The real issue at Duke: Part II

Thomas Sowell

1/3/2007 12:01:00 AM - Thomas Sowell

As predicted in this column last May, District Attorney Michael Nifong will not take the Duke University "rape" case to trial -- at least not as a rape case. His latest ploy has been to drop the rape charges and keep related charges hanging over the accused Duke students' heads.

This happened shortly after the head of a DNA laboratory testified under oath on December 15th that there was DNA from other men, but not from Duke students, on the stripper who accused the students of rape -- and that he and Nifong knew this months ago, but had decided to keep it secret, in violation of the rules.

What did that leave Nifong with? The multiple, inconsistent, and sometimes mutually contradictory claims of a woman with a police record, whose fellow stripper at the Duke party contradicts her story.

The hard evidence likewise points the other way. That includes not only the DNA tests but also a bank surveillance camera picture showing one of the accused taking money out of an ATM at the very time when he was supposed to be raping the stripper.

Why not just drop all the charges, as the students' attorneys have asked Nifong to do? Nifong cannot afford to drop the charges.

Just as this case was the salvation of his career, by enabling him to win the black vote with inflammatory charges against white students accused of raping a black woman, so this case could mark the end of his career, in view of charges of his own misconduct that could lead to disbarment or even to criminal prosecution for obstruction of justice.

Nifong is riding a tiger and he can't just get off.

Those remaining charges hanging over the heads of the Duke students can be Nifong's salvation, even if he never proves a single one of those charges in a court of law.

It is an old ploy to keep some charges hanging over the heads of accused individuals, even if you don't have enough of a case to convict them, just so that they can be persuaded to plea bargain down to something with minor penalties, in order to get the hassle over with.

That would also get the heat off Nifong, who could then claim that in fact he had some basis to prosecute in this case, when in fact he had nothing from day one.

If bad gets to worse, Nifong can take the case to a jury, hoping to find at least one juror so biased by racial resentments as to refuse to declare the Duke students not guilty. A hung jury can save Nifong from being hung for a groundless prosecution.

We can only hope that the Duke University students hang tough, even though this whole process is costing their families money, beginning with bail set several times as high for them as for someone accused of murder in the same jurisdiction.

If they "confess" even to something that will only get them probation or a few hours of community service, the stigma will follow them as long as they live and blight their personal lives and professional careers.

Far more important, it would allow a nationally publicized gross misuse of prosecutorial powers to go unpunished, emboldening other prosecutors across the country to think that they can get away with anything.

What happens to Nifong matters far beyond Nifong, just as what happens to these Duke University students matters far beyond these students.

Nifong has not only played the black voters for suckers, he has been helped by knee-jerk reactions from liberals in the media and in academia, who started loudly denouncing the accused students from the moment the accusations against them were made.

The whole schedule of the Duke lacrosse team was cancelled and its coach fired. Scores of Duke professors took out an ad, lining up against the students. The New York Times led the media attacks on the students. The local NAACP chapter joined in the lynch mob atmosphere -- a painful irony, in the light of history.

An atmosphere of mindless reactions will always be exploited by demagogues. Our gullible vulnerability to such manipulation is the larger tragedy in this sordid and painful episode. District Attorney Nifong was neither the first nor the last demagogue to take advantage of that gullibility.