Breaking news indicates that the Durham County, North Carolina D.A. that was recently removed from prosecuting sexual assault charges he brought against members of the Duke University Lacrosse Team and against whom grievances have been lodged with the N.C. Bar, ignored warnings to cease and desist from making public statements to the press about the facts of the case in the early stages. DeVine Law will post a follow up soon as we study the reports and investigate the matter ourselves from our Charlotte Metro vantage point.

I would not be surprised if the most serious charges against Mike Nifong relate more to public statements than his actual conduct of the prosecution and investigation itself for a number of reasons.

Prosecutors enjoy wide discretion and immunity in the carrying out of their duties, and properly so. But, when it comes to public statements, North Carolina, and the South in general, have far more ethical restrictions designed to prevent trying cases in the media, than do the out of control “OJ trial” states of California and New York. The things that lawyers from those states say and do in the press and even on cable news shows would land many in jail for contempt of court in Dixie.

I have said all along that Nifong’s greatest vulnerability lied in this area more than in the area of why he chose to prosecute a case where the DNA evidence seemed exculpatory. More on that later, but meanwhile, let’s look at the discretion more specifically and the application of same to rape cases.

A general rule employed by prosecutors in exercising their discretion whether to prosecute particular crimes against particular individuals requires that they be convinced that a crime has definitely occurred and that the defendants most probably committed it.

The 60 Minutes episodes on CBS featuring witnesses at the scene of the alleged rape of a stripper by member of the Duke University Lacrosse team have raised more questions about the propriety of the Durham County prosecutor’s decision to bring charges against the three defendants.

To review, Mike Nifong has charged members of the team with rape despite negative DNA evidence, strong alibis and other exculpatory evidence including from the accuser’s accompanying performer.

The allegations were made by an anonymous accuser less than 17 months after rape charges made by another, then anonymous accuser, against NBA basketball star Kobe Bryant, were dismissed. That famous 2004 Colorado case prompted the Legal Column to ask the question, “Are Alleged Rape Victims Unique?” in analyzing the unique evidentiary rules and press reporting practices in cases of rape allegations.

The current charges against Lacrosse players at Duke University in Durham have already made them infamous due to the reporting of their names and depiction of their faces in the press.

One issue in the Bryant case as in the N.C. case, concerns the standard press practice of not revealing the names or depicting the faces of alleged rape victims, while routinely reporting the names, with photos, of those accused of rape.

The only alleged victims or defendants afforded similar anonymity by the press, except for alleged victims of rape, are minor children.

In both the Duke and Bryant cases, and all rape cases in memory, the arguments for press protection of the anonymity of the victim have been related to an alleged “stigma” that “society” attaches to the rape victim that could cause true victims not to come forward unless their identity is protected.

However, after criminal charges were dropped against the Los Angeles Laker, the alleged victim filed a civil lawsuit against the accused seeking money damages for a crime that she was unwilling to testify about in criminal court. The alleged victim voluntarily named herself as the plaintiff in the civil lawsuit which named the basketball star as the defendant. The civil case file was later dismissed amid rumors that a settlement had been reached.

The major differences in the cases, however, concern the issues of DNA evidence, the prosecutorial discretion to bring charges in the first place and public statements by Durham County prosecutor, Mike Nifong, during the unusual month-long delay between the allegations and eventual arrests.

In the Bryant case the issue was whether consent for admitted sexual relations had been given by the accuser. In the present case at Duke, the accused deny that sex occurred.

Press reports so far, including the many statements by Nifong, have not reported any statements by any of the 41 Duke athletes saying that sex of any kind occurred in the frat house that night.

And in the promised ironic twist, the accuser, according to press reports, “identified” three Duke students as having raped her for 30 minutes through pictures of their torsos and limbs and not their faces, while pictures of her have appeared in the press scantily dressed in a stripper’s outfit reveling much of her torso and limbs, but not her face.

During that month, apparently relying primarily upon a hospital record that reports “vaginal, anal and other injuries consistent with rape,” along with the torsal and extremity identifications, Nifong made unusually definitive statements, especially for a Southern prosecutor, that a crime had occurred and that he was sure the DNA testing of the 41 college students would confirm who committed the crime.

DNA testing has failed to implicate any of the members of the Duke Lacrosse team, including the 3 players identified as the perpetrators.

In this case, given not only the DNA results, but also photographic, 911 audio tape and other exculpatory evidence including alibi, and intoxication evidence on all counts, it is possible Nifong did not follow the prosecutorial discretion rule cited above and should have continued his investigation.

But, in Nifong’s defense the severity of and extent to which the injuries identified as “consistent with rape” are consistent with the rape allegations, and whether the DNA tests were accurate, are presently unknown to the general public.

We await the decision of the N.C Attorney general’s decision on the case, as they replaced Nifong, at his request late last week.