The D.A.'s Admitted Failure To Personally Question The Accuser In The Duke Rape Scandal: Why, At Trial, It May Be A Boon To The Defense

By JONNA SPILBOR

Tuesday, Oct. 31, 2006

Last April, notoriously, three former Duke University lacrosse players were indicted. The indictment charged them with brutally raping a stripper during an off-campus team party. I've covered developments in the case in a series of columns for this site - on April 14, April 28, May 19, and June 30.

In these columns, I've argued that the publicly-available evidence relating to the case not only fails to support the prosecution's case, but severely undermines it. I've concluded, accordingly, that Durham D.A. Mike Nifong should drop the case.

In this column, I'll briefly recap that evidence, and consider the most recent development in the case: The October 27 revelation, during a court hearing, that D.A. Nifong has yet even to interview the accuser herself about the facts of the case!

Voters assessing Nifong on November 7 - when he is up for re-election - should surely consider this important new information carefully. Questions had already been raised about Nifong's judgment in going forward with this case; now, questions about his basic competence are also arising.

Importantly, you don't have to be pro-defense here to be troubled about Nifong. Far from it. Even supposing the accuser is somehow telling the truth (a supposition the publicly-available evidence makes very unlikely), the D.A. has done her a disservice - for, as I will explain, his failure to interview her about the facts will provide powerful fodder for the defense at trial.

The Evidence So Far: Serious Discrepancies with the Accuser's Claims

From the very start, the procedure by which the defendants were identified by the accuser was unconstitutional: The photos displayed to the accuser were only of Duke lacrosse players. Instead, the photos of players plainly should have been mixed with many photos of same-age, same-race males who were strangers to the accuser.

After the tainted identification, things got even dicier: DNA evidence failed to inculpate the two defendants the faulty identification process had initially yielded, or the third defendant added later. Digital photos taken at a party established a timeline inconsistent with the accuser's story. And two of the three defendants offered objectively-verifiable alibi evidence. Meanwhile, even the accuser's fellow stripper proclaimed the accusations a "crock." And as I detailed in my May 19 column, further DNA evidence also proved unconvincing.

So where was the prosecution's case? It had to lie with the accuser and her testimony. Maybe she could resolve the seeming discrepancies in the evidence?

Or, maybe not - for it turned out that her own various statements suffered from serious discrepancies, too. She had made a series of conflicting statements to police and medical personnel. And a police report indicated the accuser was "passed out drunk" and in "no distress" in the minutes following the time she said the attack had occurred.

The New Revelation: No Statements By the Accuser to the D.A.

Finally, just when it appeared the case against these three young men could not possibly get any weaker, it did. As noted above, the D.A. admitted - in the face of yet another defense request to obtain all statements made by the accuser to the D.A. - that no such statements exist.

According to the D.A, the only case-related conversation he's had with the accuser was a quick telephone conversation regarding her use of the drug "Ecstasy" on the night of the alleged rape. According to Nifong, "She said, 'I've never taken Ecstasy.' That was the extent of the conversation because that's all I had to know." Nifong continued, "I understand the answer may not be the answer they want but it's the true answer. That's all I can give [the defense]."

Indeed, Nifong told the Associated Press, "I've had conversations with [the accuser] about how she's doing. I've had conversations with [the accuser] about her seeing her kids, [but] I haven't talked with her about the facts of that night. We're not at that stage yet."

Why the Failure to Interview the Accuser Is Very Troubling

As an experienced criminal defense attorney, I can tell you that this failure to interview the accuser is rare, striking, and disturbing. It means that the D.A. failed to personally assess the accuser's credibility before filing charges against the defendant, or presenting evidence to the grand jury to obtain the indictments in the case.

A District Attorney has a duty to justice. The saying is that "the government wins when justice is done," not when it gets a "Guilty" verdict. But this D.A. failed to make sure he was, in fact, serving justice by looking his accuser in the eye, listening to her story, and assessing her credibility for himself, just as he knew a jury someday would do.

That story is extremely important here. The accuser, in her statements to police, maintains that, besides the defendants themselves, she herself was the only direct witness to the rape - which she says took place in a small bathroom, away from the rest of the party.

That means witness testimony - her testimony - will be crucial here - all the more so, because the forensic evidence seems, thus far, to be utterly lacking. The DNA evidence, as noted above, simply hasn't held up.

The Accuser's Trauma Provides No Grounds For a Six-Month Delay of the Interview

Nifong has said that the accuser was traumatized at the time he first tried to interview her. But that's no excuse for this conduct.

Nifong has said that, even in innocuous conversations, the accuser couldn't look him in the eye, and appeared on the verge of tears. And he's said that in a meeting on April 11 -- - about a week before he gave the case to the grand jury -- he and an investigator avoided discussing details of the case with the accuser because she was "too traumatized." (Attorneys bring investigators along to such meetings in part so that, if disputes arise as to what was said, the investigator - not the attorney - can become a witness in the case.)

(This raises the issue of whether the unprepared accuser appeared before the grand jury. If she didn't, and it turns out she's fabricating, it may be hard to punish her, since she hasn't yet testified under oath. And it is possible she didn't: In North Carolina, as in the federal system, a grand jury can indict on hearsay.)

But over six months have passed since April 11. Why didn't the D.A. and his investigator interview the accuser in the interim between then and now?

Let's suppose she's still too traumatized even to talk to two sympathetic people about the rape. (Remember, we're not necessarily talking about her being along with two men: The D.A. could always opt for a female investigator to accompany him, and, if necessary, could opt to delegate the interview to a female Assistant District Attorney as well.) Then the hard truth is that she may have even more difficulty in ever getting on the stand in front of a whole courtroom and jury - and that's a fact the D.A. ought to take into consideration as he decides whether, and how, to go forward in the case.

In sum, the D.A. needs to know, about the accuser, what an attorney must know about any potential witness: how she will hold up under the stress of in-court examination. Suppose that after talking to her, he still believes her story but sees that she can't bear to take the stand, or won't do well if she does. He may decide, then, that a plea may serve her interests better than the "Not Guilty" verdict that would inevitably result from her failure to testify.

How the Defense May Use the Prosecution's Delay to Its Advantage

For justice to be done, recollections must be given when the accuser's memory is fresh - and jurors know this. For this reason, the D.A.'s six-months-and-counting delay in interviewing the accuser will provide strong ammunition for the defense.

What's really going on here? One can only speculate, but it's no secret Mike Nifong is up for re-election in a week, nor is it a secret that he's made this case a platform for him to speak to the press. And one thing his failure to interview the accuser has accomplished - even as it has hurt the prosecution's case - is that it has kept that platform alive for this long.


Jonna M. Spilbor is an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also 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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