The Michael Nifong Scandal - MUST READ

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The Michael Nifong Scandal

By DOROTHY RABINOWITZ

No one could have imagined, when the story began last March, how soon and completely that bit of shorthand -- "the Duke University scandal" -- would be transformed.

Scarcely 10 months after, the term is now almost universally understood as a reference to the operations of Michael Nifong, the Durham County district attorney (pictured nearby), whose abandonment of all semblance of concern about the merits of the rape and assault accusations against three Duke University students was obvious from the first. So was his abundant confidence while broadcasting comments on the guilt of the accused. He seemed a man immune to concerns for appearances as he raced about expounding on the case against the accused lacrosse players and calling them hooligans. He would hear nothing by way of concern from Duke administrators (seven months into this affair, the university president did find an opportunity to mention the accused students' right to a presumption of innocence) -- and certainly none from the politically progressive quarters of the Duke faculty who lent their names to an impassioned ad thanking everyone who had come out to march in protest against the rape and assault of the exotic dancer; 88 faculty members signed it, among them such Duke luminaries as Alice Kaplan, author and student of fascism, and Frank Lentricchia, literary critic.

Unable to take part in the ad signing, Duke's administrators nonetheless found ways to identify with its spirit. Soon after news broke of the Duke athletes' alleged brutish sex crimes against a black woman, the administration undertook a well-publicized campaign targeting the entire lacrosse team for offensive behavior. President Richard Brodhead was, it seems, barely able to recover from the shock of his discovery that a party thrown by male jocks could occasion heavy drinking. And related loutish behavior. Not to mention a stripper. Lacrosse was suspended for the season, and the team coach, Mike Pressler, was shortly after forced to resign. Mr. Brodhead in due course reinstated the team, but on probation, and with conditions, i.e., no underage drinking and disorderly conduct, and no harassment. The members of other Duke organizations, sports teams included, which had sponsored parties where alcohol flowed freely and which had featured strippers -- an informal count reveals at least 20 known to have done so -- no doubt understood that they faced no similar disciplinary action. The reason for the moral-cleansing program devised for the lacrosse team could scarcely have been missed.

Mr. Nifong's confidence that he had nothing to fear from establishment opinion or from the leaders of the great university as he bounded about making hash of the rules of justice -- prime among them the accused's right to a presumption of innocence -- proved justified. And might have remained so longer but for the catastrophic effects of the accuser's unraveling stories.

Mr. Nifong is no anomaly -- merely a product of the political times, a prosecutor who has absorbed all the clues about the sanctified status now accorded charges involving rape, child sex-abuse and accusations of racism. Which has in turn ensured their transformation into weapons of unequalled power. Like others before him, the DA quickly grasped the career possibilities open to him with such a case and proceeded accordingly -- denouncing racism, and the rape and assault of a helpless black woman, and the Duke athletes guilty of these crimes in every media interview available to him (and they were many).

For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit.

Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: That for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.

In his role of avenger of a young black woman alleged to have been brutalized by white males, Mr. Nifong proceeded with similar assurance. His was a crusade. Who but enemies of the good would object? Confronted with hard questions about his evidence, whether from the defense or the press, Mr. Nifong answered that these challenges were all designed to intimidate the rape victim. More than once the DA suggested, as criticisms of his case multiplied, that he was himself a victim of the press. He could have had little complaint, last summer, about the New York Times, which provided its own reports on the Duke story. It maintained that that the DA's case had been distorted by the defense and that there was, in fact, a body of evidence that supported the decision to take the case to a jury. A close study of this work's wondrous logic, and of its body of evidence, should provide rich material for students of the press for years to come.

The jury to which Mr. Nifong played -- the black population of Durham -- duly helped re-elect him. This could not prevent his case of rape and abuse against the three Duke students from coming undone, thanks in part to his own heedless behavior but mainly to the accusing dancer herself, whose shifting stories and checkered past could not be hidden.

Mr. Nifong had, of course, nothing like the advantages of nursery school prosecutors: endearing 4- and 5-year-old witnesses clutching teddy bears, who came to court to recite lies they had been cajoled into inventing, about how the accused had raped and stabbed them, cut off the legs of animals -- the kinds of charges mounted, against elderly Violet Amirault of Massachusetts and her adult children Cheryl and Gerald, proprietors of the respected Fells Acres Day School. Many like them were caught up in the era's whirlwind of accusation and sensational trials invariably leading to conviction, on which ambitious prosecutors built careers. Almost all those cases would ultimately be thrown out by appeals courts, most of the time not before those convicted had served long years and paid with the ruin of their lives.
Mr. Nifong's case has come undone long before any trial, fortunately for the three Duke students charged. They have had, nevertheless, a powerful taste of what it means to have been named and despised as perpetrators of abhorrent sexual crimes. I could go to prison for 30 years, Reade Seligmann, one of the accused, told the late Ed Bradley during a "60 Minutes" interview last October -- and "for something that never happened"

Neither Mr. Seligmann nor the other accused Duke students will ever have to contend with a punishment like the one meted out to Gerald Amirault, who was sentenced to a 30- to 40-year term for something that never happened -- atrocious sex crimes that never took place, of which there was no physical evidence, or anything resembling a credible allegation. What did it matter that the child's testimony that resulted in Gerald's conviction had claimed rape with a large butcher's knife -- one that had magically left not the slightest injury? The jury's most important duty was, the prosecutors informed them, to believe the children and show that they honored their testimony. The same young witness also testified that Gerald was accompanied by a green, silver and yellow robot, R2-D2, from "Star Wars."

What did it matter, either, that special judicial hearings about the Amiraults' prosecution had concluded that it was a travesty, that a tough panel of former prosecutors, the Governor's Board of Pardons, had virtually declared Gerald Amirault innocent and voted for commutation of his sentence -- or that he was finally granted parole nearly three years ago, after nearly 18 years' imprisonment? He was almost immediately classified by Massachusetts's Sex Offenders Registry Board as a Level 3 offender. The kind, that is, deemed the most dangerous and most likely to re-offend. This bizarre classification, the board made clear, had to do with the number of counts of sex abuse charged to him -- and the fact, too, that he continued to deny guilt. He now has to wear a large tracking device around his ankle, and obey a curfew confining him to the house from 11:30 p.m. to 6 a.m. every day. He has, not surprisingly, been unable to find a job. He is sustained, as ever, by the unstinting devotion of his family, and he grieves now mainly for the loss of the chance he had dreamed of in prison -- of earning a salary and finally lightening the burden his wife had carried, uncomplaining and alone, during his years in prison. (He has recently been advised of pending legislation that will require him to pay $10 a day for the global positioning tag on his leg, that tracks him.)

The accused Duke students can be grateful that the case against them has collapsed, and that Mr. Nifong now confronts a serious ethics complaint filed by the North Carolina State Bar. They will never have to face anything like the malignant force which descended on the happy and ambitious Amiraults in 1984, and turned their lives to dust. But Reade Seligmann, David Evans and Collin Finnerty have this year had a look into an abyss that has claimed many others, and that is never less than terrorizing. It is a piece of their Duke education they are unlikely to forget.

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