About the Duke Rape Case

A couple of things.  

For two reasons, I have not previously blogged about the situation. One, it’s not Alabama. Two, as a criminal defense attorney, I was shocked, just shocked, to hear that a politically motivated prosecutor hid evidence, lied, and used race in order to put another notch on his conviction belt. Amazed, really. I mean, that kind of thing never happens in this country.

“Oh, by the way, I was being sarcastic.”  This sort of thing happens every day. Only, as Radley Balko points out, no-one notices.

And that leads me to the first thing I want to say about the Duke case. I don’t care why this particular case ended up in the news, or who lined up on whose side; what I hope is that everyone will walk away thinking about how utterly important all of our due process rights are.

Few things make me as mad as hearing some dope use some version of the “criminals have more rights than victims” talking point. Yeah, people who are accused of crimes do have rights. Why? To prevent innocent people from going to jail. Where would these three guys be now if they did not have a right to a trial? Or to see the evidence against them? Or to questions their accusers?

In other words, what would have happened to them if they were tried, before, oh, say, a military commission in GTMO?

The next thing I want to say concerns one of the most important rights that ALL OF US have:”Three Cheers for Lawyers.”

That’s the title of this editorial by Randy Barnett in the WSJ yesterday. The context is the Duke case. Barnett points out that while all of us are concerned – correctly – about the “perfect storm” that created the situation, we ought to also thank the folks who rescued these three kids: Their lawyers.

The next time you hear a lawyer joke, maybe you’ll think of the lawyers who represented these three boys and it won’t seem so funny. You probably can’t picture their faces and don’t know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That’s because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients’ innocence.

These lawyers held the prosecutor’s feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor’s misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.

Barnett also makes a more general point about criminal defense lawyers:

Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

Crime is a serious thing, but so is taking away someone’s liberty and branding them as a criminal for life. As a criminal defense attorney, it’s my job to be an obstructionist; to make the costs of criminalization so high that it will only happen to those folks who truly deserve it.

My clients are usually guilty, but, because the ultimate issue is bigger than my client, if the state wants to put them in jail, the state is going to have to cross every “t” and dot every lower case “j.”  The ultimate issue is that it ought to be very difficult to throw people in jail. Making it hard for the state to criminalize people means guilty people will go free. But in my mind, that is much preferable to what would have happened to these Duke kids if there was no-one to force the state to follow the law.

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7 Comments on “About the Duke Rape Case”

  1. Old Prosecutor Says:

    As a former prosecutor and defense lawyer I ask – “Is it time to make District Attorney a nonelected position?”. Also I hope this Nifong idiot loses his law license – he has hurt every honest, hard working District Atty and Asst DA . There are those who seek to make sure justice is done.

  2. wheeler Says:

    “he has hurt every honest, hard working District Atty and Asst DA .”

    that’s one of the worst parts. i know one of the big reasons i enjoy criminal work as opposed to civil is that – at least in my experience – opposing counsel in criminal cases is almost always honest, professional and reasonable.

  3. Mark Says:

    I read a commentary somewhere (I think it was a syndicated op-ed in the Huntsville paper) that pointed out another aspect of the lasting damage caused by this case. Apparently, students at a predominantly black college believe that the Duke students got off because they were rich and white and their accuser was black. Thus Nifong, by his handling of the case, helped make even more Americans distrustful of the legal system.

  4. Kathy Says:

    And on the flip side, the DA’s publicity seeking and crappy investigation will make it harder for women who really have been raped to get justice. This case will be used as an excuse to believe that they’re making up their stories to get back at some poor innocent guys.

    These Duke students will never entirely get past the charges; there will always be those who believe they got away with something because they are white and well-off.

    Nifong should be ashamed of himself.

  5. Old Prosecutor Says:

    This is not a defense of Nifong – I think he should be disbarred. But as long as the District Attorney is an elected official should any of us be shocked that there are District Attorney’s who put getting re-elected ahead of justice?

  6. ALmod Says:

    Great post, wheeler!

    I’m also not a very big fan of the “criminals have more rights that victims” argument. It’s just not possible, and the people who make such arguments usually are upset that the accused has any rights at all. People just don’t consider that it may be a kid that screwed up and wants to turn his life around or that the person may not have screwed up at all and is being wrongfully accused.

    Kathy, you have stated my feelings about the case EXACTLY. It does in fact hurt the arguments of women everywhere who really have been violated. It hurts the black community as well by making their own arguments of being victims of violent crime seem less trustworthy. Someone will point to this case and say that the black community will accuse any white man of anything just to appease some vendetta.

    Old Prosecutor, you have an excellent point, and it’s the very same reason why I oppose election of judges as well.


  7. […] course politics will always play a role in prosecutions, but – as the Duke rape case showed us all – that is a BAD thing. It’s something that responsible, professional, reasonable, ethical […]


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