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A rape case turns into an ethics case

Having destroyed the reputations of three former Duke University lacrosse players he pursued as rapists, Durham State Attorney Michael Nifong pretends he can inch away from this prosecutorial disaster. But his decision last month to drop charges of rape - and not those of kidnapping and sexual offense - only underscores a legal recklessness that is now more appropriately described as official misconduct.

One week before Nifong dropped the rape charges, a DNA laboratory director testified, under oath, that crucial exculpatory evidence was withheld from defense attorneys for seven months. The director said that Nifong asked him to submit a report with an "intentional limitation." The report was to omit the fact that none of the DNA collected from the rape kit and the woman's underwear was traceable to the three defendants or any other lacrosse player at the March 13 party in which the gang rape allegedly occurred.

Nifong brushes aside the omission as a harmless oversight, telling the New York Times it was "not something that I specifically noticed." He did, however, "specifically" claim otherwise. He certified in a May court filing that "the state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant" and told a judge in September he had "no other statements" to offer on the DNA tests.

The withholding of DNA evidence, unfortunately, is only part of a larger pattern of questionable conduct. Even before police had gathered all their evidence, Nifong took to airwaves and denounced the Duke players as "a bunch of hooligans" and repeatedly pronounced himself convinced that the woman was raped.

As it turns out, no physical evidence of any kind corroborates the woman's story. She was an exotic dancer who was paid to perform at the party, and the other dancer who performed with her has described the claims of gang rape as "a crock."

The first police officers to talk with the woman found her claims to be inconsistent and not credible. She repeatedly changed the number of assailants, and couldn't identify the men until the third time she was shown photographs, all of which were of Duke lacrosse players. One of the accused has time-stamped photographs from an ATM that show he had long since left the party.

In dropping the rape charges, Nifong wrote that the woman had recanted her prior statements and "cannot at this time testify with certainty that a penis was the body part that penetrated her vagina." The DNA test revealed as much in April. But Nifong is sticking with the other charges, he told the New York Times, despite her lack of credibility. "If she says, yes, it's them, or one or two of them," he said, "I have an obligation to put that to a jury." That's the standard of proof needed to ruin a suspect's reputation?

The ugly specter of political gain in this case is now impossible to dismiss. When the claims were first made, Nifong was in the midst of a re-election campaign in which the support of black voters was a significant variable. Nifong, who is white, was opposed by a black attorney. The 28-year-old woman in this case is black and her accused assailants are white.

As if his other public statements weren't sufficiently unethical, Nifong stooped so low as to discuss the case at a candidates' forum in April: "I'm not going to let Durham's view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham."

Giving what has transpired since that time and since Nifong's re-election, the view of Durham may now be one in which prosecutors use race and class as political weapons. No wonder the North Carolina bar has filed ethics charges against him. At this point, the evidence against Nifong is more persuasive than any of his botched accusations against the Duke students.

[Last modified January 1, 2007, 23:43:24]