Legal experts increasingly agree; the prosecution of the three affluent white students at Duke University accused of raping a working-class and local black woman is not supported by evidence or law.

Instead, it is driven by the political ambitions of the local District Attorney in Durham, North Carolina who has exploited racial tensions.

Last week, the D.A. in question Mike Nifong won the election that has been so intimately linked to the ‘rape’ case. He still faces two basic alternatives: dismiss the case or go to trial. What will happen now that he has won a full term?

Based on recent headlines that have battered Nifong’s case, people might assume ‘dismissal.’ The headlines include:

"Durham DA Says He Still Hasn't Interviewed Alleged Rape Victim."

Despite his many pre-indictment statements of "I believe the victim," as of late October, Nifong had not interviewed her on the details.

"Second Exotic Dancer…Says Alleged Victim Was 'Fine'."

Nifong’s only witness and the backbone of his prosecution has changed her story…again. Kim Roberts now claims the accuser was not raped.

"Accuser in Duke lacrosse case wanted money, man says."

A security manager at the strip club where the accuser worked says that, after the alleged incident, she bragged about getting money from "the white boys."

These are sensational headlines but they are unlikely to influence Nifong’s decision.


Because they don’t change anything fundamental about the case. The absence of an interview with the accuser is just one more in a series of prosecutorial missteps or misconduct by Nifong. Kim Roberts has always been an unreliable witness whose testimony may shift tomorrow. The co-worker’s 11th hour testimony may not be true and ‘proves’ nothing.

The fundamentals of the case have remained the same for months.

They include exculpatory DNA tests, a solid alibi for one defendant, a string of contradictions from the accuser, an irredeemably tainted police ID and a witness who benefits the defense.

And, yet, there are at least five reasons why a trial may well proceed whether or not the accused are clearly innocent.

The first reason: Nifong owes his slim election victory to a base of black voters who clamor for a trial.

In the predominantly black Precinct 42, for example, all but 18 votes went to Nifong. Both the extremely powerful Durham Committee on the Affairs of Black People and the People's Alliance endorsed Nifong's candidacy; both want a trial.

Durham’s population is approximately 44 percent black and turn out in black districts was high. Nevertheless, Nifong received only 49 percent of the popular vote. Write-in Republican candidate Steve Monks received 12 percent. County Commissioner Lewis Cheek garnered 39 percent despite a pledge not to accept the job if Monks also ran. Thus, Nifong did not swing a majority vote even though one of his opponents was not on the ballot and the second one ‘refused to serve’.

Nifong’s overall support in Durham is weak. His political strength is specifically tied to a promise to prosecute.

The second reason: Local politicians seem utterly uninterested in pressing for dismissal. Governor Mike Easley, who appointed Nifong, is a Democrat and relies on the same voter bloc; Easley will be up for election in a few years.

Durham Mayor Bill Bell has commented, "By and large, people want it [the Duke rape case] to be decided in court." Local authorities lack the political will to call for dismissal. Indeed, they are likely to press in the other direction.

The third reason: A theme is emerging from the local news accounts I’m reading. It is well captured in a commentary by Ruth Sheehan, a staff writer for the local News and Observer.

Sheehan writes, "Nifong has become a symbol of Durham to the nation. And in Durham, as in most dysfunctional families, it may be OK to holler and throw lamps at one another within the family, but let an outsider criticize and, honey, watch out."

Perversely, national outrage over Duke may have hardened local determination to not be intimidated by outsiders.

The fourth reason: There has been wide-spread speculation that Nifong intends to dismiss the case only after it drops off the public radar. This is unlikely to happen if only because of outraged bloggers who will persist. Nifong is far less likely to back down if a spotlight still shines on him.

The fifth reason: Nifong has one chance to win at trial. In June, North Carolina Central law professor Irving Joyner told Sports Illustrated "[Nifong] still has a viable shot at victory before a jury in Durham."

The key words are "in Durham." If jury selection there reflects the same base that elected Nifong, then it is possible for the young men to be convicted on one of more of three pending felony charges. ‘Duke’ is a textbook case of why a change of venue can be essential to justice.

As it stands, a trial is scheduled in Durham for Spring of 2007.

I can only hope that this article is soon rendered irrelevant by a judge who gives Nifong the face-saving ‘out’ of granting a motion to dismiss perhaps one based on the flawed photo ID.

Otherwise, the treatment of these young men will continue to cross the line separating prosecution from persecution.

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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