Closing The Door On the Duke Lacrosse Rape Claims: Why the Accuser Should Be Prosecuted, and The State Should Revamp the Way It Handles False Crime Reports

By JONNA SPILBOR

Monday, Apr. 16, 2007

On April 11, nearly a year after three Duke lacrosse players were charged with rape, sexual assault, and kidnapping, North Carolina Attorney General Roy Cooper announced that the charges were, in a word, a crock. After much harsh criticism of the prosecution and prosecutor - including a series of columns I wrote for this site -- the case was finally dismissed.

The decision, though late in coming, was exactly the right one. Moreover, not only did the Attorney General do the right thing, he also courageously refused to make excuses for what he admitted was a failure by Durham's District Attorney Mike Nifong to perform his duties properly.

However, Attorney General Cooper has not yet addressed the question that still hangs in the air: What is to become of the accuser, Crystal Gail Mangum?

In this column, I'll argue that not only should Mangum be prosecuted to the fullest extent, but this case should serve as the impetus for a revamping of the way prosecutors handle those who falsely report rape and related sex crimes.

A Quick Chronology of the Duke Case

As readers may well recall, this case began when, on March 13, 2006, Crystal Gail Mangum, a 27-year-old woman, single-handedly changed the course of three young men's lives, probably forever.

That day, Mangum told a horrific story to authorities, claiming she had suffered a heinous rape, which included sadistic threats of sodomy. Because the men she accused were white and privileged - lacrosse players from nearby Duke University -- and Mangum was African-American, the case took on a political and racial aspect as well, dividing the community.

It was later revealed that Mangum gave different and wildly inconsistent accounts of what she said had happened. There were also other holes in the case that one could drive a truck through - as I explained in prior columns.

Nevertheless, the three students the accuser finally identified (after several highly leading and unconstitutional photo lineups) were arrested and charged with rape, sexual assault and kidnapping.

The true culprit here? A power-hungry prosecutor, Mike Nifong, who was all too willing to overlook the glaring inconsistencies in Mangum's various stories, as well as the other indications, including DNA evidence, that Mangum was lying - or, at the very minimum, that there was not only reasonable, but profound, doubt about the defendant's guilt.

Now, Nifong is finally facing some consequences for his actions: He was charged with several ethics violations by the NC State Bar relating to his handling of the matter -- among them, withholding critical evidence from the defense. These serious charges remain pending - and could lead to his disbarment. Last Friday, April 13, a disciplinary committee rejected a request Friday to dismiss the charges.

But what about Mangum? Will she get off scot-free, despite her lies?

The Attorney General's Statement: A Clear Vindication of the Defendants

So far, Attorney General Cooper seems to have done everything right. First, his office looked carefully into the case for three months. Then, on April 11, as noted above, Cooper announced that all remaining charges against defendants Reade Seligmann, Collin Finnerty and David Evans were to be dismissed. Permanently.

But Cooper, in my view, needed to do a lot more than this: He also needed to tell the nation the defendants were innocent; that the accuser had lied; and that the D.A. had acted terribly. Given the egregious facts of this case, the standard prosecutorial lingo accompanying a dismissal -- "We are unable to prove the charges"--simply wouldn't be enough.

Fortunately, Cooper understood this. He stated that "Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges." (Emphasis added).

Moreover, Cooper laid the blame directly at D.A. Nifong's door, saying "We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations….

[W]ith the weight of the state behind him, the Durham district attorney pushed forward unchecked. There were many points in the case where caution would have served justice better than bravado. Later, Cooper also said, "This case shows the enormous consequences of overreaching by a prosecutor."

This was historic. Surely, such a candid government admission of D.A. misconduct, by a fellow prosecutor at that, will serve to restore some faith in a justice system that had seemed to go terribly awry.

Charges of False Reporting Should Be Brought Against the Accuser

Unfortunately, however, Cooper concluded his press conference without ever discussing whether or not there were to be consequences against the accuser herself. Indeed, he didn't even mention the accuser's name at the press conference - even though his own logic showed there was no longer any reason to protect it.

What Cooper said plainly implied that the accuser was guilty of lying to the authorities, and concocting a story about the three players. After all, if the players are innocent - as Cooper clearly stated was the case -- then it follows that the woman who accused is guilty: guilty of lying to authorities about who raped her.

Based on the evidence made public in this case, moreover, it seems overwhelmingly likely that she also lied about whether any rape ever occurred. This is no case of mistaken identity; the accuser's story of what happened that night had blatant inconsistencies in many other areas as well. That's why Attorney General Cooper also noted that "we have no credible evidence that an attack occurred in that house that night."

Falsely reporting rape - or any crime - is itself a crime. Typically, filing a false report is merely a misdemeanor (an inadequate consequence for falsely reporting any crime, in my opinion). Yet even a misdemeanor prosecution here would at least send a message of some accountability - and might actually bring to public attention the under-punishment of false reporting, so that state statutes might be changed.

The Accuser Must Be Punished, And the System Needs to Be Examined Too

In addition to directing that charges be brought against Mangum, Attorney General Cooper also had another proposal. He proposed "a law that the North Carolina Supreme Court have the authority to remove a case from a prosecutor in limited circumstances. This would give the courts a new tool to deal with a prosecutor who needs to step away from a case where justice demands."

Fair enough. But there can be no justice here unless charges are also brought against the accuser.

It's not just about punishing one person for a very serious misdeed - though that is surely important, given the devastating impact on the three defendant's lives. It's also about the way her lies will wrongly be used by some to question the veracity of genuine victims of rape. Protecting Crystal Mangum isn't protecting a victim; it's making every future victim more vulnerable, in the prosecutor's office and in the courtroom, to being wrongly disbelieved.

Thus, Crystal Mangum not only wronged the three defendants, but also all the women in this world who ever have been truly victimized, or who, sadly but unavoidably, one day will be. These are the unseen victims of Duke.

The law already allows those who falsely report crimes to be punished. I can't imagine a better case for invoking it than this one. Moreover, because - as Attorney General Cooper noted - this case involves systemic problems, not just one rogue prosecutor, it's time for an investigation.

Why didn't someone working with D.A. Nifong resign over it? Why did a DNA expert accept D.A. Nifong's instruction to provide a partial and misleading DNA report - one that not only reflected no DNA match with the defendants, but also reflected DNA matches with other men, matches kept secret by Nifong? More generally, why was a false report believed so long in the D.A.'s office, despite numerous indications it was false?

Until we have answers to these questions, we will not have truly closed the Duke lacrosse case - and we will have no assurance that this kind of travesty won't repeat itself, in North Carolina or elsewhere.


Jonna M. Spilbor is an attorney and legal analyst on "Kelly's Court," airing daily on the Fox News Channel. Jonna is also the host of a call-in radio show Thursdays on WPDH FM, and is a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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