Duke Prosecutor's Fourth Victim

There are four victims of District Attorney Mike Nifong’s twisted tactics in the Duke Lacrosse case.

The first three, of course, are the young men who never would have been charged with anything had Nifong adhered to the standard practices in his own office. With luck, they will ultimately be exonerated, and be able to move on with their lives, albeit after having endured a chapter in hell.

The fourth victim is unlikely to be so lucky; she will not be exonerated at trial, and she will not be able to move on with her life. She will be destroyed by this case, and while she is partly to blame for that herself, the other part of the blame rests squarely on Mike Nifong’s shoulders.

The woman is a liar. That is the English translation of the latest round of maneuvers, in which the prosecution dismissed the rape charges because the woman could no longer say, as she once did, that she had intercourse with three men at the party. In other words, she lied when she said she did.

The challenge for defense attorneys, in dealing with a woman who can’t remember whether she had intercourse with three men on a day when she must have had it with two others (to judge from the DNA on her body and underwear), is not to hit so hard that you provoke sympathy.

If she can’t remember now, how come she was so sure then?

Actually, she wasn’t sure, she was just making it up, she will be an admitted liar of the worst sort the moment she opens her mouth. She lied about rape. Dropping the rape charge does not remove the statements she made claiming rape from the case. Rape shield laws do not protect her when other contemporaneous sexual acts might explain the physical evidence of sexual contact and of bruising.

The defense attorneys will obliterate her, permanently painting her as the worst sort of nut and slut. We will not hate the boys, we will hate her. The defendants have no choice: their freedom depends on destroying her credibility.

Mike Nifong does have a choice. He doesn’t have to build a case on someone who shouldn’t be carrying it. It’s his job to recognize that and act accordingly-- for her sake, and the community’s, as well as the defendants.

In the bad old days, before rape laws were reformed, a number of jurisdictions enforced a special corroboration rule in rape cases that provided that a case could not go to the jury on the uncorroborated testimony of the victim. The idea behind the rule was, as Sir Matthew Hale famously warned, that rape is a crime “easy to charge but hard to prove, and harder still to disprove” even by one who is innocent.

So special rules were needed, or so it was thought, to protect men against acts of spite so easily launched and so difficult to disprove.

Every jurisdiction that had corroboration requirements ultimately got rid of them, as a formal matter, but informally, of course it matters whether there is corroborating evidence.

No study has ever found that women lie about rape any more often than men (and women) do about other crimes, but that doesn’t mean that every complaint belongs in a criminal trial. The job of the prosecutor, especially because of the special stigma that comes simply with the charge of rape, is to screen out those cases that should not, or cannot, be won, and not bring them in the first place.

The complaint filed by the North Carolina bar against the prosecutor this week recounts many of his early statements in the case, including his certainty that a rape had taken place, at a time when he had no reason for any such certainty.

I’m no fan of punishing lawyers for what they say to the media, even when it’s the prosecutor overstepping. What troubles me about NIfong’s comments is less that he said them to the media than that he believed them himself.

He had no reason ever to be certain of her story, given what we now know. There were obvious questions about her condition that night; obvious issues about her credibility; and an utter failure to corroborate the key element of her story with DNA tests. And that doesn’t even begin to address the problems with her identification of the defendants, who didn’t match her initial descriptions and were selected from an array composed only of team members, protecting her against making the mistake of choosing someone who wasn’t there.

Not to mention the alibis of the boys she did select. This was a train wreck waiting to happen from the get-go.

Who did he think he was helping by ignoring the obvious?

Just exactly who did Mike Nifong think he was doing a favor by pushing forward a case with an alleged victim who, the minute she spoke, would inevitably be massacred as a lying slut?

Her? Her family? Her community? So that later there would be pressure to charge her for lying? Did he really think he was doing her any favors?

It’s the prosecutor’s job to avoid this kind of mess, not make it. Maybe all Mike Nifong ever cared about was getting elected, no matter how many victims he created. For all his claims to be standing up for the woman in this case, he in fact was doing just the opposite.

If he felt sorry for her, he should have gotten help for her, not given her the one-way ticket to hell which this prosecution is certain to be. With friends like Mike Nifong, who needs enemies?

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Estrich's books include the just published "Soulless," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.

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