Post-Modern Prosecutions...more on the Duke Non-rape case

[fastpat]

As most now know, the infamous Duke University rapes never occured, and could not have occured, but many may not know that the Prosecutor in Durham county is still pursuing the case as if a rape took place.

Post-Modern Prosecutions

by William L. Anderson

Over the past four years, I have written (or co-written with Candice E. Jackson) a number of articles dealing with the dishonesty of prosecutors in this country. The Duke Non-Rape case, as I see it, is a logical extension to a pattern that is so egregious that all we can do now is damage control. Justice pretty much is dead in the United States.

The final blow in this death of a million blows has been the increasing use of conspiracy theories by the prosecution, something that the law forbids, but the courts let it go anyway. Like so many other trends, this one has its intellectual underpinnings in that academic refuse pile we call Post-Modernism.

Four years ago, I called then-Attorney General John Ashcroft a "post-modern bureaucrat." Unfortunately, the post-modern application of law is not limited to Washington, D.C. and federal prosecutors, as bad as they are. State prosecutors are doing their best to match the outrages we see on the federal level, and they are encouraged by judges, politicians, and the gaggle of television talking heads that constitute a legal definition of air pollution.

Post-Modern Law

First, what do I mean by "post-modern law"? It is the application of post-modern thought to the execution of the law, both criminal and civil. (I will concentrate only on criminal law in this piece, however.) Second, what do we mean by post-modern thought? As I wrote in my Ashcroft article:

(For those who don’t know, postmodernism is a line of thinking that denies any possibility of Truth, and is the dominant "guiding light" – darkness? – in academe these days.) We know it also as a form of "relativism," or what Ludwig von Mises described as "polylogism" in his classic book Human Action.

As Paul Craig Roberts and Lawrence Stratton wrote in their book, Tyranny of Good Intentions, the courtroom is a place where we are supposed to find that thing called "truth," at least how truth applies to the events being examined. Obviously, it often is difficult to find "the truth, the whole truth, and nothing but the truth," given human limitations and the predilections of people to lie, but nonetheless those people who are officers of the court and those who testify under oath are expected to be truthful. Those who are not can face charges of perjury or other sanctions, and although we know that lies tend to be the staple of courtroom fare these days, truth still is the standard.

Furthermore, the rules of the courtroom require prosecutors to present a truthful rendition, or at least a reasonable account, of what occurred. For example, if I am on trial for robbery, the prosecutor first must establish that an actual robbery occurred, and, second, that I was the one who committed the act. He or she is not legally free to concoct an event that never occurred, and then pick me out at random to bring charges. That prosecutors might do such a thing does not change the fact that such conduct is illegal.

The rules for the defense are different. True, defense lawyers cannot knowingly present a false defense, but they certainly can stretch that requirement a good bit. (Lawyers rarely are going to ask their clients, "Did you do it?" precisely because they know that if the client replies in the affirmative, they are going to be limited in how they can defend that person.)

Lawyers can try to present conspiracy theories, even if the pieces of the puzzle are not easily fitting; it is up to the judge to set the limits of what attorneys can present in defense of their clients. For example, when O.J. Simpson was on trial for murder more than a decade ago, his attorneys presented the defense that the police conspired to frame him, led by a "racist cop," Mark Fuhrman. Although the pieces did not exactly fit, the defense was effective enough to have Simpson acquitted. (I will not go into the claim that the verdict was an example of "jury nullification." It will suffice simply to say that Simpson’s defense proved to be adequate for the situation.)

On the other hand, prosecutors are not legally free to act like defense attorneys. Christopher Darden and Marcia Clark would not have been able to claim that Simpson was a member of a shadowy drug gang or team of assassins and not be able to introduce any evidence to buttress their allegations. They had to stick with the real-live evidence, period.

What happens when prosecutors are permitted to introduce wild conspiracy theories? We see post-modern law in action. A telling example is the wrongful prosecution of Roby Roby Roberson and his wife in Wenatchee, Washington, 10 years ago. Roberson was the pastor of a small church in Wenatchee, and the prosecution claimed that he and his wife were leaders of a wild sex ring in which church services consisted of the Robersons and people in the congregation having group sex with little children.

The charges came from allegations that police coerced from children. There was no physical evidence of any kind, and after investigators combed the church grounds looking for any hint of semen or other clues that would have demonstrated that sexual activity took place there. They found none.

In a world where truth mattered, such results would have meant that the authorities either would drop the charges altogether or at least take a hard look at the allegations. Instead, the prosecutor in the case declared that the absence of physical evidence constituted proof that the sex crimes must have occurred.

One has to step back and realize what took place in that courtroom. First, the prosecution admitted it had no real evidence, but the jury was supposed to ignore that fact and convict because no evidence really meant the opposite: the child sex must have happened. Second, this dishonest nonsense was presented only because the trial judge – who had been extremely hostile to the defense – permitted the prosecution to present its non-evidence as ironclad proof. One can be thankful that the jury in that case saw through the prosecution lies and acquitted the couple. The prosecutor since then has been re-elected three times.

[fastpat]

The Post-Modern Duke Case

As the Duke Non-Rape case blunders toward an unjustified trial, we must understand that we are now looking at a full-blown application of post-modernism in the legal arena. First, we see many of the Duke University faculty members writing in various venues that while they seriously doubt that the rape, sodomy, and kidnapping charges against David Evans, Collin Finnerty, and Reade Seligmann are true, nonetheless the young men should be put on trial because of their race, sex, and class. Furthermore, the Duke administration, in its various sets of talking points, has said the same thing, except that the administration claims that a trial will present a chance for the Duke 3 to "prove their innocence."

Criminal trials do not "prove innocence." The legal issue at hand is either "guilty beyond a reasonable doubt," or "not guilty," period. There is no such verdict as "innocent." The fact that a prosecutor brings charges is that someone out there believes no matter what that someone committed a crime and that those people on trial committed it. I have yet to hear a prosecutor after a "not guilty" verdict claim that he or she tried an innocent person; instead, we hear the individual on trial really was guilty, but that the jury did not buy the truth.

Second, as we come to understand the medical evidence being presented, we further understand that the medical reports do not suggest that a rape even occurred. As forensic expert Kathleen Eckelt has noted, the examination and the accuser’s behavior afterward (she was pole dancing at a strip club almost immediately after the alleged rape, despite the fact that police and prosecutor Michael Nifong claimed that her injuries were so severe she could not even sit up) clearly do not indicate that there was a rape at all.

Perhaps the most "post-modern" of the prosecution claims is that the multiple stories that the accuser told police constitute "proof" that the Duke 3 raped her. In the aftermath of the lacrosse team party, she told police that she was raped, that she was not raped, that the entire team raped her, that 20 people raped her, that her partner, Kim Pittman-Roberts, helped the rapists, that Pittman-Roberts tried to stop the rapists, that she and Pittman-Roberts fought back, that five men raped her, that three men raped her, and that she was "100-percent sure" at every lineup that Brad Ross was at the party when, in fact, he was not.

The multiple tales would give normal people room for pause, but prosecutors are not normal people. Kerri Paradise, a Massachusetts woman who has been raped, has written in a November 24, 2006, letter to the Durham Herald-Sun:

The Duke rape hoax is just that, a hoax. I am a rape survivor and I can tell you that a true victim will never change her story that many times. No DNA, accuser files false charges in the past, she goes back to pole dancing within days of this so-called rape and she is a drug seeker.

Yet, according to prosecutors, both Nifong and the gaggle of made-for-television prosecutors like CNN’s Nancy Grace are claiming that the multiple stories of rape constitute "proof" that the rapes happened. After all, they declare, the rape must have been so traumatic that the accuser simply was thoroughly confused. (One of the TV prosecutors, Wendy Murphy, already has been at the forefront of the prosecutorial use of "recovered memories," a thoroughly-discredited tactic which prosecutors in Massachusetts and elsewhere have employed to falsely convict people.)

Like the Wenatchee prosecutor, Nifong and company insist that the multiple stories – which once upon a time would have been recognized as strong evidence against the accuser’s claims – now constitute proof of rape. Conversely, had the accuser told only one story which was consistent, one can be assured that the prosecution also would have used the account as proof that the men raped the accuser.

Thus, we see the ultimate post-modern absurdity: conflicting accounts constitute "proof," just as consistent accounts also constitute "proof." In a world where truth means something, people would smell a very large, nasty rat if a prosecutor were trying to say two mutually-exclusive sets of accounts both are true. Unfortunately, that world no longer exists, at least in American courtrooms.

Furthermore, Nifong and supporters like Grace and Murphy and others claim that the indictments themselves also establish "proof" of guilt. (As Murphy said during one appearance on Grace’s CNN show, "Almost 99.9 percent of people indicted are guilty; you do the math.") Of course, the indictments came as a result of the multiple stories, so we now are expected to believe not only that the mutually-exclusive accounts prove guilt, but also the fact that Nifong obtained indictments using them.

One hopes that if this case comes to trial, that the judge will recognize the dishonesty of Nifong’s charges, or that a jury will understand that absurdities are absurdities. I say "hope," because right now, the post-modernists are winning battle after battle. It is one thing when post-modern nonsense dominates a history or English class; it is quite another when it becomes the bedrock of modern law.
November 25, 2006
http://www.lewrockwell.com/anderson/anderson152.html

[Rearden]

I hate to say I agree with Pat, but I agree with you Pat. This case is pathetic.

[Jeff Higgins]

The hand-wringing ninnies are at it again. This case just "feels" right to them. Nevermind that they are gleefully destroying the futures of three bright young men. Nevermind that they are enthusiastically promoting the lies of a useless crack whore that they would never allow in their own homes, or allow their sons to date. It's all for the cause...

[competentone]

Originally posted by Jeff Higgins
The hand-wringing ninnies are at it again. This case just "feels" right to them. Nevermind that they are gleefully destroying the futures of three bright young men. Nevermind that they are enthusiastically promoting the lies of a useless crack whore that they would never allow in their own homes, or allow their sons to date. It's all for the cause...

How does that saying go, "If you lay down with dogs, don't be surprised if you get up with fleas..."

I haven't followed the story in depth, but everything I've heard does indicate that the stripper is some sort of a pathologic lier -- and the prosecutor's office is playing this for all it's worth (they've gotten more than their fair share of 10 minutes of fame), but I see these "bright young men" (to use your term) as more than a little responsible for the predicament they find themselves in.

If you have/attend a drunken party with strippers (we all know that many stripping services are fronts for prostitution), you shouldn't be too surprised if you happen to find yourself embroiled in controversy.

If this thing actually goes to trial, I think it will have been carried too far, but if the prosecutor is just holding off on dropping the charges to make these "bright young men" sweat a little more, I can't say I'm in total disagreement with the action.

[Seahawk]

I have talked with my sister numerous times about this case (she is the prosecutor, or solicitor, for three counties in South Carolina):

She said there is no way she would have moved on the case, that the circumstances surrounding the alleged event needed to be properly vetted, which they still haven't.

[john70t]

I like this one

Originally posted by fastpat
The prosecutor since then has been re-elected three times.

[David]

It sounds like most of voters are black and the prosecutor is playing to them. Sorry if this offends anyone, but if it walks like a duck and sounds like a duck...

[fastpat]

Originally posted by competentone
If this thing actually goes to trial, I think it will have been carried too far, but if the prosecutor is just holding off on dropping the charges to make these "bright young men" sweat a little more, I can't say I'm in total disagreement with the action.

I find your position an outrage. You're advocating using state power to "teach lessons" to someone you think may have violated some sort of moral code that you personally hold. That's about as unAmerican, and unChristian, a concept that anyone can have.

[fastpat]

Originally posted by 125shifter
It sounds like most of voters are black and the prosecutor is playing to them. Sorry if this offends anyone, but if it walks like a duck and sounds like a duck...

That's exactly what is happening. Durham is mostly, maybe 80%, black; the prsecutor is white and just wound up his reelection successfully. He was indeed milking the case for the political mileage it furnished. Apparently there is no "speedy trial" requirement for prosecutions in North Carolina, a state that I lived in during most of my youth, and that is a tragedy and a travesty.

[Jeff Higgins]

Originally posted by fastpat
I find your position an outrage. You're advocating using state power to "teach lessons" to someone you think may have violated some sort of moral code that you personally hold. That's about as unAmerican, and unChristian, a concept that anyone can have.

Exactly. Our legal system is not to be used to make people "sweat" because you dissagree with their morals. It is there to punish illegal activity. If there is any indication that the prosecutor is stringing them along just to "teach them a lesson", then it is the peoples' responsibility to sanction her by removing her from office.

[Joeaksa]

Originally posted by Rearden
I hate to say I agree with Pat, but I agree with you Pat. This case is pathetic.

It pains me greatly but I have to agree with the above statement. These guys are getting the shaft and the procecutor is the one who needs to go to jail in this case.

JA

[competentone]

Originally posted by fastpat
I find your position an outrage. You're advocating using state power to "teach lessons" to someone you think may have violated some sort of moral code that you personally hold. That's about as unAmerican, and unChristian, a concept that anyone can have.

I guess you could say that being a die-hard atheist does make me "unChristian" -- so you got that call right!

As for being "unAmerican" -- I have never considered the idea of a person "ending up being arrested when he is accused of rape" as being "unAmerican."

Investigations take time and evidence is not always "perfect" (unlike people's TV inspired view of police work). It is the jury's job to determine the validity of each side's evidence. It is not your job to determine guilt or innocence based upon what the media reports. (I am assuming the media is your source of information on this case?)

The facts as I know them: A bunch of guys (it sounds to me like "jocks with an attitude" -- I've met the type before) have a drunken party with strippers. One of the strippers goes to authorities and says she has been raped. What do you want the prosecutor to do? Just ignore the accusation because the woman has a questionable background?

I have little sympathy for these "boys" -- just as I have minimal sympathy for the stripper if she was in fact raped -- but I am very aware that the defendants' lawyers are the source of most of the accusations questioning the woman's character/story.

I have my doubts about both sides' stories. And do not mind seeing these "boys" sweat while a thorough investigation is conducted. A little "rough justice" is not something I'm going to get "outraged" over in this case. There are plenty of other injustices that are far more deserving of my outrage.

[David]

If the you saw the piece on 60 minutes or 20/20 or whatever show it was a month or so ago, you would have no doubt that it's about the prosecutor getting votes. Yes a rape must be investigated, but when the facts come in and the only evidence indicating a rape is the stripper's ever changing story then it's time to move on. Even her friend who was there said nothing happened. One boy being charged wasn't even there!

[fastpat]

Originally posted by competentone
I guess you could say that being a die-hard atheist does make me "unChristian" -- so you got that call right!

Atheist have morals, do they not? Or are they bereft of both God and morality?

As for being "unAmerican" -- I have never considered the idea of a person "ending up being arrested when he is accused of rape" as being "unAmerican."

The "Duke Three" were arrested and charged prior to the investigation, based on prosecutorial discretion. Now that the evidence the prosecutor stated he was relying on has proved not to exist, one would expect the charges that weret filed to be dropped immediately, much less remain in force as they have.

Investigations take time and evidence is not always "perfect" (unlike people's TV inspired view of police work). It is the jury's job to determine the validity of each side's evidence. It is not your job to determine guilt or innocence based upon what the media reports. (I am assuming the media is your source of information on this case?)

No, it from someone who's following the case closely, reviewing such evidence when it surfaces. Keeping in mind that there is no evidence that a rape took place, and there is evidence that at least one, perhaps two of the accused were not present when the woman alleges the rape took place. In one instance, the accused wasn't present at all when the woman was "performing".

The facts as I know them: A bunch of guys (it sounds to me like "jocks with an attitude" -- I've met the type before) have a drunken party with strippers.

You've revealed your prejudices yet again. What their attitude was or is is wholly irrelevant. You don't like athletes, we see that.

One of the strippers goes to authorities and says she has been raped. What do you want the prosecutor to do? Just ignore the accusation because the woman has a questionable background?

As an "authority" I investigate to see if a rape actually occured, and when evidence says no rape occured, I stop the investigation.

I have little sympathy for these "boys" -- just as I have minimal sympathy for the stripper if she was in fact raped -- but I am very aware that the defendants' lawyers are the source of most of the accusations questioning the woman's character/story.

Then you're wrong twice in the above paragraph. Number one, your statement indicates that you're not interested in justice, you're interested in some kind of "social justice", which has been the position of Duke University. They've suggested, in print, that they Duke Three should be convicted, not on the basis of having raped the accuser, but on the basis of being white (and in at least one case, wealthy) and hiring a black stripper. Not using the law to punish a crime of violence, but to mete out "get even" sentencing that needed have an actual crime occur. Second, the prosecutor has made numerous statements about the so-called evidence, including actual lies that there is evidence that turns out not to exist at all.

I have my doubts about both sides' stories. And do not mind seeing these "boys" sweat while a thorough investigation is conducted. A little "rough justice" is not something I'm going to get "outraged" over in this case. There are plenty of other injustices that are far more deserving of my outrage.

Again, it's obvious that you don't like rich, white boys who are athletes, apparently thinking that the justice system ought be able to "teach them a lesson" with guns; that idea has no place in America and is in fact about as un-American an idea as I've seen here recently.

[Flatbutt1]

Originally posted by fastpat
[B] Now that the evidence the prosecutor stated he was relying on has proved not to exist, one would expect the charges that weret filed to be dropped immediately, much less remain in force as they have.

[b]

Fastpat is spot on with this case. It should be halted now and the prosecutor investigated.
HIJACK
The "post modernism" bit seems to be current with our foreign policy, does it not?

WMD's can't be found. Well they obviously hid them very well. Therefore they must have existed in the first place. Right?

[Jeff Higgins]

It's amazing how much hatred anyone of priveledge can engender in people. So many people believe these guys "deserve" some form of prosecution, even if it has to be on trumped up charges, because they are rich and white. This lying whore "deserves" her pound of flesh because she is poor and black. The non-contributor, the one who has wasted (and will probably continue to waste) her life gets all the sympathy, no matter the burden she represents to society. Even those that suspect she is lying are alright with that, just to teach the rich white boys a "lesson". Such spite...

[Usmellgass2?]

Originally posted by Rearden
I hate to say I agree with Pat, but I agree with you Pat. This case is pathetic.

+1 here. Nifong belongs in prison. Of course that will never happen. The best the students can hope for is to be found not guilty and sue to recover the hundreds of thousands that will be spent to defend themselves. If their families do not have access to this kind of money their future is grim.

[competentone]

Originally posted by fastpat

You've revealed your prejudices yet again. What their attitude was or is is wholly irrelevant. You don't like athletes, we see that.

....Number one, your statement indicates that you're not interested in justice, you're interested in some kind of "social justice", which has been the position of Duke University....

Again, it's obvious that you don't like rich, white boys who are athletes, apparently thinking that the justice system ought be able to "teach them a lesson" with guns; that idea has no place in America and is in fact about as un-American an idea as I've seen here recently.

It is always hilarious to listen to the conclusions people jump to based upon a few statements one makes in a forum like this!

If your conclusions about this rape case are drawn as hastily and based upon as little "evidence" as those conclusions you have come to about me and the philosophy I hold, then I have all the more reason to doubt the veracity of your argument. (Your conclusions about me are flat wrong.)

You say that you have knowledge about this case "from someone who's following the case closely" -- I've conceded in my first statement that I have not followed the case closely, but if the prosecutor's case is as full of holes as you imply, it should be a "walk in the park" for the defense attorneys to get the facts in front of a judge and get the charges dismissed -- or are you going to tell me that all the judges in that jurisdiction are "prejudiced" against "rich, white boys, who are athletes" (just like I supposedly am) and cannot see what is so obvious to people like you?

I'll say it again, this is not a case where a group of boys were on their way to choir practice and suddenly a "crack whore" (to use someone's earlier description of the woman) leaps out from the bushes and starts screaming "They raped me!"

I am maintaining my position that there are two sides in this story, and that I think the defendants have been very successful in getting their side -- with their slant -- into the media.

I will concede that there are plenty of "jerk" prosecutors -- this may be a case involving one, but if these young men are wealthy as you claim they are, they should have no difficulty finding the right attorneys who will put such a prosecutor in his/her place.

The worst injustices occur when poor innocent defendants are convicted because their public defenders cannot give them an adequate defense against "jerk" prosecutors -- at least in this case (if we accept that the prosecutor is a moron) the defendants can lawyer up adequately.

(I'm sure you'll be able to spin that last comment into something about me being "biased" against rich people -- LOL!)

[91S2]

Can't believe I agree with him, but fastpat is completely right. The community has a bone to pick with the mostly upper-middle class, white student body and this poor excuse for a prosecutor is playing right into it for them.
There's no reason this should be pursued any further.
And the comment about letting these kid's "sweat it out" is completely asinine. There was no crime committed