Accused Denied Due Process in Duke Lacrosse Case?

Tuesday , September 19, 2006

By Wendy McElroy


Do the principles of justice still operate in American courtrooms?

The Duke Lacrosse case, in which three white male students are accused of raping a black woman last March, is also a case about race, class conflict and political ambition. For me, the case has become a litmus test for the American justice system.

I believe the accused are blatantly innocent and that the prosecuting District Attorney Mike Nifong is acting with willful disregard for both the evidence in the case and the Constitutional rights of the accused. In this case, I believe the legal system is the enemy of justice...and nakedly so.

How naked? Consider one of the suspects, Reade Seligmann. He is scheduled to be tried on three felony charges despite overwhelming evidence of his innocence: exculpatory DNA tests, a corroborated alibi, a string of contradictory statements by his accuser and an irredeemably tainted I.D.

The assumption that a defendant is 'innocent until proven guilty' has been reversed. Seligmann is assumed to be guilty. But more than this. It is as though Seligmann is not allowed to prove his innocence no matter how much evidence he produces.

The stakes are high. Even if Seligmann is ultimately declared 'not guilty', his life may be ruined by a senseless ordeal. During the ordeal, his life is a nightmare.

The stakes are high for society as well. How did a legal system based on the presumption of innocence come to this juncture?

A partial explanation lies in an idea that has gained in popularity over the last two decades: the rights of a victim are in conflict with those of the accused.

For example, decades ago, a rape victim was not merely questioned but also had her character 'put on trial' by the legal system. A backlash finally created a more respectful approach to victims.

But it is in the nature of pendulums to swing too far. A sensitivity toward victims became a demand that some accusations be simply and immediately believed: for example, accusations of sexual assault. 'Women don't lie about rape,' became a standard refrain. This placed the presumption of guilt upon anyone accused.

But society in general is best served when high standards of evidence and due process are preserved. Only then is the court seen to be just, and justice threatens only the guilty. Everyone else benefits.

The modern tendency to view an accused's due process (e.g. the presumption of innocence) as antagonistic to an accuser has obscured the reason due process arose in the first place.

In America, the set of rights known as due process was established as 'law of the land' in the Bill of Rights: the first ten amendments to the Constitution. Amendments IV through VIII offer prohibitions against such practices as double jeopardy. They also spell out specific guarantees such as to "a speedy… trial" and a right "to be confronted with the witnesses."

The purpose of spelling out due process, however, was not primarily to protect a defendant against his or her accuser. Their inclusion in the Constitution was meant to protect defendants against the power of an abusive court — that is, against an abuse of government.

The Preamble to the Bill of Rights is often omitted from renditions of that document. It reads, "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added [the Bill of Rights]: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

In other words, various ratifying conventions expressed concern over whether the new government would abuse its power and become tyrannical. The amendments that constitute the Bill of Rights were adopted as specific protections against such abuse. They were restrictions on the power government could wield over individuals.

Thus, the Fourth Amendment spoke directly to what government could and could not do to individuals. It stated, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…"

In its original intent, therefore, due process was not meant to protect an accused like Seligmann from his accuser so much as to protect him from tyrannical and abusive officials. I believe both adjectives apply to Nifong from whom Seligmann deserves constitutional protection.

Instead, a trial is likely to occur. If it does, the trial will undermine what the Preamble to the Bill of Rights declares to be the specific purpose of that document: to extend "the ground of public confidence in the Government."

As long as Nifong is the face of government, I find no reason for public confidence.

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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