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Prosecutorial Indiscretion
Just when you thought DA Mike Nifong couldn't
make a worse mess of the Duke rape case
By Emily Bazelon
Posted Tuesday, Dec. 26, 2006, at 3:33 PM ET
Of all the strange, shoot-self-in-foot statements
from Durham, N.C., District Attorney Mike Nifong
in the last few daysand there are so manyone
stands out. In explaining why he is continuing to
prosecute three former Duke lacrosse players on
kidnapping and sexual offense chargesdespite
dropping rape chargesNifong told the New York
Times, "If she says, yes, it's them, or one or
two of them, I have an obligation to put that to
a jury." Nifong is talking about the woman who
says she was attacked in the bathroom after being
hired to dance at a lacrosse-team party last
March. In other words, the district attorney is
claiming that as long as she continues to accuse
any of the Duke guys, he must press charges
against them. That's so basic a misunderstanding
of his own job that it raises questions about
whether he is even qualified to hold it.
Prosecutors don't have an obligation to take a
professed victim's accusations to a jury. They
have an obligation to listen to her story, test
it against the other evidence, and then decide
whether to move ahead. This is the root of
prosecutorial discretion. Victims don't decide
when to press charges in criminal cases. District
attorneys do. And much of the time, that means a
victim's accusation doesn't get anywhere near a
courtroom. This makes prosecutorial discretion an
alarming sort of power. Prosecutors do their most
important work outside of public view and are
free to make decisions that they never have to
explain. That's one reason they're either elected
or appointed by a governor or the presidentwe
don't give this authority to officials who simply
move up the bureaucratic ladder. More to the
point, the discretion they exercise is necessary.
Courts don't have the resources to sort through
every allegation. And they shouldn't have to,
given the damage criminal charges can inflict to
the accused's reputation, even if they fall apart at trial or earlier.
Prosecutorial discretion looms particularly large
in rape cases. According to a 1999 law-review
article on the prosecution of sex crimes, "very
few rape cases proceed to a jury trial."
Prosecutors are less likely to bring charges in
response to allegations of acquaintance rape than
of stranger rape and less likely still when a
professed victim doesn't resist. From a feminist
point of view, this can all seem sinisterwomen
come to prosecutors with stories of sexual
assault and come away without justice. But it
also reflects a healthy underlying premise: As a
rule, prosecutors shouldn't bring cases they think they can't win.
Often, accusations of sex crimes come under that
heading, for all the well-worn reasons. They're
often about encounters that took place in
private, and they often come down to he said/she
said evidentiary headaches. If it's hard to see
how the proof in a case can measure up to the
standard a prosecutor needs to showguilt beyond
a reasonable doubtthen it's hard to see why that case should go forward.
Take all of that and raise it to the nth power in
the Duke case. Nifong has no DNA evidence against
the three former players, even though the lab
that did the testing used the most sophisticated
methods available. He's got cell-phone and other
records showing that one of the men left the
party before an assault could have occurred. And
now, most importantly, he's got a victim who is
changing her story. She's no longer sure she was
raped, the woman says, because she's not sure that penetration occurred.
As an abstract legal matter, Nifong can justify
his decision to deal with this new information by
dialing back the charges from rape to assault and
kidnapping. Penetration is an element of a rape
chargethe prosecution has to specifically prove
it to win. That's not true of kidnapping or of
the other sex offenses Nifong is still charging.
But that analysis is entirely beside the point.
The woman's new story too conveniently explains
away the lack of DNA evidenceif there was no
rape, then that's why none of the men's cells can
be found in the rape kit. Even if that didn't
seem suspect, shifting stories by their nature
set off credibility warning bells. What kind of
witness will this woman make? What's the jury
going to think about her changing narratives,
which the defense will do everything it can to get admitted at trial?
Those are the questions prosecutors are supposed
to ask. Nifong, on the other hand, hasn't even
directly questioned the woman about the alleged
attack. There is so much else wrong with this
caseNifong's withholding of the DNA test results
from defense lawyers for months, his statements
on the stand that he didn't know about the
results when it's now clear that he did, the
all-lacrosse-player photo lineup that the victim
looked at when she identified her three alleged
assailants. These are all reasons for Nifong to
do himself a favor, as well as the former Duke students, by tossing this
case.
Instead, he says he can't because of the woman he
calls "my victim." As long as she says she's sure
that these men hurt her, Nifong is saying, he's
prepared to believe her, and that means a jury
may, too. So, it's up to her. But this sort of
stubbornness is just as misguided, in its own
away, as that of the prosecutor who refuses to
investigate a rape charge because he can't take a
woman's accusations seriously. "You can't make
everybody back away from a fight," Nifong says.
Well, actually, if you're the prosecutor, you can. In fact, it's your job.
Emily Bazelon is a Slate senior editor.
Article URL: http://www.slate.com/id/2156216/
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URHAM, N.C. -- The Rent-A-Cunt, Crystal Gail Mangum, age 27, and her
"exotic dancing" partner for the evening, Kim Roberts, age 31, were
hired to work for $400 apiece. According to the Bunny's Hole Menu a
Strip Tease "Dance" only costs $150.00. Sucking off a Team - $400.
http://www.bunnyholeentertainment.us/
The professional hog gobbler, who is pimped out by "The Bunny's Hole"
adult entertainment service, pretended she was raped by three members
of the Duke Lacrosse team while performing group oral sex for $400.00
at an off-campus party in March. DNA testing of Crystal's skanky twat
and asshole showed nigger juice from three or more earlier tricks she
had turned and NONE from the guys at the party!
Mary and Travis Mangum, who asked that their last names not be
revealed, nigga whined to the MSM. They said the crack whore has been
portrayed unfairly. Defense #@($nics are ridiculing the cunt's
credibility. The twat's mammy and her pimp said that is one reason
they are coming forward to speak on her behalf. The main reason
however is to make a quick buck on the RACIST scam.
"She bez a charming ol' 'hoe and she bez a fine @$#*. She is not HIV
Positive yet as far as I know," mammy say. "She has always been my
pickaninny and I always use her like a rented mule," Travis mumbled.
Mary and Travis also advertised to her Johns that even though the
fecal colored slut isn't doing Out Calls this munf; she is struggling
to pay for her drug habit by taking on all Walk-ins for $20.00 an
hour. They said the #@($skinned snake charmer daughter was jus' trying
hustle the College Kids and was too stoned to make a score to repay
her pimp for an 8-Ball he fronted her. When he caught up with her he
#@&@
slapped her and stuck his Pimp Stick up her skanky ass so she
made up the RAPE tale to blame Whitey.
The mammy of the douche bag in the Duke Lacrosse gravy grab said the
crack 'hoe is being seen "lyin' like a nigga goin' to Jail" so she bez
"Playin' da RACE Card" even though the Team wanted a White girl not a
skanky fecal colored skaggy mammy.
Prosecutorial Indiscretion
Just when you thought DA Mike Nifong couldn't
make a worse mess of the Duke rape case
By Emily Bazelon
Posted Tuesday, Dec. 26, 2006, at 3:33 PM ET
Of all the strange, shoot-self-in-foot statements
from Durham, N.C., District Attorney Mike Nifong
in the last few daysand there are so manyone
stands out. In explaining why he is continuing to
prosecute three former Duke lacrosse players on
kidnapping and sexual offense chargesdespite
dropping rape chargesNifong told the New York
Times, "If she says, yes, it's them, or one or
two of them, I have an obligation to put that to
a jury." Nifong is talking about the woman who
says she was attacked in the bathroom after being
hired to dance at a lacrosse-team party last
March. In other words, the district attorney is
claiming that as long as she continues to accuse
any of the Duke guys, he must press charges
against them. That's so basic a misunderstanding
of his own job that it raises questions about
whether he is even qualified to hold it.
Prosecutors don't have an obligation to take a
professed victim's accusations to a jury. They
have an obligation to listen to her story, test
it against the other evidence, and then decide
whether to move ahead. This is the root of
prosecutorial discretion. Victims don't decide
when to press charges in criminal cases. District
attorneys do. And much of the time, that means a
victim's accusation doesn't get anywhere near a
courtroom. This makes prosecutorial discretion an
alarming sort of power. Prosecutors do their most
important work outside of public view and are
free to make decisions that they never have to
explain. That's one reason they're either elected
or appointed by a governor or the presidentwe
don't give this authority to officials who simply
move up the bureaucratic ladder. More to the
point, the discretion they exercise is necessary.
Courts don't have the resources to sort through
every allegation. And they shouldn't have to,
given the damage criminal charges can inflict to
the accused's reputation, even if they fall apart at trial or earlier.
Prosecutorial discretion looms particularly large
in rape cases. According to a 1999 law-review
article on the prosecution of sex crimes, "very
few rape cases proceed to a jury trial."
Prosecutors are less likely to bring charges in
response to allegations of acquaintance rape than
of stranger rape and less likely still when a
professed victim doesn't resist. From a feminist
point of view, this can all seem sinisterwomen
come to prosecutors with stories of sexual
assault and come away without justice. But it
also reflects a healthy underlying premise: As a
rule, prosecutors shouldn't bring cases they think they can't win.
Often, accusations of sex crimes come under that
heading, for all the well-worn reasons. They're
often about encounters that took place in
private, and they often come down to he said/she
said evidentiary headaches. If it's hard to see
how the proof in a case can measure up to the
standard a prosecutor needs to showguilt beyond
a reasonable doubtthen it's hard to see why that case should go forward.
Take all of that and raise it to the nth power in
the Duke case. Nifong has no DNA evidence against
the three former players, even though the lab
that did the testing used the most sophisticated
methods available. He's got cell-phone and other
records showing that one of the men left the
party before an assault could have occurred. And
now, most importantly, he's got a victim who is
changing her story. She's no longer sure she was
raped, the woman says, because she's not sure that penetration occurred.
As an abstract legal matter, Nifong can justify
his decision to deal with this new information by
dialing back the charges from rape to assault and
kidnapping. Penetration is an element of a rape
chargethe prosecution has to specifically prove
it to win. That's not true of kidnapping or of
the other sex offenses Nifong is still charging.
But that analysis is entirely beside the point.
The woman's new story too conveniently explains
away the lack of DNA evidenceif there was no
rape, then that's why none of the men's cells can
be found in the rape kit. Even if that didn't
seem suspect, shifting stories by their nature
set off credibility warning bells. What kind of
witness will this woman make? What's the jury
going to think about her changing narratives,
which the defense will do everything it can to get admitted at trial?
Those are the questions prosecutors are supposed
to ask. Nifong, on the other hand, hasn't even
directly questioned the woman about the alleged
attack. There is so much else wrong with this
caseNifong's withholding of the DNA test results
from defense lawyers for months, his statements
on the stand that he didn't know about the
results when it's now clear that he did, the
all-lacrosse-player photo lineup that the victim
looked at when she identified her three alleged
assailants. These are all reasons for Nifong to
do himself a favor, as well as the former Duke students, by tossing
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