Duke prosecutor should stop pursuing flawed case
There was a time when it would have been proper for Durham, N.C., Prosecutor Mike Nifong to step aside in the prosecution of three Duke University lacrosse players accused of rape and turn the case over to a special prosecutor.
That time was last spring, when serious questions were already being raised about whether Nifong's dogged pursuit of the case was attributable to zealous prosecution or blatant politics.
Now, there appears to be only one proper response by Nifong's office, and that is a dismissal of all charges against the three defendants, Reade Seligmann, Collin Finnerty and David Evans.
Whatever case Nifong may have had -- and it now appears there was none -- has evaporated. Incredibly, it turns out that Nifong's office did not interview the accuser for months. All of Nifong's public assertions of guilt against the three athletes were based on second- or third-hand information. And those were made while Nifong was seeking re-election in a close race.
And the accuser, who at various times told police and medical personnel that she had been raped by three men or as many as 20 men and violated three different ways, now says she is no longer certain that she was raped.
This case exploded in the national media in April. It had all the elements guaranteed to get attention. The victim was a young black woman, a stripper and a student at North Carolina Central University.
The suspects were described as products of privilege -- white athletes at Duke, one of the nation's most prestigious schools.
Nifong's public comments helped enflame the Durham black community and some segments of the Duke student body, even though the accused athletes had willingly given statements, volunteered to take lie detector tests and provided DNA samples.
Subsequent tests, which Nifong withheld from the defense, showed that genetic material from more than one man was found on the person and clothing of the accuser, but that none of it matched any of the Duke students.
Two weeks ago, Nifong voluntarily withdrew the rape charges, but he intends to pursue felony counts of kidnapping and sexual assault.
"Prosecutors are not supposed to be bringing and continuing cases unless they have a good chance of winning, & quot; John Banzhaf, a professor at George Washington University Law School, told the Associated Press. "He [Nifong] has to prove the case beyond a reasonable doubt. Unless he's got about 10 aces up his [sleeve], in my judgment there's no way he could satisfy that criteria. & quot;
That is as concise and as convincing an argument as can be made for Nifong to drop the charges. At this point, his witness has no chance of surviving cross-examination with her credibility intact.
Even the university, which canceled the lacrosse season, forced the resignation of the team coach and suspended two of the students (the third had graduated) has now acknowledged it overreacted. It has invited the two sophomores to return as students in good standing with the spring semester.
There will be a hearing Feb. 5 at which time the photo line-up presented to the accuser will be challenged by the defense as improper. If the judge agrees and throws out the identifications of the three students, Nifong will have one last chance to dismiss the charges and save some face. He should jump at it.
Besides, he's going to be busy in coming months defending himself against ethics charges brought by the North Carolina bar for his mishandling of the case. Punishment could range from admonition to disbarment -- which suggests there may yet be a measure of justice that comes from this case.