Don't Rush To Judgment On Duke Case

The rape case involving two and perhaps three members of Duke University's lacrosse team is the sort of saga that was bound to generate frenzied media attention in this hopped-up tabloid world. The story of what did or did not happen in a tiny bathroom at an off-campus house in Durham, N.C., on March 13 is a story of race, class and sex in the underbelly of college life. It is a story of big, strong, bawdy young men and a 27-year-old single mother of two — a stripper with an apparent drinking problem.

Not surprisingly, then, the story has generated a rash of silly questions and empty speculation. This happens all the time when sensational stories like this begin — in fact, the number of ignorant theories and stultifying queries is directly proportional to the number of people interested in any one case at any one time. So naturally it's time again for Court Watch's wildly popular (really, it is) question-and-answer session designed to separate for you what we know and don't know about the case — and what we should and should not know about it as well.

Two Duke lacrosse players, two sophomores, Reade Seligmann and Collin Finnerty, were arrested early Tuesday on charges of rape, assault and kidnapping. What exactly can we read into their indictments and arrests?

The most basic thing to take from the developments over the past day is that Durham County grand jurors believe that it is "more likely than not" that the two defendants committed the crimes with which they have been charged. Remember, all an indictment means is that grand jurors (and the prosecutor) believe that there is "probable cause" to suspect criminal conduct. That is a much lower burden for the government than proving guilt beyond a reasonable doubt. Remember, too, that a grand jury proceeding, like the one that spawned the indictments of Seligmann and Finnerty, is a prosecutors-only affair, with no participation at all by defense attorneys — much less any cross-examination of prosecution witnesses.

So, in light of the relative ease of getting an indictment, can the case against the two men be as weak as defense attorneys say that it is?

No. Defense attorneys, God love 'em, always get paid to tell the world about how weak the government's case is against their clients. In this case, defense attorneys for the players already have done a masterful job of shaping public opinion in favor of their clients and against prosecutors. If all you believed were the talking heads at the news conferences over the past few weeks you would think that the inescapable conclusion from the evidence is that no rape occurred at all, or at least that no rape occurred involving anyone remotely connected with Duke.

But it would be a mistake to embrace that view, at least completely and at least right now. It is inconceivable that prosecutors would push to bring charges in a case that is as weak as the defense attorneys would have us believe. Whatever else we know about this story, we know that there is more to it than has so far been disclosed; that Durham County District Attorney Mike Nifong has more incriminating evidence than he so far as told us about. Whether that is a good eyewitness, strong physical evidence or even a DNA link that no one is talking about, there is more "there" there that the defense attorneys either don't know about or at least aren't telling us about. Sometimes you know a prosecutor's case is bad from the get-go. The get-go hasn't yet occurred here. Give it some time before you reach your conclusion; take your time before you rush to judgment.

So you are saying the two young men are in trouble? That there is good evidence against them but we just haven't seen it yet?

No. I'm not saying that. I'm saying I don't know — and that many of the people who are talking so freely about this case also don't know … and that the few people who do know mostly aren't talking. Right now I have plenty of questions about the case against the two men — questions that are going to dog prosecutors right up to and through trial. First, how do prosecutors explain these photographs, apparently taking by some of the Duke players, which show the alleged victim smiling and trying to enter the house after the time in which she says she was raped. Are there other photos out there we have not seen? Could the rape have occurred later?

And what about the DNA evidence? Defense attorneys make much about what they called conclusive tests that did not link any of the players to the alleged victim. Is this all the testing that's been done? Are there other tests, and test results, floating around that we don't know about? What other physical evidence, if any links the two men to the woman? Defense attorneys said Tuesday that the defendants were indicted based upon eyewitness testimony from the alleged victim. Is this true? If so, how many drinks had she had when she got to that party? How many drinks had she had when she left? Do prosecutors have other eyewitnesses whose testimony would support that of the alleged victim? You can see even before the two student-athletes even have been formally charged that there are a lot of moving parts in this case. Let them fall into place a bit before you decide who is guilty and who is not.

So what happens now?

Think of the case now proceeding upon two separate tracks that will, on occasion, intertwine with one another and even influence the direction that each take. There is the "official track." Within a couple of weeks, a judge will formally charge both defendants, who will of course enter "not guilty" pleas. Then the pretrial stage of the case will begin. Defense attorneys will file motions seeking to limit the evidence that prosecutors can use against their clients. Slowly, through that process, we will come to know more truth about what happened on March 13.

Then there is the "unofficial track," which will involve the drip-by-drip leaking of spun information from defense attorneys and prosecution mouthpieces. Some of this information will be truthful; some won't. Some of it will add to our ability to understand what truly happened; some will not. Hopefully, the judge assigned to the case will have the courage and grace to order the attorneys to stop talking and allow the process to play itself out to its natural conclusion, whatever that turns out to be. Just because this case started out like a circus doesn't mean it needs to continue that way.

Anything else, counselor?

Just this: No matter which version of the story you currently buy into, let's all agree that it's always a tragedy when young lives collide in such an ugly fashion as this. We've seen it before. Ask Kobe Bryant. Sadly, we'll see it again. You don't need a degree from Duke or any other college to understand that the story of young men and young women getting into big trouble over sex and booze is an eternal one — eternally sad and vexing at the same time.

By Andrew Cohen