Thursday, April 12, 2007

Nifong-gate and its lessons: would make a great movie

There was no real surprise when North Carolina’s attorney general Roy A. Cooper dismissed all charges against the three Duke lacrosse players.

There are plenty of lurid details on other sites, and that brings up the first point. The young men (Reade W. Seligmann, David F. Evans, and Colin Finnerty) presumably had enormous legal expenses to clear themselves, and (apart from a questionable effort to litigate) the obvious way to make the money is books and movies. I don’t think it’s hard to imagine that mainstream large trade book publishers and television and motion picture companies will be interested in buying the rights to publish and present this story. That’s appropriate, and the three men will need the income from such deals. The media can help them now, but it could be that early media bottom-feeding after the arrests helped encourage Nifong to rush his prosecution and ignore potential exculpatory evidence.

In fact, the case for a docudrama or dramatic film, even a theatrical release, aimed perhaps at the independent film market, is overwhelming. It’s easy to guess which studios would find this material compelling: Lions Gate, the Weinstein Company, Dreamworks, and Participant (in connection with Warner Brothers), perhaps even Mark Cuban’s Magnolia Pictures, sound like obvious companies. I certainly look forward to going to see such a film. Maybe I could even help write it.

Any such film (call it “Durham” as a provisional working title) is going to have to deal with the convoluted moral lesson of the episode. The obvious one is that our criminal justice system is far from perfect. We hear a lot about racial and religious profiling these days, and government’s going after vulnerable defendants. This seems like racial profiling in reverse. Rogue district attorney Michael B. Nifong seems to have imagined the political gain of going after “white preppie privilege” (and against the male double standard that permits some kinds of sexual promiscuity, especially heterosexual -- even the Washington Post editorial on 4/13 was critical of the boys' hiring a female stripper for a party). Perhaps this does sound like a perverse kind of karma. Any time you get too privileged, someone could target you, and you might deserve it even if no one could really prove you actually committed a crime. Here, the case kept falling apart. At first, it was clear that there was reasonable doubt that would prevent any reasonable jury from convicting, based on all of the irregularities in the dancer’s complaint and failure of the DNA evidence. Finally, the doubt was no longer just reasonable, it was overwhelming. The attorney general seems ready to admit that the complaint was a fabrication. You are left with the dangers of “thoughtcrimes” and the possibility that, in hustle and flow, memories will be short and facts impossible to determine.

One issue, of course, is criminal procedure, and some states are much more careful than others. In some states, for example, you can’t start a secret grand jury investigation without arresting the suspect first (a much safer situation), but in others it is too easy for prosecutors to fish, especially against potential defendants who cannot, in a practical sense, afford to defend themselves properly. (Maybe we could talk about expanding "single payer" for legal criminal defense.) It’s not hard to see other areas of the law where abuses might occur. For example, consider the possibility that a home computer user might be framed by the activities of a hacker. In the litigation over COPA (Child Online Protection Act), to which I was recently party, one concern was that the overbreadth of the law could invite prosecutorial abuse. The experience with “don’t ask don’t tell” in the military (a policy which itself is not supposed to trigger UCMJ prosecutions) suggests that even here the government will sometimes go out of its way to threaten prosecutions when there are flimsy grounds. In libertarian hideouts, we often hear this about the IRS (the “Federal Mafia” problem).

The young men and their parents have also presented this episode as a test of family strength. One parent said that this false prosecution had put him into an emotional tailspin that only a parent could grasp. The incident seems to call for humility: no matter how "right" one is, one can need others, especially others to be loyal, as in a family. Bad things happen.

A good detailed account appears today in The New York Times, April 12, 2007, by Duff Wilson and David Barstow, “Duke Prosecutor Throws Out Case Against Players; Tragic Rush to Accuse; Cites overzealous District Attorney and Lack of Evidence of Attack.” .

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