Can It Really Be That Simple?
New York Legal News Round Up

A Travesty of Justice

Drlogo11_6As my regular readers know, I'm now writing a weekly column for Sui Generis' partner The Daily Record.  My prior columns can be accessed here.

This week's Legal Currents column is entitled A Travesty of Justice:


The Duke rape case had the makings of a front-page news story from the very start.

The allegations were shocking and the underlying facts were salacious enough to result in the predictable media frenzy that followed.

It seemed everyone had an opinion, shaped in large part by preexisting presumptions. Long before any exculpatory evidence had surfaced, criminal defense attorneys were eager to point out minor inconsistencies in the case against the lacrosse players while victims’ advocates decried the horrible accusations and steadfastly supported the accuser’s version of events to the very end, despite mounting evidence to the contrary.

Last week, after the dismissal of the charges against the three students, some media outlets did something that was rarely done in the past: They released the accuser’s name. As a result, in the wake of this high profile case, some have called for the media to end its long-standing policy of refusing to release the names of complainants in all sexual assault cases.

What I found to be the most bizarre rationale offered by some proponents of this change is that the current practice of keeping a victim’s identity secret actually reinforces the idea that the victim should feel guilty and hide in shame behind the veil of anonymity.

This assertion ignores the fact that the inherent nature of this class of crimes is different from all others. To suggest that splashing a sexual assault victim’s name and image across the front pages of newspapers could somehow be an empowering act is nothing short of ridiculous.

More importantly, however, is that those who propose naming future victims suggest the option for all the wrong reasons. The underlying assumption of this proposal is that the accuser’s false allegations in the Duke rape case are the sole reason for the travesty of justice that occurred. For this theory to hold water, it must be true that people rarely lie, therefore the threat of exposing the identities of sexual assault victims is a sure fire way to weed out false claims.

Nothing could be further from the truth. During my tenure as a Monroe County assistant public defender, I learned that people lie all the time. People twist the truth to their advantage regardless of which side of the case they’re on. I’ve seen complainants bring patently false accusations against ex-boyfriends and I’ve seen defendants insist they’re innocent of the charges against them in spite of damning video evidence.

I’ve seen lawyers on both sides of a criminal case engage in somewhat questionable behavior, and I’ve seen judges do the same. We are all human and humans are fallible.

Despite having such knowledge, I’ve always had faith in the criminal justice system. If everyone is doing their job, the truth, or something close to it, generally prevails, although there are certainly exceptions to that rule. A key element in that equation requires those charged with upholding the law, including prosecuting attorneys, to act ethically and responsibly.

A good prosecutor is an excellent judge of character. A good prosecutor seeks justice, not convictions, in each and every case she handles, is selfless and does not seek personal gain from the cases he prosecutes. And, most importantly, a good prosecutor exercises prosecutorial discretion in a fair and judicious manner.

By most accounts, Mike Nifong, the district attorney in the Duke rape case, was anything but a good prosecutor. He placed his political ambitions ahead of his duty to seek truth and justice. Had he waited until all of the evidence was in before he discussed the case with the media — and certainly before indicting those young men — then their lives would not have been ruined. Nifong’s failure to exercise discretion in the prosecution of this case caused untold harm.

Without question, a travesty of justice occurred, in large part because Nifong rushed to judgment for purely selfish reasons. However, one prosecutor’s failure should not result in the exposure of future victims of sexual assault to public humiliation and embarrassment. To do so would discourage future victims from reporting sexual assaults and allow assailants to get away with their crimes time and time again, which would be a travesty of justice, indeed.


Here's a video that sums up the case in 7 minutes or so:


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Boo-fucking-hoo, her name got released. So she's publicly recognized as a liar of the worst sort.

It's certainly not as bad as the punishment I would choose for her - throw her in jail.

The allegations she made are very serious and could have easily landed the accused in jail serving long terms; time and again, you read about men who serve long jail terms because someone cried "rape" - only for evidence to mount years later that the woman was *lying*.


Given that the Duke rape case is virtually a carbon copy of the Tawana Brawley case, Al Sharpton and Jesse Jackson are doing a fine job of diverting attention away from this case with getting Imus fired.


Prosecutors and interrogators are legally permitted to lie and use lies in order to secure confessions from the confused / accused, true or false?

20 convictions have been overturned by DNA evidence, true or false?

When a domestic violence complaint is made, the male gender is the presumed guilty party, true or false?

In the event of a divorce, the female gender is the presumptive "better parent" and will usually be awarded over 50% of all marital assets, true or false?

Scott Huminski

Nifong is an angel compared to the felony conduct of the prosecutor described in the below Court brief.
-- scott huminski

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