Duke lacrosse case crumbled in early going

Updated: April 12, 2007, 9:33 AM ET
By Roger Cossack | ESPN.com

We might never know why it took North Carolina authorities so long to dismiss all charges in the Duke lacrosse rape case that was obviously flawed and never could have resulted in a conviction.

But we will always remember that this case, which was dropped Wednesday, caused all of us to spend a little time contemplating flaws that were exposed in our criminal justice system and forced us to consider what has been revealed about race in America.

This case represented a perfect storm of race, privilege, status and wealth that resulted in a disaster for the prosecution, Duke University, the lacrosse players and the American criminal justice system.

The problems with district attorney Mike Nifong's case arose immediately after allegations that an African-American female dancer and student at North Carolina Central University was raped and sodomized at a now-infamous party at a house near the Duke campus on March 13, 2006. The police took the woman to a hospital where she was seen by a health professional who concluded she had injuries consistent with forced sex. The accused Duke lacrosse players, who are white, publicly denied the allegations; one of them had an alibi placing him at an ATM machine far from the party when the assault allegedly occurred.

Mike Nifong
Gerry Broome/AP PhotoDurham DA Mike Nifong has come under fire for the way he handled the Duke lacrosse case.
Nifong, who was running for re-election, faced a no-win decision. If he had waited for additional physical evidence before charging anyone, he would have been subject to criticism for showing favoritism. And after the players were released, some people complained that if these young men were black they would have stayed in jail without bail.

Still, it was almost one year ago, on April 10, 2006, when defense attorneys said DNA tests failed to connect any of the players to the accuser.

Is it too much to ask a prosecutor to wait for DNA results before charging players, especially when so much is at stake for so many?

It became apparent that Nifong's case was crumbling and that he had very little chance at a conviction. This is when a good prosecutor would have dropped the case. From a legal standpoint, if Nifong had dropped the charges he would have lost nothing. If more incriminating evidence was discovered later, he could have refiled the charges.

Prosecutors are to seek the truth, and that does not mean a conviction every time. But Nifong made a fatal mistake. He seemed to fall in love with his case. He was so committed to winning that he had tunnel vision, and no matter how bad it got, he was going ahead with his trial. Instead of making the difficult decision to drop the case, instead of risking the public scrutiny over that, he chose instead to pursue a jury trial. Leaving it to others to decide what he could have done on his own was, in essence, a cowardly way out.

And now Nifong, who withdrew from the case in January, faces ethics charges filed by the North Carolina bar, which accuses him of making misleading and inflammatory statements connected to the case. He could face disbarment.

Some of the Duke athletes had a reputation of outrageous and petty misbehavior such as public urination and loud parties. Because the university owned the house where some of the lacrosse players lived, it might have been able to address those problems before the night of the March party, but didn't. The message seemed to be that while all students are equal, outstanding athletes, at least lacrosse players, are a little more equal.

Duke's Lacrosse Players
Chuck Burton/AP PhotoFrom left, David Evans, Collin Finnerty and Reade Seligmann spoke with the media after the charges against them were dropped Wednesday.
Playing college sports is not a right, it's a privilege. The university, within limits, can decide who plays and who doesn't. Duke could have waited before banishing the accused players from campus and canceling the lacrosse season. Did the university have a legal responsibility to act more reasonably? While I'm sure university officials wish they did, I don't think a lawsuit by the players against them will succeed. It's not Duke's fault the players and their families spent millions of dollars in legal fees. At least Duke reinstated the players a few months ago when the obvious weakness of the prosecution's case simply became impossible to ignore.

While lawsuits can always be filed, I don't think the lacrosse players would have any chance of success if they decide to sue Duke, even though I believe Duke acted hastily in canceling the season and suspending the accused students.

There can be no lawsuit against Nifong. He's a public official and can't be sued for his actions or decisions, no matter how wrong they appear. And there is good reason for that. If public officials could be sued, there would always be a disgruntled or unhappy citizen who would sue them for what they did on the job. Not only would no one want to be that kind of target, no one would want those jobs.

So what should we take from this?

The criminal justice system isn't perfect and rests upon the good judgment of those who enforce the law.

If you are unjustly accused and even found not guilty, there is no remedy that gets your money or your reputation back.

And finally, let us never, never forget the importance of the presumption of innocence in this country -- that no one is considered guilty, beyond a reasonable doubt, until convicted by a court of law.

Roger Cossack is ESPN's legal analyst.