Sunday, November 18, 2007

Attorney Spilbor Knew; So Did Duke

Duke President Richard Brodhead and his supporters use Duke Hoax myths to excuse the University's bungled and shamelful "throw them under the bus" response to Crystal Mangum's and Mike Nifong's lies and the prejudices of many of its faculty.

The myth they most frequently use goes something like this:

It was a really, really confusing time. The facts kept changing. The issues were so complex. Who could have known?
But the truth is very many people knew within a few days or weeks that what the Raleigh News & Observer said on March 25, 2006 about a young mother’s “ordeal” the N&O claimed ended in “sexual violence” was “a crock,” and very possibly part of something much worse.

I’ve posted before on a few of those people. Remember, for instance, citizen journalist McClancy, blogger Barber, and columnist Sowell?

Today I want to recongnize attorney and FOX News consultant Jonna Spilbor for what she posted at Findlaw on April 14, 2006; and for what it helps us understand about Duke University's Hoax response then and now.

April 14 was four days after the public announcement the first DNA testing had come back negative, and three days before Collin Finnerty's and Reade Seligmann's fraudulent indictments.

What follows are excerpts from Spilbor’s April 14 posting ( “The rape that never was” ) after which I comment below the star line.

Spilbor excerpts:

From the beginning, attorneys for several team members were clear: "They didn't do it."

It was a gutsy defense -- especially since, at such an early stage in the investigation, the only evidence supporting it was their clients' wholesale denial of the accuser's account.

A safer strategy might have been for the attorneys to wait to see how things played out, and consider whether to argue, instead, that the evidence indicated the victim had consented.

But when the DNA tests came back, the attorneys were vindicated. . . .

Yet the Durham, North Carolina District Attorney, Mike Nifong, has vowed not to drop the case.

In this column, I will explain why he's wrong: In the absence of DNA, he should, indeed, drop the case - both because the evidence strongly indicates the players' innocence, and because it means he will never be able to prove their guilt.

Is "Conclusive Evidence" of Guilt Also, If Reversed, Conclusive as to Innocence?

The D.A.'s written request for a court order to obtain those forty-six DNA samples stated that DNA testing would provide "conclusive evidence" as to which three lacrosse players allegedly assaulted the accuser.

This phrasing poses a compelling question: If DNA can be considered convincing evidence of guilt in sex crimes, as the DA himself argues, shouldn't the absence of DNA evidence provide equally convincing proof of innocence?

D.A. Nifong argues, instead, that the lack of DNA "doesn't mean nothing happened. It just means nothing was left behind." He has pointed out, in addition, that rape prosecutions can go forward - and convictions can result - without DNA evidence. According to Nifong, in 75 to 80 percent of all sexual assault cases, there is no DNA to analyze.

But those cases aren't like this one - for several reasons.

Why, In This Case In Particular, the Absence of DNA Indicates Innocence

Often, women do not report sex crimes for days or weeks - washing much, or all, of the DNA evidence down the drain long before police and prosecutors can collect it. But not in this case. Here, the victim submitted to a "rape kit" examination only hours after what she said was the time of the alleged attack.

Often, rape is accomplished by fear, not force. But in this case, the crime alleged was brutal and barbaric. The accuser said, for instance, that her acrylic fingernails were torn off as she tried to defend herself.

And often, an attacker will use a condom precisely to destroy the chance that he will be caught via DNA.

But here, the alleged victim made no mention of any of her attackers using a condom. (Also, while a condom might prevent organic DNA from being deposited on or around the accuser, it would have left its own trace evidence, especially if coated with spermicide. Here, it appears that no such evidence was found.)

For all these reasons, it seems very unlikely that if the attack alleged occurred, none of the attackers' DNA would have been collected from the accused's body or clothing - or from underneath her fingernails.

D.A. Nifong has pointed out that the accusers' clothing could have protected them - but their hands, face, and necks likely remained exposed. What is the chance that the accuser would not have made contact with any of their hands, faces or necks if a brutal attack truly occurred?

Another Problem with the Prosecution: Apparent Failure to Identify the Alleged Attackers

Of course, the D.A. is technically correct that a rape prosecution may proceed upon an accuser's word alone. Indeed, sex assault cases often boil down to an accuser's word against that of the accused.

But there's a second problem here, besides the lack of DNA evidence: It appears - from news reports, and from the testing of all forty-six white players - that the accuser is unable to identify her alleged attackers. (It also appears that the other stripper who attended the event did not witness the alleged attack - for the prosecution has not cited any witness in its favor besides the accuser herself.)

The accuser's inability to identify any one of her three alleged attackers is very strange.

Reports indicate that she arrived at the party, was paid in part for her anticipated services, and may have performed, at least for a short while. It seems that she should have had ample opportunity to eyeball many of the guests before the alleged attack, including the three who allegedly committed it.

Also, even if the three attackers were initially lost in a sea of forty-plus faces, shouldn't she have seen them during the attack itself - said to have occurred in a room no bigger than a closet? . . .

Spilbor's entire Findlaw post is here. See also this post: Duke Lacrosse: A good attorney and a lousy DA. (6/8/06)



Spilbor is an intelligent, able and experienced attorney. Duke University had access to a great many such attorneys.

How is it possible then, that President Brodhead, Duke's trustees and "Dick's senior team" didn't know and understand everything Spilbor posted on April 14, 2006?

Duke knew, didn't it?

Yet as late as mid-December 2006, Brodhead had still said nothing critical of Nifong and was supporting Nifong's scheme to put the three obviously innocent Duke students on trial.

Spilbor's post makes glaringly obvious the failure of Duke's leaders - trustees, administrators, faculty with few exceptions - to act responsibly in the face of obvious lies and threats against its students.

Does anyone doubt that as we learn more about the Hoax case, it will get uglier and Dukier?

Given that, it's easy to understand why Duke's BOT chair, former Wall Street whiz Robert Steel, keeps urging us to buy into MoveOn.Duke.

There's more I could say but I want to give you a chance after I end with: Congratulations, Jonna Spilbor.


bill anderson said...


Excellent job. The truth was apparent from the very beginning. However, we have to understand that the Duke administration and faculty WANTED the charges to be true, and when it was obvious the whole thing was a lie, they simply shut their ears and repeated the same tired mantra.

Remember that Bob Steel told Jason Trumpbour that the case needed to go to trial, and even if their was a conviction, it would be overturned. He also told LAX parents that he believed "something happened."

With irresponsible statements like that coming from the leadership of Duke University, is it any wonder that Brodhead deliberately ignored the truth? People do not want to believe the worst here, and I can understand their point. However, sooner or later, we find that the truth is a very, very ugly thing, or at least the truth exposes something very ugly about Duke University.

Anonymous said...


This is just another nail in Duke's coffin.

The cancer that infects this institution must be surgically removed before any healing can take place. No parent should send their son or daughter to a university run by bigots.


wumhenry said...

KC Johnson and Stuart Taylor are very critical of Brodhead in their book, but they don't go so far as to say that he wanted the charges to be true, no facts reported in the book would sustain a reasonable suspicion that he wanted that.

I was an early and persistent critic of Nifong & co. in the TalkLeft blog's discussion forum, but I don't agree with those who say that Brodhead should have publicly rebuked Nifong or opined that the defendants were innocent early on. It would have been imprudent and unseemly for him to issue a public pronouncement on the merits of the case back in April or May 2006, for instance, when it wasn't clear what incriminating evidence Nifong might have and before the trial judge had ruled on any defense motions. It would have been widely perceived as an attempt to exert undue influence and would have exacerbated the strain in town-gown relations.