With a judge's decision to reduce the bond for one of the three Duke University lacrosse players charged with raping an exotic dancer in March comes the first sign that the criminal justice system can, and will, self-correct the ongoing travesty in Durham. District Attorney Mike Nifong had a threadbare case weeks ago and now, in light of new information, it is clear that he is straying into prosecutorial misconduct.
"Unless he has a player from the team who is going to testify that this rape occurred, there is no way he will win this case and there is no way this case should have ever been brought," Mark Edwards, a Durham criminal defense lawyer tells the Raleigh News & Observer. Edwards has no obvious axe to grind: He appeared in an ad for Nifong during the spring Democratic primary campaign for district attorney.
A just-released account of the night in question throws all the supposed facts of the case into flux. According to a police report prepared by Officer G.D. Sutton, Nifong's victim went to the team's party with three other dancers, not one, and was assaulted by five players, not three. "She later stated that she was penetrated by all five of the guys," Sutton writes.
But it turns out that was just one version police heard. They also heard she had been raped by two men, raped by three men, and groped by an unknown number in front of the house.
"At one point she said that she had not been raped," Sutton noted in her report, compiled the day after the March 13 incident, but handed over to defense attorneys just last week.
Taken at any kind of objective face value, this suggests a case with very little, if any, backbone. Prosecutors are usually loath to purse such cases, even out of self-preservation or a simple cost-benefit analysis. This has set off a cottage industry in both local and national media tasked with identifying the "real" reason Nifong charged Duke players with rape in early May.
Repeated and popular attempts to locate Nifong's handling of the case along some selfish political motivation—such as the May 22 primary vote—fail to satisfy. Someone so calculating and cynical as to seize on rape charges in order to cook class and racial tensions into electoral success would not do what Nifong has done. He would have built-in some sort of escape hatch for himself along the way, a reduction in charges or a way for a civil suit to do the heavy lifting of politically popular "social justice" and not his DA's office. That did not happen.
Instead, Nifong doubled-down and insisted that the accuser's story was accurate. To this day, in fact, Nifong stands behind his initial reading of the case as a racially motivated hate crime "totally out of place for this community in this day and age."
In a rambling email sent to Newsweek two weeks ago, Nifong claims none of the shifting accounts shake his case. "None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion that I expressed initially," Nifong writes.
"The only people I have to persuade will be the twelve sitting on the jury, and if you want to know how I am going to do that, you will need to attend the trial. If, in the meantime, you and other 'journalists' want to continue your speculations in the competition to come up with the most sellable story—and that seems to be everyone's bottom line—then please spare me the recriminations when you get things wrong, as you inevitably will," he continues.
The only thing missing is the clacking of Captain Queeg's ball bearings. Nifong did not bring the case to win a Democratic primary; he brought the case because he is unhinged from reality.
Besides, ascribing political motivations to Nifong's actions, or those of any prosecutor, simply sets the bar too low. A prosecutor is supposed to be more than a career-boosting opportunist. The system only works if he or she puts the truth ahead of a conviction and works diligently to dig out that truth. In the case of Nifong, he is not even in the ballpark of a conviction and the objective truth of the matter does not seem to enter his calculation.
Citing the confusion over the basic facts of the case, Duke law professor James Coleman recently called on Nifong to appoint a special prosecutor to the case and back away while he still can.
"This is the kind of stuff that causes the public to lose confidence in the justice system," Coleman told reporters.
But another, deeper truth is re-affirmed by events in Durham: Nothing is more dangerous than a lunatic with government letterhead. It is a black mark on all of us that it took a seedy mix of race, money, sex, and violence for anyone to notice that crucial fact of American life at work in a courtroom.