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What the Duke Non-Rape (and Non-Kidnapping/Sexual Assault) Case Taught Me in 2006

by William L. Anderson

In less than half a day, 2006 will be past, and when 2007 arrives at midnight, I can say that I will be a wiser man in the New Year than I was in the past 365 days. Since much of my life has revolved around the effort to debunk false charges against Duke athletes David Evans, Collin Finnerty, and Reade Seligmann, perhaps it is time that I share with readers some things that this experience has taught me.

If I have learned anything, it is that the state is an entity that will seek to crush life and liberty, and even the best efforts to check its awesome and illegitimate power can only hold back some of the evil that government brings into our lives. Yet, at the same time, I also have learned many things about people who are willing to stand up to those representatives of government who intend to do what is wrong. So, here are some of the lessons I learned from this past year:

The State is predicated toward doing what is wrong.

Read the indictments against Evans, Finnerty, and Seligmann. They do not say "Michael Nifong vs. Evans, et al. They do not say the City of Durham vs. …. They do not say Durham County vs. …. No, the indictments say the State of North Carolina vs. David Evans, Collin Finnerty, and Reade Seligmann. The State.

This is not by accident. Michael Nifong, while using the hoax as a tool to win an election for district attorney of Durham County, ultimately represents the State of North Carolina. When he files an indictment, when he goes before a grand jury, when he appears in a courtroom, he represents the State. Furthermore, there literally is no mechanism that the State of North Carolina throws down to derail his efforts, unless a judge stands in the way.

So far, we have seen two judges give Nifong carte blanche, and a third, Judge W. Osmond Smith III, has not done anything yet to end this fraud. Now, I believe that Smith will do that in the future, should Nifong refuse to drop all charges, but for now Smith still is permitting the official version of the story from the State of North Carolina to prevail. That tells us something about the power of the state, which is able to keep a hoax on the rails even though its main promoter has been thoroughly discredited.

Only the state has the power to do such things. In private organizations, people who break trust are removed or disciplined. The State of North Carolina, however, does not such things to its power brokers who break trust and lie. Look at what happened to prosecutors such as Nancy Lamb, who promoted the most expensive case in North Carolina history, the Little Rascals case. It was a lie from the start, and a very obvious lie. Lamb still is a prosecutor today, while people in Edenton still suffer from the human wreckage that she created as an employee of the State of North Carolina. David Hoke is the number-two administrator for the court system of the State of North Carolina, despite the fact that he withheld evidence in which a man almost was wrongfully executed by the State of North Carolina for a crime that he never committed. Indeed, the State protects its own, and it can be expected to do the same for Michael Nifong.

In the Little Rascals case, there never was one instance in which the State of North Carolina admitted wrongdoing, despite the fact that its employees, from prosecutor to social workers actively promoted hoaxes. The State of North Carolina has never admitted wrongdoing in the Alan Gell case, despite the fact that State employees tried to murder him in the official capacity of serving the State.

Yet, in the fact of all this monstrous State power, how has Nifong been exposed? I will cover that point next:

Individuals can rise up against state power – but only at high costs to themselves

The few supporters of Nifong’s dishonest and malicious prosecution, including the NAACP, have publicly decried the "high-priced lawyers" for the defense, and they are correct about the high prices. For the past 10 months, the defendants’ families each have paid $80 thousand a month for the legal services of the various attorneys representing them.

Yet, even high-priced attorneys cannot "buy" justice, no matter what one might read in entities like the Wilmington Journal. Early in the process, even after state DNA lab tests demonstrated that Nifong’s original contention – that DNA would identify the "guilty" and "rule out the innocent" (his words) – was pushed back because the facts of the case did not fit Nifong’s theory, the defense was, well, on the defense.

The defendants faced hostile judges who deferred to Nifong, who permitted a member of the Black Panthers to shout "Dead man walking!" in a courtroom and did nothing but ask for quiet, and who clearly were not interested in finding what actually had happened. They saw their job as furthering the raw power of the State of North Carolina.

Yet, today Michael Nifong faces charges from the North Carolina Bar Association that could (and should) lead to his disbarment, and very few people are willing to bet that this case even will make it to trial. Furthermore, it is possible that Nifong himself will face a criminal investigation, as well as police investigators who have helped Nifong defraud the public.

Just a few months ago, it seemed that Nifong and his supporters held all of the cards. Attorneys knew that he was hiding evidence, but Nifong insisted he was not, and the first two judges assigned to the case agreed and refused to order Nifong to turn over anything else. Furthermore, they placed a gag order on the attorneys, which was hypocritical, since Nifong already had inflamed the public with his outrageous and dishonest statements in March and April, long before the defense could answer.

Only when Judge Smith in September ordered the prosecutor to turn over everything, in accordance with North Carolina’s Open Discovery Law, did Nifong obey, and even then he tried to hide the incriminating DNA evidence (evidence that incriminated what Nifong and the accuser, Crystal Gail Mangum, were saying) in a stack of more than 1,000 documents. In short, a judge willing to obey the law ultimately helped to expose the fact that Nifong was breaking the law and lying in court, both of which are crimes.

Unfortunately, most people do not have the resources that the families of the accused enjoy, and it is obvious that prosecutors around the country take advantage of that situation. Prosecutors have the vast resources of the State behind them (resources that are taken by force from private, productive people), but defendants must depend either on their own income or be subject to being defended by "public defenders" who are woefully understaffed and who have neither the resources nor the incentive to fight the government.

Thus, if anyone truly wishes to fight the State, such a fight will require resources and much courage. The State is free to harass, kidnap, beat, and kill anyone who might resist its representatives, and I have no doubt that Nifong and his state lackeys would have provided for a memorable stay in prison for the young men had they ever been convicted. Attorneys such as Joe Cheshire and Kirk Osborne and others have done a marvelous job in representing the three defendants, but they also knew their limitations, and they had to work within legal boundaries that did not bind Nifong.

Thus, even though the defendants had financial means, they lacked a forum by which to get out their story. Thus, a very unlikely group of people helped to come to the rescue:

The Internet can be a powerful tool against the State

When the story broke in late March 2006, literally every official news outlet became a mouthpiece for Nifong and Crystal Mangum. The list is long. From local newspapers such as the Raleigh News & Observer and The Durham Herald-Sun to all major news networks to Time, Newsweek, Washington Post and The New York Times, the story was the same: Duke lacrosse players brutally raped Mangum at a drunken party.

Moreover, loud voices from the Duke University faculty, administration, and student body joined with the mainstream news outlets to condemn the players and to demand convictions for rape. Duke President Richard Brodhead personally cancelled the lacrosse team’s season and literally threw the team to the wolves, hiding behind a series of "talking points" that blamed everything on the lacrosse team because it had a party with underage drinking and had hired strippers. (As I pointed out before, Duke’s vaunted basketball team also had a party with strippers performing, but Brodhead – who almost certainly knew about it – said nothing about that.)

Lacrosse players had faculty members telling them during class that they were rapists. A "wanted" poster with pictures of the lacrosse players on it (accusing them of raping and beating Mangum) were plastered all over Duke’s campus, with not a peep of protest from Brodhead and his administration. There literally was nowhere to turn, as the players each day had to run a gauntlet of people banging pots, yelling curses at them, and holding signs demanding that the individuals on the team be castrated.

Furthermore, not one mainstream media entity was even interested in anything else but Nifong’s version of events. The players were denounced on the editorial pages of every major U.S. newspaper, and when Finnerty and Seligmann were indicted in April, Newsweek plastered their photographs on its cover, signaling to its readers that the two were rapists.

So, on one side there was all of academe, the State of North Carolina, the City of Durham, the New York Times and the rest of the MSM declaring that they were interested only in what Nifong had to say, and that any attempts by the players to deny guilt were to be interpreted as a further cover-up, a "blue wall of silence." On the other side, there were only the attorneys, who had almost no media outlets where they could turn, or if they could speak, it was only to hostile reporters who were in Nifong’s hip pocket. Furthermore, they soon were to be gagged and could not speak out at all.

So what happened? How did the frame-up fail? It failed because of an unlikely group of people who individually began to use the Internet were able to join forces and to build a movement that has overwhelmed the MSM and the apparatus of the very State itself.

First there were a few columns and articles from people like Wendy McElroy, who sniffed this fraud out from the start. Then there was the Johnsville News. Lew Rockwell graciously provided a forum for a few articles that I wrote, despite the criticism that he had to endure for letting me have my peace. Second, a Brooklyn College history professor named K.C. Johnson started writing a few pieces here and there, mainly concentrating on Nifong’s behavior.

When summer came, more and more people jumped in. A blog called Liestoppers was begun, as well as Crystalmess and Friends of Duke University. The bloggers and writers began to link each other and seek ideas from one another. A courageous woman named Joan Foster, who never had been involved in any "cause" before, started emailing the editors of the Raleigh N&O to demand an explanation as to why their coverage was so biased. And then Johnson created his own blog, Durham-in-Wonderland, which has been the centerpiece of the anti-Nifong tsunami. The conservative black woman, La Shawn Barber and a conservative attorney, Michael Gaynor, also stayed on top of developments, skewering the prosecution at every opportunity.

Furthermore, the forensics expert Kathleen Eckelt began to weigh in, giving clear scientific evidence as to why literally nothing that Nifong and Crystal (and the State of North Carolina) said was true. Stuart Taylor, the legal correspondent for the National Journal also used his influence as the first mainstream writer to call this thing for what it was: a hoax.

The Internet chatter also gave the attorneys the cover they needed to do their investigations, and in time they uncovered material that later would be extremely helpful in bringing this sorry case to where it is today. While I can say that the attorneys have not leaked anything to me or to any other blogger, as far as I know, the Internet provided a forum by which the truth could come out.

Belatedly, the MSM has swung around. The New York Times, which until December had been Nifong’s most powerful media ally, finally began to change its theme, bringing in one of its top investigative reporters, David Barstow, to take charge of the story. The Washington Post, Los Angeles Times,N&O, and other influential newspapers have published editorials calling for Nifong to drop the case, or at least give up his role in prosecuting it. The long knives are out in the MSM, but only because the gang of relatively obscure bloggers on the Internet forced their hands.

Honest people can make a difference

There still are a few honest people left in the state apparatus, and apparently Judge Smith is one of them. While many supporters of the accused wish that Smith would be moving faster to shut down this case, it was Smith whose order finally smoked out the evidence that Nifong was hiding – and thus exposed the prosecutor to ridicule and, one hopes, a criminal investigation.

Other prosecutors in North Carolina have urged Nifong to drop out of the case. Only recently, it was revealed that last fall the other prosecutors in the state urged Nifong to let them "help" to prosecute it. In reality – something Nifong realized – the other prosecutors wanted to see Nifong’s "evidence" in order to see if it was as scanty and devoid of facts as the defense and the bloggers were claiming.

Obviously, Nifong was not about to let his fellow North Carolina prosecutors know the extent of his fraud, so he turned them down. I suppose that with Nifong’s criminal behavior now exposed, these DAs are glad not to have any part of him. While this does not make other North Carolina prosecutors "honest people," it does say that at least they are not willing to swallow every lie that the state tries to produce.

In a previous article, I pointed out that the one group of people who have told the truth from the outset has been the Duke University lacrosse players. Furthermore, despite protestations from Nifong and his supporters (now dwindling quickly), the attorneys also have been telling the truth. I am glad to see that honesty is now being rewarded. It also is instructive to point out that on the other side, all of the lies in this case have been told by either employees of the State of North Carolina or their supporters.

The end of the criminal case against Evans, Finnerty, and Seligmann is approaching. I seriously doubt this will make it to trial, or even the scheduled February 5 hearing. When Nifong was strutting before the television cameras, and members of the press were soaking up his every word like the ancient Greeks soaked up the Oracles of Delphi, I envisioned three young men being railroaded into prison just like poor, innocent defendants in other cases in North Carolina have been wrongfully convicted and imprisoned. Yet, I can say with confidence that such a day is not going to come, at least in this case.

My lessons learned for 2006, my fervent hope for 2007 is that Nifong and his police investigators will meet the bar of justice. I also hope that many of his supporters, and especially those at Duke University, will be on the wrong end of lawsuits, and that some lose their positions of employment, if for no other reason than to deprive them of their forums from which they spouted hateful lies.

And I also hope – and this is a very long shot – that prosecutors around this country will understand that they are on notice. Michael Nifong may seem to be an outlier, and certainly many prosecutors are anxious to portray him as such. However, there are hundreds if not thousands of people in this country who are employed by the State who are using the power of their positions to do unspeakable evil. It is my wish that these people also meet the fate that is about to befall Michael Nifong and not have a Happy New Year.
January 1, 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.