Prosecutor Finally Gets it Right in Duke Rape Case


This is how the system is supposed to work. It’s not supposed to take so long and require the actual dismissal of an indictment instead of just the decision not to seek one in the first place.

But somebody finally got the Duke case right, by doing it by the book, reviewing all the evidence, weighing the significance of the absence of a DNA match, interviewing the key witnesses and concluding that there was no case.

I already gave O’Reilly credit for calling for the dismissal of charges some months ago, and now it’s finally happened. The appropriate anti-climax.

This is how it works when people aren’t playing politics with their prosecutorial discretion, charging unpopular defendants with particularly disturbing crimes for prosecution.

This is how responsible prosecutors use their power and why it matters so much that they not do it with one eye on their political future.

The easy answer to what went wrong in the Duke case is that the prosecutor was worried about his political strength in the black community and sought to bolster it by prosecuting the white, wealthy Duke players for attacking the black stripper they had hired to dance for them.

The only problem was there was no evidence other than her ever-changing account that these young men attacked her. The photo identification procedure was unduly suggestive; DNA evidence linked the woman to other men, but not the defendants; and the players themselves produced evidence undercutting the prosecution’s timeline.

It was enough to convince the North Carolina attorney general not only that he didn’t have a strong enough case to prosecute but that the young men were, in fact, innocent of the crimes with which they were charged.

“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," the attorney general announced.

Describing the indictment as the product of a "tragic rush to accuse and a failure to verify serious allegations," the attorney general said that they had nonetheless concluded that no charges should be brought against the accuser.

“[She] may actually believe” the various accounts she told of her victimization, the prosecutor said. That means that while she lied, she may not have done so knowingly and intentionally, which is the usual legal standard for guilt. If she’s that messed up, and she may be, by this point she needs help — not the ordeal of a trial in which she bears the ire that Durham County District Attorney Mike Nifong deserves.

Nifong himself may be in the same boat, mentally speaking, when it comes to his lying, but he isn’t likely to get off as easily, nor should he. He was subject to special rules governing the conduct of officers of the court.

Cynics will argue that Nifong knew from the start that there was no rape, but I don’t buy that. People tend to believe what they want to believe. The mistake prosecutors make is not consciously lying (not very often, anyway) but believing too quickly in the guilt of those they want to prosecute.

By rushing to the convenient judgment, acting like a politician who sees a voting issue instead of a prosecutor who needs to see evidence of guilt, Nifong abused the enormous power he has over people's lives and reputations, over their liberty and their dignity.

He did no favor to the woman; quite the contrary. An obviously disturbed woman who has been through an undeniably upsetting experience needs a dose of reality, not the avalanche of negative publicity she got and will continue to get.

The lesson of the Duke case is not really about rape or race, although that is certainly what made the story so absorbing for so many people. The lesson is about prosecutors, the power we entrust them and what happens when they use it badly.

It should be a reminder, as the attorney general prepares to testify on the firings of seven U.S. attorneys, of just why it is so important to fight to keep politics out of prosecutorial decision-making.

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Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”

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, in addition to writing the “Blue Streak” column for

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