John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
The Duke Lacrosse Rape Case
06-30-06
The Duke Rape Case:
Prime Time Talk Show Fodder Illustrates Fundamental Problems with Grand Jury System Controlled by Politically Driven, Elected Prosecutors.
Since March the national news and news oriented talk shows have continued to focus on the infamous Duke Rape case, highlighting every twist and turn of this latest sex case to be tried in the press.
The normally tough on crime and hang’em high republican, conservative commentators have fallen in almost completely behind the accused Duke lacrosse players and the defense team. In the opposite corner, the left wing, typically civil rights, reasonable doubt types are pleading for the rights of the accused and demanding that the case be tried in court not by the press.
With the lead prosecutor in this case being a democrat, it is not surprising that his most vicious critics are republicans, and in an almost pavlovian response in opposition his supporters are mostly democrats. What is surprising is to see the thorough investigation by the free press, which in fact has illustrated the compelling reasoning behind the Founding Fathers of this Country demands included in the Bill of Rights which guarantee a Free press to protect our citizens from an over whelming government and its power to prosecute its citizens at will. This case also provides a real time modern reminder of the reasoning behind the 5th and 6th Amendments to our Constitution which provide many of the traditional protections afforded the accused in criminal prosecutions. Finally, it gives full credit to the bedrock principal at the foundation of our criminal justice system that all accused, no matter how heinous and repulsive, be “presumed innocent until proven guilty.” The free press is working in full force and hopefully will prevent an injustice in this case, whatever that might be.
In the debate of the Duke case, much has been said about prosecutorial ethics and a prosecutor’s role in the criminal justice system. Many have criticized Michael Nifong, the Durham County prosecutor who publicly prosecuted and condemned the Duke Lacrosse Team immediately upon the accuser’s allegations of rape. The timing of this case prior to a contested primary election has led to charges that the prosecution is politically motivated in an apparent attempt to pander to a segment of his electoral base. Others have argued he has committed prosecutorial misconduct for making prejudicial statements in the press which could only have served to prejudice the defendants in this case and heighten the public’s condemnation of the accused. Most serious to Mr. Nifong, and trust given to our criminal justice system, some have charged that Mr. Nifong violated the most basic tenet of prosecutorial ethics and prosecuted individuals for whom he lacked sufficient evidenced to believe a crime had in fact been committed and that he did so for no reason other than personal gain.
From countless news reports, statements from the lawyers on both sides and court filings, it appears that these young men are in fact innocent, or, at the very least, that more than reasonable doubt exist as to the government’s charge of rape. It seems that the only significant evidence to which the prosecutors now clings is the sole allegation of a discredited stripper, who has made at least six inconsistent statements regarding the facts of the case and was obviously intoxicated at the time of the incident. Even her exotic entertainment colleague initially called the allegations of rape a “crock” and reported said that it couldn’t have happened as the entertainment duo was separated for only a few minutes.
As a criminal defense lawyer myself, I can only imagine that the defense lawyers in this case must be salivating in anticipation of their opportunity to cross examine this accuser whose inconsistent statements, history of an unsubstantiated rape allegations, obvious intoxication, combined with the lack of evidence and any physical indications of a sexual assault only aid the defense in demonstrating reasonable doubt, if not false statements and malicious prosecution.
The absolute lack of substantial evidence in this case, conflicting statements of the accused, along with the appearance of a politically motivated prosecution should make this case an easy win for the defense. I would imagine that without the unusual public interest in this case, and severe criticism of the D.A., this case would be a real candidate for dismissal. However, with the intense scrutiny, a dismissal will require Mr. Nifong to stand up, take his lumps and do what’s ethically required of him in his official position, something he has refused to do to this point even when faced with compelling evidence of the outright innocence of one of the accused.
Prosecutor’s seldom back down, even when they know they should, and I imagine this case will linger into trial, continuing to stigmatize these young men even further for the foreseeable future with allegations of sexual crime.
The issue that should also be discussed in connection with the Duke case is the real dominance and unchecked power that prosecutor’s across this country have over the indictment process. Some will argue that a trial before a jury is a check to this power, which ultimately may be true. However, in this day of immediate media coverage and electronic access to public records revealing pending criminal charges, a felony indictment alone can destroy a reputation and a career.
''The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges . . . . Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.'' United States v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion).
Grand juries are to operate under the direction but not the control of the prosecutor. However, in reality prosecutors in almost every jurisdiction in this country have unfettered control over the indictment process. They are the gatekeepers of all information that is presented to the grand jury. They are often the only individuals present other than the jurors themselves. They submit the “evidence”, which can contain facts and statements traditionally inadmissible before a court at trial, and they make the only arguments. Their version of the case is completely uncontested and one-sided. The defense has no right to present evidence to the grand jury or to have a lawyer present. Witnesses who testify before the grand jury have no right to have a lawyer present with them before the grand jury. In fact, there is no one present, or any mechanism in place, to prevent a prosecutor from misleading a grand jury, whether by direct falsehood or by the omission of exculpatory evidence, to get an indictment. There is no judge or moderator to guarantee that the evidence presented is fair, accurate and complete. Sadly, it has been said, and it is true, that even an inexperienced prosecutor can convince a grand jury to indict a ham sandwich.
In the initial stages of a prosecution, when a decision is made to indict an individual for a criminal offense, it is of fundamental importance to the functioning of our criminal justice system that prosecutors be dedicated to Truth and Justice. However, whether it is a result of indifference, immense case loads, a jaded belief that everyone who encounters law enforcement must be guilty, or most sinister, personal motivations outside the pursuit of justice, people are wrongly indicted in this country every day. As is apparent from the Duke case, from the uncomfortably large number of wrongly convicted people being cleared by DNA evidence after years of incarceration, or from countless reported cases involving prosecutorial misconduct, prosecutors often disregard their incredible power and their corresponding responsibility when presenting a case before the grand jury. They forget the harm their abandonment of the search for justice can have upon the confidence given our criminal justice system, not to mention the devastation of being wrongly accused and convicted.
It is this reason, this unfettered power and the ability to destroy a reputation and a life, that has supported additional ethical responsibilities upon the prosecutors for the government. State Bars in every jurisdiction across this country have codes and rules which hold prosecutors to a higher standards than all other lawyers. Prosecutors are required to pursue truth and justice. Prosecutors are to be committed to the end of justice not just the pursuit of victory. Prosecutors are to not only to assure that the guilty are punished justly but to ensure that the innocent do not suffer the injustice of wrongful prosecution, and even worse, wrongful conviction.
Unfortunately, it the experience of defense lawyers across this country that many prosecutors do not, and to be fair maybe only a few of us mortals can, live up to this high moral and ethical position. Prosecutors routinely indict individuals and prosecute them aggressively through trial when they either believe, or have good reason to believe, they might be innocent. The Duke case is not an isolated incident. Prosecutors accuse, indict and convict innocent people, it is a fact. Accusers routinely falsely, or mistakenly, accuse innocent people who have done nothing other than be in the wrong place at the wrong time.
This is why we should consider some additional protections for the accused before the grand jury. There is no particular format demanded by our great Constitution about how a case is to be presented to a grand jury or which requirements or what evidence must be presented during the process. However, prosecutors must be held to the highest standards when presenting evidence to a grand jury. They should present all the facts, not just those that favor indictment. They should be honest and fair when arguing a case, which if the grand jury “true bills” an indictment will tarnish the reputation of an individual for a long time, if not for life.
Whether we should establish and neutral hearing officer that presides
over the grand jury, whose only obligation is to ensure that a fair
and accurate case is presented to the grand jury or simply strengthen
currently existing ethical rules for prosecutors that will truly hold
them accountable for their actions, something must be done to prevent
more innocent lives from being destroyed by unethical or unconcerned
prosecutors. This is the discussion the Duke case should lead us. How
do we as a society protect the true victims of crimes while protecting
innocent suspects from over zealous prosecutions which can be driven
by blind, and sometimes bad, faith? Obviously, the current system needs
some improvement.
Timeline of March 13
11:30 p.m. - Approximate time, according to a Durham police warrant, of the two exotic dancers' arrival at 610 N. Buchanan Blvd.
11:50 p.m. - Neighbor Jason Bissey told the Raleigh News and Observer that he saw two women walk to the back of the house, where they were greeted by a man.
12:00 a.m. - Bissey sees the two women enter the house.
12:02 a.m. - A time-stamped photo provided by defense attorneys shows women dancing in front of the lacrosse players.
12:03 a.m. - Another photo shows both dancers leaving the party.
12:03 a.m.-12:30 a.m. - There is a 27-minute gap where no photos were taken.
12:07, 12:14 a.m. - Phone bills indicate two outgoing calls are made from sophomore Reade Seligmann's cell phone. Seligmann was arrested April 19 and charged with first degree forcible rape, first degree sexual offense and first degree kidnapping.
Sometime before 12:24 a.m. - A taxi driver has said in a written statement that he picked up Seligmann and a friend a block and a half away from the party.
12:24 a.m. - Seligmann's ATM card is used at a Wachovia bank. The taxi driver confirmed that he drove Seligmann and his friend to a bank and fast food restaurant before taking them to West Campus.
12:25 a.m. - Seligmann calls his girlfriend, another Duke sophomore, on his cell phone.
12:20 a.m.-12:30 a.m. - Bissey told the Durham Herald-Sun he saw the women leave the house during this period, only to try to go back inside to retrieve a missing shoe.
12:30 a.m. - A time-stamped photo shows the alleged victim, wearing only one shoe, rifling through her purse and apparently smiling on the back porch of 610 N. Buchanan Blvd.
12:37 a.m. - A photo shows the woman lying on her side on the porch, apparently passed out.
12:41 a.m. - A photo shows the woman sitting in the passenger seat of a car with the door open.
12:45 a.m.-1:00 a.m. - Bissey said he saw the two dancers leave in a car sometime during this time period. He said he saw one man standing adjacent to the East Campus wall, shout "Thank your grandpa for my nice cotton shirt." He added that he saw the players leave the residence shortly thereafter
12:46 a.m. - Seligmann's DukeCard is used to gain access to his Edens dormitory.
12:53 a.m. - The second dancer calls 911, saying white men who came out of 610 N. Buchanan yelled "nigger" at her from near the East Campus wall. Defense attorneys have questioned inconsistencies in the call - the caller first said she was driving, and later said she was walking when the slur was yelled.
12:55 a.m. - Durham Police Department officers arrive at a quiet 610 N. Buchanan Blvd. They saw there was evidence of a party, but nobody answered the door when the officers arrived.
1:22 a.m. - A female grocery clerk at a Kroger located on Hillsborough Road calls 911, saying "There's a lady in someone else's car, and she will not get out.... She's like, intoxicated, drunk or something." According to ABC News, the clerk later told a private investigator that, based on her encounter with the dancer that night. "There ain't no way she was raped."
1:30 a.m. - The police officer who came to respond to the Kroger call tells a dispatcher that the alleged victim does not need medical attention, adding, "She's not in distress. She's just passed-out drunk."
1:58 a.m. - An e-mail sent from the Duke account of sophomore lacrosse player Ryan McFadyen discusses hiring strippers and "killing the bitches."
The bad thing is the trial will take many months to start...
[ Back to top ]
