Writing at cbsnews.com, legal analyst Andrew Cohen expressed concern about the legal impact of the massive publicity in the Yale murder case. Taking note of the breathless reporting from “anonymous” sources, Cohen noted that “it’s no wonder that [defendant Raymond] Clark’s attorneys now are talking about opening a legal ethics case into the way prosecutors and the police have trampled upon Clark’s fair trial rights, and his constitutionally-protected presumption of innocence.”
Cohen is absolutely correct in his concern. Of course, what Clark has encountered paled in comparison to what the falsely accused Duke students received. The New Haven district attorney didn’t (to my knowledge) give 50-70 interviews to the local, state, and national reporters—as the disbarred Mike Nifong did. Clark’s mugshot didn’t appear on the cover of Newsweek (and with a headline prominently featuring the word “lies”)—as Reade Seligmann’s and Collin Finnerty’s did. And, of course, a crime actually occurred in the New Haven case—whereas Duke featured only constantly shifting and mutually contradictory allegations of a crime.
Given that the publicity orchestrated by Nifong and almost gleefully amplified by the media was even more intense than what Clark has been subjected to, some might assume that Cohen was, at the least, equally outspoken in his criticism of how the Duke case publicity trampled upon the players’ fair trial rights, and their constitutionally protected presumption of innocence.
Cohen was outspoken in the Duke case, of course, but concerns with due process or “legal ethics” did not figure high in the commentator’s analysis.
Indeed, in a late June 2006 washingtonpost.com column, Cohen preposterously claimed that the media had rushed to the “defense” of the Duke defendants. (So that was why two editors of the Times apologized for their biased coverage!) Ignoring that Newsweek cover, most of the first few weeks of the case, and everything published in the Times or broadcast on Nancy Grace, Cohen maintained “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” He demanded for Mike Nifong and Nifong’s Durham supporters “the privilege of seeing the case unfold at trial the way it is supposed to.”
What explains the imbalance—to borrow a word—in Cohen’s analysis? His assertion that the lacrosse players benefited from “race and money.” Clark, on the other hand, while white does not appear to have upper-class or upper-middle-class parents. And so, to cbs.com’s “chief legal analyst,” the pre-trial coverage of his case is a threat to due process, while Nifong’s massive misconduct and the mainstream media’s rush to judgment appeared of no concern.
In Slate, Emily Bazelon made the following observation: “The Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape. In the Duke scenario, a woman who’d been brought in to dance at a lacrosse party said she was the victim of a brutal 30-minute gang rape in the bathroom by three lacrosse players. Durham County District Attorney Mike Nifong got caught up in prosecuting the charges and defending the false accuser to the point of professional insanity."
That strikes me as an awfully generous description of Nifong’s motivations, in that it ignores the conclusion of the State Bar’s ethics panel that “self-interest” formed the basis of Nifong’s actions. And, of course, in the lacrosse case, no contact of any kind occurred, unlike in the Hofstra case.
Bazelon further observes, “The weird lesson for men who have group sex in bathrooms: Film it on your cell phone. Five minutes of video of the sex, which one of the men gave the cops, apparently persuaded the 18-year-old to take back her original story. At another moment, such a video might have gotten the guys in trouble for making porn and for sexting. But this time, it seems to have saved them.”
That certainly is a lesson applicable for Duke students: as I have noted before, videotaping sexual encounters appears to be the only way to guard against the filing of false sexual assault charges under Duke’s new policy, whose procedures are tilted blatantly in favor of the accuser.
Finally, something that the Nifong-rationalizing Andrew Cohen might want to take note of: the main reason that “the Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape” is that the Nassau County DA’s office was willing to look at the exculpatory evidence that the suspects possessed.
In response to the filing of false sexual assault charges by one of his institution’s students, Hofstra president Stuart Rabinowitz issued a statement, in which he asserted:
We will redouble our educational efforts and try to increase awareness among students, faculty, and staff of any potential signs of danger or dangerous behavior, and the need to pass that information on to Public Safety so that it can be adequately and appropriately addressed . . . I will be appointing a Presidential Task Force under the direction of the Vice President for Student Affairs and the Vice President for Facilities and Operations and consisting of representatives from students, faculty and administrators, to undertake a review of all aspects of security, including operations, communications, programs, policies and procedures to insure that we are taking every possible precaution to maintain a secure and safe campus. In addition, we will once again be seeking to utilize the services of an outside consultant to conduct a security audit and make recommendations as to best practices and possible enhancements to our program.
Again: the issue in this case was a Hofstra student making up a false rape claim. How would a security audit address that issue—will Hofstra security officers increase campus patrols, on the lookout for women who make false rape claims in their midst?
One last item: the Nassau County DA's office has announced that it will not file charges against the rape false accuser, Danmell Ndonye. The reason, according to the New York Post: "Prosecutors defended not bringing charges against Ndonye, saying that if they did, she would have faced only mental-health treatment and community service because of her age and lack of a criminal record."
This was about as obvious a case of filing false charges as possible: a videotape showed that Ndonye had lied, and Ndonye admitted that she had lied. Yet even in this sort of case, where Ndonye's word and Ndonye's word alone could have sent innocent people to jail for decades, the maximum punishment she could have received was a slap on the wrist. To, again, borrow Andrew Cohen's phrasing, there's something out of balance in this sort of arrangement.