What can we make of the Duke Lacrosse Rape case?

I don't have a huge amount of time to blog about this right now, but the case clearly cries out for a comment or two from a public defender perspective. Let me make it perfectly clear. Had these gentlemen been from a poor minority neighborhood, had they played a less genteel sport than lacrosse (like, say, basketball), there is a very good likelihood that these people would've gone on trial a long time ago, or at the very least they would have taken a deal on the case.

Why?

First of all, they would have spent the whole pretrial period in custody. They would not have been able to go on TV all the time, looking dapper, standing by their lawyers as the lawyers proclaimed their innocence on national TV.

The typical response from society - oh, these poor guys, what they must be going through, would be totally different if they were poor and minority. Instead, it would've been, what do you expect a bunch of minority basketball players from the ghetto to do? That is, if the case had even been publicized.

Usually, publicity is bad for defendants, unless they're innocent (or the case is extremely weak), like in this case, or the Kobe Bryant case. In these cases, publicity continually points out the weaknesses in the case, and acts a constant pressure point against the prosecutor to show how the initial inclinations against guilt are wrong, and how the person really is guilty. This means that they are constantly scrambling, responding to press leaks, and things of the like, instead of sitting back and watching the defense scramble.

Rest assured, had these been really poor people, there would have been no real presumption of innocence like there was in this case, there would have been no national lamenting that they were being railroaded.

Late discovery? HA! I had a DA one time not turn over any of the evidence that my client was innocent until after the preliminary hearing - a preliminary hearing where she put on evidence and opinions that were completely contradicted by the evidence she suppressed from me until after the preliminary hearing. Why did she do this? Because she can, because she was an evil DA who would do anything she could to get a conviction, and because no one really does anything about it. The DA in the Duke case faces ethics charges, let me tell you, you can probably count on one hand the number of California DAs who have ever even been referred to the State Bar for ethics charges for things like this, let alone actually charged, let alone actually punished.

And finally, depending on the lawyers they got, there is a very good likelihood that these people would've been convicted had they been poor minorities. Without the real presumption of innocence, with the full resources of the state against them, with the word of even just one shaky witness, that is sometimes all it takes. Hell, with the way the California Courts rule on hearsay and things of the like, the prosecution maybe could've gotten a conviction here without even putting the victim on the stand. And there would be absolutely no one to yell and scream about it - except the defendants' families, and no one really listens to them anyways.

And finally, had the DNA evidence come back a year or so later exonerating the defendants, despite the DA having withheld it, plenty of corrupt California Courts would've found that it was "harmless error." After all, just because someone else left semen in her didn't mean that these people didn't rape her.

So, while letting out a nice sigh of relief that these innocent people were exonerated, just remember, there are dozens, probably hundreds, perhaps more, just like them. Facing charges on extremely weak evidence with over zealous prosecutors and compliant courts that will do nothing to stop them.

This case is not a case that can allow us to breath a sigh of relief, and to say "this proves that injustices are caught," but rather one to say "what if," and to wonder what might have been.