evidence. It reads, in part:

If there wasn't major substance to these allegations they would have been dismissed long ago. I admire you for your courage to speak out against those three arrogant losers. Continue to stand in truth and righteousness and GOD will undoubtly exercise vengeance on them.

Their bigoted and wicked defense lawyers as well as...alumni don't understand who is really in control of the three's... future, but those of us of great faith know who is in control of the outcome of this case. GOD is in control and He is the Sovereign Ruler of this universe and nothing happens outside of His control. What I am telling you sister is don't be dismayed by the wicked tactics of the defense attorneys and by ...alumni, because the battle is the Lord's and He says vengeance belongs unto Him and He will repay, and it is a fearful thing to fall into the hands of the living GOD of the universe. HEBREWS 10:30:31

These [three] and their posse of liars should be shaking in their pants because GOD never loses a battle and He will not lose this one!! You see sister those fools are no match to the Living GOD. Their wicked and vile lawyers don't know whether the three fools will be let loose to prey on other women or confined to a jail cell-where they belong, but GOD does know their future. Continue to pray and trust in the Living GOD and His WORD.

I pray that the District Attorney will reveal the true character of those three... and I hope he will continue to pursue truth and justice.

The irony is just too much even to bear. Here is a case built upon lies, and prosecutorial misconduct, the very kind of misconduct that the groups which set up the website claim they are against. From Nifong’s early press interviews to the bogus lineup that K.C. Johnson exposed as a legal fraud, this case has been about dishonesty – and the people of Durham demanding even more wrongdoing, all because they believe they are entitled to a wrongful conviction.

The behavior of the ministers is one that is difficult for me to take, personally. My father was a minister for many years and I believe the same Bible those ministers in Durham claim to believe. Yet, from their pulpits, they continually have preached that Finnerty, Seligmann, and Evans are guilty of raping the accuser, and don’t present any evidence otherwise.

Perhaps one Sunday morning, some of those ministers might wish to read from the book of Proverbs, Chapter 6, verses 16–19:

These six things the Lord hates, yes, seven are an abomination to him: A proud look, a lying tongue, hands that shed innocent blood. A heart that devises wicked plans, feet that are swift in running to evil. A false witness who speaks lies, and one who sows discord among brethren. (NKJV)

These words from Solomon speak for themselves, for if the young men are falsely convicted, or harm comes to them (as the New Black Panthers threatened when they came to Durham last April – openly welcomed by the black elite of Durham, as well as Nifong himself), then the ministers will have innocent blood on their hands.

There are few things more abominable than quoting the Bible in a manner to promote wrongdoing, or using the pulpit to spread lies, or at the very least encourage people not to find the truth. But there are other personal issues I have with these men.

My two adopted sons are Ethiopians, and my wife and I often discuss the reality of the entitlement culture in this country. As far as U.S. law and policy go, the two boys are considered to be black and, thus, will be "entitled" to things that perhaps others will not be able to obtain.

I do not wish them to be people who want innocent people to come to harm because they do not fit a particular political profile. I want them to be people who see right and wrong, and will choose the former over the latter. Furthermore, because blacks often are the victims of wrongful identification, anything the NAACP does to further such injustices places my own sons in greater danger.

No doubt, some angry readers will accuse me of "blaming the victim." I am not "blaming the victim;" instead, I am blaming those people who had the opportunity to do what was right – and chose otherwise because such choices were politically feasible. The victims here currently are facing trial and possible long prison sentences for a hoax which certain people found to their advantage to promote. Anyone who cares about justice – as opposed to entitlement – should never forget that truth.

Part III will examine the official court apparatus and show why the system is unable to avoid hoaxes and why prosecutors and judges pursue wrongful convictions.

Correction:

In Part I, I identified the sport of lacrosse as being exclusive to prep schools. As a number of people have reminded me in emails, lacrosse now is a sport played both in private and public schools. Thus, while the stereotype of the lacrosse player is the rich, white preppie, the reality is much different. I am happy to make this correction.

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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