Wednesday, April 19, 2006

A one-man dialogue on the Duke scandal

Why the hell am I so interested in this when I'm usually so hostile toward tabloid stories? It's an intersection of a lot of broad topics that interest me: college sports and the culture they foster, race, entitlement, law (I'm CrimeNotes for a reason), elite universities, and press coverage.

Why is it my inclination to be so hostile toward the defendants? At first, it was because the allegations were so heinous, and they sounded in character. Most of us who attended universities with majors sports programs at some point brushed up against these kinds of cultures, even if obliquely. The allegations are sort of the worst-case projection of what those kinds of guys are like. A few years back I read a book by Bernard Lefkowitz called Our Guys, which depicted the criminal investigation into a similar incident among wealthy high school athletes. These allegations had (and have) the ring of truth.

They didn't subsequently help their case by behaving in a way that spoke to secrecy and entitlement. Assuming that nothing fishy happened here, and their knee-jerk reaction was to dismiss the allegations as insanity, 48 hours into the case it should have been clear to their parents and attorneys that this wasn't the time for righteous indignation. Somehow, the lawyers representing these guys continue to make press statements that border on inflammatory. Consider the following quote from Collin Finnerty's attorney:

"It's just mind-boggling," Osborn said. "In my 32 years of experience, it's just hard to believe that anything like this [the felony charges] could happen."

Here's what a more press-savvy lawyer would have said:
"We are of course disappointed that these felony charges have been brought, and are confident that they are without merit. I look forward to clearing Mr. Finnerty's name and proving that he has no relation to these truly horrifying allegations."
See? Much easier, much less inflammatory, as well as clearer, concrete, and unemotional.

Aren't they innocent until proven guilty? Yeah, of course -- although I wish you luck in finding that phrase in the Constitution. Like everyone, I'm just taking in the information and giving it my best guess.

What about the lack of DNA evidence and the receipts and records that establish an alibi? This is all coming from the defense attorneys. These are risky statements. For their clients' sakes, these representations better be ironclad. I've also got to think that unless this DA is completely abusive of his power, he's got evidence that's more solid than what he's showing in the press. It's possible that he's playing to the media and his constituents, but indicting these two guys for political reasons would be the worst kind of evil, as well as potentially ruinous to his career. For pragmatic reasons, I'll guess he's got a trump card.

You just hate rich kids. Oh, hell yes, but I still think they should be treated fairly. It's tough to understand why these guys were indicted if there isn't something solid to back it up.

Yet you like Duke people. I can't think of a single person I know who went there that I dislike. I feel bad for the school. If this happened to my university, I'd be devastated.

Where is this headed? The new O.J. Apparently, everything is a battle in the culture wars. Check out Media Matters to see how this shit's getting handled on right-wing radio. Michael Savage, for example:
The Durham dirt-bag case disgusts me to my core. Here, you have a drunken slut stripping whore accusing men of raping her when there is absolutely no evidence of such a rape other than what comes out of that filthy mouth of hers.

Meanwhile, Jesse Jackson is pledging to fund the college tuition of the alleged victim. That'll turn out to be a great move if, in the end, she's a liar. But it's been a few years since the Tawana Brawley disaster, so what the hell.


evil girl said...

what happened to flop's irreverent musings?

CrimeNotes said...

Flop's busy with work so I'm picking up the slack.

What, Malachi, the Flying Tomato and Collin Finnerty (see below) weren't irreverent enough for you? Nitpicker.

22280 said...

Not directed at you, crimenotes, but at the world in general:

Lots of people claiming to have this case all figured out already - and pretty much all of them has an agenda. You've the got the Savage contingent. They don't have much use for strippers, single mothers or poor black people in general. In their world, it's the rich, white kids who never seem to catch a break. They WANT these kids to be innocent, and they see what they want to see.

Then you have the Jesse Jackson group. They finally have their chance to stick it to coddled, rich white people - and the fact that these guys are athletes is just icing on the cake. I've heard a few people imply that whether these players are guilty of rape or not, it's good that they're going through this because, hey, they seem like assholes and probably did "something" wrong that night. What nonsense ...

The only redeeming factor is that every embarassing, irrational rush to judgement has been followed by an equal and opposite embarassing, irrational rush to judgement.

One thing I think I CAN say with certainty about this, regardless of innocence or guilt: The notion that these guys were not "cooperative" enough with police was a crock from the very beginning - typical D.A. bullshit that gets floated out there when there's not a signed confession on the table within five minutes of the accusations.

CrimeNotes said...

I'm with you up to the last paragraph, where I think the picture is a little muddier.

First off, obviously there's no requirement to be cooperative. You don't have to open your door for a warrantless search; you don't have to talk to cops without a lawyer; you can opt to take the Fifth Amendment; etc. And cops often try to bully suspects into cooperating with veiled threats. But almost from the beginning, this wasn't one of those cases: it was a big story, with defendants whose resources allowed them to hire legal counsel. These don't strike me as the kinds of suspects who could be bullied into cooperating.

The question isn't whether it's within your rights not to cooperate, but rather, what would be the comparative advantages and disadvantages of not cooperating, and why would you cooperate or not. Obviously this isn't something that a jury hears, but if you're looking at it from the outside, it invites some inferences.

Let's say you're Duke lacrosse player John Smith. You were at the party, but you had absolutely nothing to do with the rape. In fact, you're confident that no rape happened -- the strippers were never away from the group more than three minutes at a time. Why wouldn't you swear to an affidavit saying as much, submit to any search, undergo questioning (with your lawyer present) and answer truthfully? I guess you could come up with a scenario about being framed, or about asserting your rights just on principle, either of which is your decision but certainly not a very practical approach.

Conversely, let's say John Smith was present at the party and is inacurattely targeted as a key suspect in the investigation. Smith believes that not only did a rape happen, but is fairly confident that he knows who was involved. In the interest of self-preservation as well as personal ethics, what do you do? You and your lawyer would sit down with the DA and the cops and provide a moment-by-moment account of what happened when. You'd name names and provide a timeline. Now, maybe you wouldn't do this if you thought that the state was hell-bent on prosecuting you personally -- in that case, you'd hide your cards, confer with witnesses who can corroborate what you're saying, and think about how you'd defend the case at trial.

If you're John Smith and you were a participant, you would not only refuse to cooperate, but release as much smoke and confusion as you can.

At this point in an investigation, it's going to be every man for himself -- at least if they're represented by lawyers with a couple of brain cells. You wouldn't be part of a united legal front just for the sake of a team.

What I suspect happened -- and what gave the DA enough evidence to bring this case -- is that a sufficient number of these players and their lawyers have come forward with similar, roughly credible accounts that exonerate them. There were enough players present that they all couldn't have been involved, assuming that this rape did in fact happen. For pragmatic and practical reasons, if your hands are clean, you're one of a large number of witnesses or suspects, and you can affirmatively account for your innocence, why wouldn't you?

CrimeNotes said...

Also -- and this happens all the time with a large group of suspects in criminal investigations -- there's a funny kind of prisoner's dilemma. You can only present a united front as long as everyone is on board. One guy flips and discloses everything (good or bad) and the rest of them fold.

I'm not claiming to know anything, and to reiterate I don't have any agenda here, but the tactical questions are interesting.

22280 said...

There's a huge potential conflict of interest with the same lawyers representing so many team members. What if one of them saw the other do it and they're represented by the same guy?

That said, I just think you're giving the DA way too much benefit of the doubt. Reports lately have indicated that he's been refusing to meet with defense attorneys to discuss evidence, etc. So even if the players had come forward and talked initially, who knows how willing he would have been to listen ...

Interrogations like that aren't always a search for the truth.

CrimeNotes said...

I can't say this for certain -- and correct me if I'm wrong -- but I'd be amazed if each of these guys didn't have their own lawyer. For a lawyer to represent more than one of them would be borderline malpractice, if not malpractice per se.

And don't get me wrong, I don't think that a DA in a case like this is necessarily on a singleminded crusade for truth and justice. Now that he's issued these indictments, he'll want a conviction. He doesn't necessarily have an incentive to deal with Finnerty or Seligman's lawyers -- I'm pretty sure he doesn't have to, and he probably doesn't want to give away his case -- but if he's not getting information from some of these other guys, he's stupid.

CrimeNotes said...

This article makes it sound like the cops used an extremely fucked-up photo identification process, though.

I want to think the DA is smarter than he seems, but some of this stuff is just fucked up.