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Dan K. Thomasson: Assault case at Duke smells of overreaching DAs

By Dan K. Thomasson

Monday, January 1, 2007

The sensational rape allegations surrounding three Duke University lacrosse players presents an almost perfect testimonial to growing concerns about the violence being done to the nation's justice system by ambitious, unbridled prosecutors who apparently have been reared on "ripped from the headlines" television like "Law and Order" in which self-righteous, unyielding district attorneys never (well, almost never) lose.

With the case that won him re-election as the prosecutor in Durham, N.C., about to come down around his ears, Michael Nifong seems to be running for shelter as fast his legs will carry him, eliminating the key charge of rape and telling a national newspaper that the other allegations of sexual assault and kidnapping also might be dropped if the exotic dancer who brought them shows any more doubt.

In case you have been living in a vacuum, the woman, who is working her way through a predominantly black state college, charged that three members of the Duke lacrosse team she and another stripper had been hired to entertain at a private team party dragged her into the bathroom and raped her.

It was a natural for Nifong, who was in a tough re-election campaign. It pitted a black woman against white men and privilege against poverty in a town where one of the nation's elite universities always has been resented by at least half the community. He jumped into the case with the alacrity of an alligator smelling lunch and went public with his own complaints that the accused were "rapists" and "racists" when very few facts were in.

His entire case now seems to have been based almost solely on the woman's word; it has been obvious for some time that the evidence doesn't support him.

None of the DNA taken from the woman's underwear or her vaginal and anal areas matched anyone on the lacrosse team. The DNA, however, did come from several other unidentified men, a fact Nifong and the lab director colluded to withhold from the defense team for some time.

The woman's identification of her alleged assailants was flawed as well, and appears to have been manipulated by the police department. One of those identified has evidence he wasn't even at the party during the claimed incident.

After telling nurses and doctors and anyone who would listen that she was raped from behind, she now says that she can't be certain there was penile penetration, resulting in the dropped rape charge.

It's shades of Tawana Brawley, the young black woman who claimed she had been kidnapped and raped by unknown white assailants only to finally admit she had made the whole thing up to escape her parents' wrath for being delinquent.

Well, that's also how political careers are made. Just ask the Rev. Al Sharpton, who bought into Brawley's tale hook, line and sinker and went on to political protest fame.

Quite clearly Nifong has begun to realize the fragility of his case and is looking for a way out, noting that he will follow the evidence wherever it takes him. And since it takes him nowhere, one would expect him to drop the matter.

But don't expect it to be that easy. He now faces the possibility of an ethics investigation by the North Carolina bar association and at least one congressman from the state has asked U.S. Attorney General Alberto Gonzalez to investigate.

Going to trial and letting a jury find the accused men innocent might be his only way to save any face.

Increasingly, this entire affair looks like a disgraceful travesty. The tragedy is not just that it is another incident of abused legal authority, but that it has disrupted the lives of young men who now will always reside under a shadow; damaged the reputation of a great university that has seen its admissions applications decline precipitously, and caused the parents of the accused endless hours of pain and huge amounts of money.

In some ways, the university's officials are no better than Nifong, having overreacted in a classic example of destructive political correctness by firing the lacrosse coach and canceling the season of one of the best lacrosse teams in the nation. The team has since been reinstated and Duke's president is now in the forefront of demanding explanations from Nifong.

But none of this, of course, needed to happen. A prudent prosecutor would have not let his own re-election problems or the specter of racial politics drive him into making hasty decisions based on nothing more than the word, disputed early on by her fellow stripper, of a woman who had no evidence to back her up.

In some ways, the woman herself, whatever her motives, has been a victim of this prosecutor, who may have used her far more violently than what she has alleged.