Another Durham "Gang Rape"

“Anytime you have a victim who can identify her assailant,
then what you have is a case that must go to the jury.”
--Mike Nifong, April 11, 2006

Nifong administrative assistant Candy Clark “spoke to the [accuser]
late last week and usually contacts her once or twice a week.”
--Duke Chronicle, October 18, 2006

Nifong “sought indictments based on a version of events in which [Kim] Roberts played a central role without even asking Roberts whether the accuser’s statement was true.”
--blog, October 13, 2006

“My public comments in this case . . . were essentially restricted to 1) my belief that the victim had in fact been sexually assaulted . . . and 2) my hope that one or more of the persons who were present but not involved with that assault would cooperate with the investigation.”
--Mike Nifong, June 19, 2006

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It was, to borrow a phrase, a crime that talked about what the community stood for—a crime that needed a prosecutor willing to make a statement for the Durham community that this was not the kind of activity it condoned.

On April 10, 1989, a 21-year-old woman told police that she endured a horrific experience at the Woodcroft Shopping Center, in southern Durham at the intersection of NC 751 and NC 54. The May 26, 1989 Herald-Sun recounted the accuser’s harrowing ordeal:

Four men approached her in the shopping center’s parking lot and forced their way into her car.

The woman told detectives one of the men drove south on NC 751 nearly to the Chatham County line before parking the car in a deserted area. Each of the four then sexually assaulted her before returning her to the Woodcroft Shopping Center.

The woman filed a complaint, and Investigator M.J. Thaxton took over the case. (Thaxton did not respond to several e-mails asking for comment.) A microfilm search through old issues of the Herald-Sun and N&O uncovered no reference to the prosecutor’s office making any public statements on the case as the investigation proceeded. Despite the public nature of the kidnapping, no one from the D.A.’s office branded the alleged rapists “hooligans,” or used the bully pulpit to demand that witnesses step forward.

Thaxton, nonetheless, had an accuser—and she could identify her assailants. The heinous nature of the crime—a gang-rape of a poor, defenseless woman—necessitated getting the criminals off the street as soon as possible.

The prosecutor didn’t wait for the next meeting of the grand jury to seek indictments; instead, Thaxton arrested the four men, who were lawn-care workers, while they were on a job in Cary. One was 28 years old, a second was 22, the other two were 18. All were either black or Hispanic. Each was charged with first-degree kidnapping and first-degree rape. Because they were arrested, of course, each received a right to a probable cause hearing.

Displaying the community’s outrage, a judge imposed bond of $100,000 for the two alleged ringleaders. Since neither could meet the bond, both remained in jail.

After filing charges, however, the prosecutor and his office failed to keep in touch with the accuser. By the end of May, the prosecutor publicly conceded that the “victim has left residence . . . [and] her whereabouts are unknown.”

Even more startlingly—at least after what we’ve all witnessed over the past eight months—Thaxton actually decided to investigate whether the accuser’s story was credible, rather than maintaining that only a jury could decide the issue. He discovered that the accuser’s report to police contained what the prosecutor described as “numerous demonstrably false statements.” Thaxton also uncovered “highly embarrassing” information about falsifications in the woman’s allegations. Therefore, the officer concluded that the “charges appear to be without substance.”

The prosecutor agreed. On May 25, 1989, all charges against the four men were dropped.

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No case has identical facts. But procedures should remain constant. To sum up the different procedures and investigative conduct by law enforcement officials between Durham’s 1989 “gang rape” and its 2006 version:

1.) In 1989, the Durham prosecutor respected the canons of the state bar’s ethics code and refrained from either misleading public statements or statements that heightened public condemnation of the accused; in 2006, Nifong acted as if these rules did not apply to him.

2.) In 1989, the prosecutor accepted the mandate in the ethics code to exercise discretion in which cases to prosecute; in 2006, Nifong publicly, and inaccurately, stated that he lacked discretion, and was required by law to take the case to the jury as long as the accuser could identify her alleged assailants, no matter how incredible her story.

3.) In 1989, Thaxton, the lead investigator, appears to have talked to the accuser about the incident, and investigated discrepancies in her story; in 2006, the supervising investigator, Nifong, has asserted that he still hasn’t spoken to the accuser about the night in question, and that he sought indictments without re-interviewing the second dancer about her allegedly witnessing the start of the crime. He described this approach as “the good old-fashioned way” in which “witnesses got on the stand and told what happened to them.”

4.) In 1989, the D.A.’s office lost touch with the accuser; in 2006, the office regularly chats with the accuser, with the D.A. even claiming that they talk about her children (though, of course, not about anything relating to the accuser’s allegations).

5.) In 1989, faced with what he thought were dangerous criminals, the prosecutor acted to get them off the streets as soon as possible by having them arrested; in 2006, faced with what he claimed to think were dangerous criminals, Nifong waited nearly 10 days before arresting them, thereby denying the targeted students the opportunity for a probable cause hearing.

More differences between the procedures followed in the 1989 “gang rape” and the 2006 “gang rape” might exist; unfortunately, because the case never made it to trial, the court file couldn’t be located, and the prosecutor declined a request from me to comment on his actions.

By the way: the name of the prosecutor in that 1989 case?

Mike Nifong.

Hat tips: B.R., B.J., Bethany