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Duke and the Law

By Ed Koch

The lives of three young men, Undergraduate students at Duke University and members of the lacrosse team, were almost destroyed by the Durham County District Attorney, Michael B. Nifong.

The young men were accused of rape by a woman who was hired to perform at a team party as a stripper and exotic dancer. The accused students were indicted by a grand jury which was apparently not told that the undergarments of the woman had semen and DNA from at least four men that did not match that of any of the three Duke students charged with the crime.

District Attorney Nifong was told of the results of the laboratory tests, according to the DNA specialist used by the District Attorney. The specialist testified at a hearing held this week by the North Carolina State Bar Association Disciplinary Panel determining whether Nifong had committed ethical violations, as charged with such violations by the North Carolina State Bar. The hearings were open to the public and broadcast on television and radio. The criminal law in North Carolina, New York and in most and perhaps all states in the Union, requires that exculpatory evidence in the possession of the District Attorney be turned over expeditiously to the defendants' counsel. According to Newsday of June 14th, "DNA specialist Brian Meehan said he did not include that evidence in a report that he gave to Nifong for use at a hearing in the case, even though they had discussed the evidence and it might have helped exonerate the defendants....'It was poor judgment on my part,' said Meehan. 'But there was no specific reason or agenda.'" He also testified, according to Newsday, that "he found no DNA from any of the men charged in the case on the exotic dancer."

The parents of these young men are apparently considering their options, outside of the action that has been taken by the North Carolina State Bar Association Disciplinary Panel. Personally, I hope they sue everyone involved in the DA's office and not only Nifong for the gross negligence and possible criminal conduct committed by that office in violating the rules, laws and ethics to which they are subject. Duke University recently settled with the young men.

The North Carolina State Bar which brought the complaint heard by the disciplinary panel charged Nifong with "systemic abuse of prosecutorial discretion" for, The New York Times reported on June 16, "withholding evidence and making improper pretrial statements." The most egregious pretrial statement by Nifong was, "I am not going to let Durham's view in the eyes of the world be a bunch of lacrosse players from Duke raping a black girl from Durham." Nifong's statements appear intended to inflame the black community, in particular seeking their support in the political campaign in which he was running for reelection.

Fortunately, the three young men came from families with sufficient wealth to hire able, competent lawyers who pursued the investigation diligently. Reportedly, the three men and their families spent a million dollars apiece on legal costs. Had the three young men, black or white, not had the funds needed to hire superb lawyers and pay for the investigation required, in all probability, the outcome would not have been their exoneration.

For those old enough to remember, the case has aspects similar to the famous Scottsboro case. According to Wikipedia, "The case of the Scottsboro Boys arose in Scottsboro, Alabama during the 1930s, when nine black youths, ranging in age from thirteen to nineteen, were accused of raping two white woman, one of whom would later recant. The trials, in which the youths were convicted and sentenced to death by all-white juries despite the weak and contradictory testimonies of the witnesses, are regarded as one of the worst travesties of justice perpetrated against blacks in the post-Reconstruction South. The case quickly became an international cause celebre and the boys were represented by the American Communist Party's legal defense organization. The death sentences, originally scheduled to be carried out quickly, were postponed pending appeals that took the case all the way to the U.S. supreme Court, where the sentences were overturned. Despite the fact that one of the women later denied being raped, the retrials resulted in convictions. All of the defendants were eventually acquitted, paroled or pardoned (besides one who escaped), some after serving years in prison." The three young men from Duke were spared the far worse agonies suffered by the nine black men.

I believe that while great credit goes to the young men, their parents and their attorneys for the spectacular outcomes, exoneration for them and disbarment for Nifong, the fact that the nationwide media kept reporting on this case played a major role, and the national media deserve applause and thanks for the justice done here.

Every state in the Union, including New York, should change their rules where necessary to open the doors of disciplinary panels sitting in judgment on the ethical violations of attorneys, doctors and other professionals, instead of barring the public and keeping the hearings confidential, as many do. Nifong has lost his license to practice law and will now be liable to possible criminal proceedings and civil lawsuits, as he should be. The next question is what the 88 Duke professors who signed a statement during the earlier proceedings condemning the lacrosse team students without allowing the students the opportunity to present their case should now do. Their statement said, "This is a social disaster. No one is really talking about how to keep the young woman herself central to this conversation. Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism." Yes, freedom of speech applies. But is there no ongoing demand by school authorities that the signers admit error and ask the students for forgiveness?

Every law school in the nation should show the disciplinary hearings to all of its students to teach how prosecutorial injustice can destroy lives and how lawyers devoted to pursuing justice can perform near miracles, given the resources to fight for their clients.

Ed Koch is the former Mayor of New York City.

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