Different River

”You can never step in the same river twice.” –Heraclitus

April 11, 2006

Durham D.A. Will Prosecute Anyway

Filed under: — Different River @ 12:53 pm

Despite that fact that DNA evidence seems to have exonerated the Duke lacrosse players, the Durham Country District Attorney says he’s going to prosecute them anyway:

DURHAM, N.C. (AP) — Durham County’s chief prosecutor said Tuesday he will not abandon his investigation of allegations that an exotic dancer was raped and beaten at a party thrown by members of Duke University’s lacrosse team.

“A lot has been said in the press, particularly by some attorneys yesterday, that this case should go away,” District Attorney Mike Nifong said at a community forum. “My presence here means that this case is not going away.”

On Monday, attorneys representing members of the lacrosse team said DNA from the 46 players tested did not match evidence collected from the woman who says she was raped.

“No DNA from any young man tested was found anywhere on or about this woman,” defense attorney Wade Smith said Monday.

Nifong appears to be grandstanding:

Nifong, who has said he doesn’t necessarily need DNA evidence to prosecute, was calmly defiant at Tuesday’s forum, attended by about 700 people on the campus of North Carolina Central University, the historically black university a few miles from Duke where the alleged victim is a student.

“The fact is that this case is proceeding the way a case should proceed,” Nifong said to applause from the crowd.

I mean really: Is a D.A. supposed to go out on stage to tell a cheering crowd, “never mind the evidence, the prosecution is going forward”? This is starting to sound like a lynching.

And Nifong’s logic seems to be a bit faulty:

“DNA results can often be helpful, but you know, I’ve been doing this a long time, and for most of the years I’ve been doing this we didn’t have DNA,” he said. “We had to deal with sexual assault cases the good old fashioned way. Witnesses got on the stand and told what happened to them.”

Yes, before DNA evidence technology was available, they had to do prosecutions other ways. But that doesn’t mean that now that we have that technology, if the DNA test comes out the wrong way, you can just ignore it. As I said before, DNA evidence cuts both ways. The woman claims she was beaten up and raped in a certain bathroom, which would have left blood, hair, or at least skin cells of hers in the bathroom. But there is no evidence of her DNA anywhere in the bathroom. She claims she struggled and clawed at the attackers with her fingernails, but there was no DNA from their skin under her fingernails. She claims she was raped by three men, for half an hour, vaginally, anally, and orally. Yet there is no semen, nor blood, nor skin cells, not hair from any of them, anywhere on or in her body. She was examined right after the alleged incident, in an emergency room, by a specialized forensic sexual assault nurse — someone specifically trained to collect DNA evidence in rape cases. If there was a rape, there would be evidence of it — and everything about the case indicates they would have found it if it were there.

But none of this matters. In fact, some people here are violating the principles they hold inviolable in other cases — what I call syllogistic hypocrisy:

“There’s an old saying that the absence of evidence is not necessarily evidence of absence,” said Peter Neufeld, co-founder and co-director of the Innocence Project, a nonprofit legal clinic.

But Neufeld bases his entire career at The Innocence Project on exonerating people — in his case, death-row inmates — on the basis of the absence of DNA evidence. As the project’s web site explains:

Most of our clients are poor, forgotten, and have used up all of their legal avenues for relief. The hope they all have is that biological evidence from their cases still exists and can be subjected to DNA testing. All Innocence Project clients go through an extensive screening process to determine whether or not DNA testing of evidence could prove their claims of innocence. Thousands currently await our evaluation of their cases.

DNA testing has been a major factor in changing the criminal justice system. It has provided scientific proof that our system convicts and sentences innocent people — and that wrongful convictions are not isolated or rare events. Most importantly, DNA testing has opened a window into wrongful convictions so that we may study the causes and propose remedies that may minimize the chances that more innocent people are convicted.

And they claim to have exonerated 175 people, including 14 sentenced to death. Indeed, the first goal in The Innocent Project’s mission statement is:

The Innocence Project’s mission:

  • Achieve the exoneration and release of factually innocent inmates through postconviction DNA testing

Oh wait, “postconviction.” So does that mean Neufeld wants the lacrosse players to be convicted first, before DNA evidence is considered? Maybe that wouldn’t even qualify them, since they are not thought to be “poor and forgotten.” (They go to Duke, an expensive school — so even if they are on scholarship I guess tehy are rich-by-association. And they aren’t forgotten; they’re in the news every day.)

As for Neufeld’s logic — that the absence of evidence is not necessarily evidence of absence,” that may be true in general, but in a case where the nature of the crime is to leave DNA evidence, and there isn’t any, that’s pretty persuasive “evidence of absence.” And in any case, “absence of evidence” is not “presence of evidence,” which is what Neufield seems to be implying.

Leave a Reply

Powered by WordPress