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Allow judicial process to work

The Herald-Sun [editorial]
Dec 19, 2006

There is immense pressure building in the Duke lacrosse case. The pressure is to toss out the rape charges against three players, and it's coming from the players' families, their defense lawyers and their many supporters on campus and across the country. It is directed against anyone who thinks the case should be decided in a court of law, not the court of public opinion, and it has two basic targets -- the accuser and District Attorney Mike Nifong.

Let's consider the case against Nifong. There is no question the DA has made mistakes in handling this hot potato of a case. He said things he shouldn't have, such as calling the players "hooligans" and wrongly predicting DNA tests would implicate them. He gave too many media interviews at the start, a mistake he has corrected by falling competely silent except in court. Now the defense lawyers have made up the slack, taking every opportunity to spin their case in public.

One serious problem for Nifong is his inexplicable use of a lineup in which the accuser was asked to choose the assailants from a group of photos that included only lacrosse players. That flawed process led her to identify the three players who are now indicted. Such a fundamental misstep may well come back to haunt Nifong.

And as we learned in court Friday, the director of a DNA lab in Burlington at first withheld results showing the accuser had DNA from other men -- not the lacrosse players -- in her underwear and on her pubic hair. The defense is trying to imply a conspiracy existed between Nifong and lab director Brian Meehan to keep the results secret. But those alleging prosecutorial misconduct have to deal with a simple fact -- Nifong did turn over the data. Defense lawyers' only real complaint is that they had to fight to get it.

Nor did Nifong explain the information sufficiently, defense attorney Joe Cheshire complained. "We had to try to discover what it meant," he said. Sorry, but we don't think a judge will dismiss the case because Nifong didn't provide Cliffs Notes.

Of course, Friday's DNA revelation was as much about the accuser as it was about Nifong. We may find the results disturbing, but let's remember what we're supposed to know about rape cases. Rape is still a crime even if if the accuser was provocatively dressed or if she was a stripper. Rape is still a crime if the accuser had consensual sex with other people. We know she is not a paragon of virtue. But that does not rule out rape.

The biggest elephants in the room are still sitting there -- the accuser's charges and the players' presumption of innocent until proven guilty. Yes, there is information that may cast doubt on whether a crime was committed. But is it enough to outweigh the accusation? That's for the courts to decide. There have also been instances of, at a minimum, prosecutorial sloppiness. But are they enough to toss the case?

That's for a judge to decide, as part of the judicial process, which should be allowed to work.

http://www.heraldsun.com/opinion/hsedits/56-800699.cfm