Sunday, December 31, 2006

Credibility Related To Duke Rape Case

I've been getting an increasing number of anonymous comments on my blog telling me that there is proof that the defendants in the Duke rape are innocent of all charges, as anyone who is smart enough to look at what's available about this case would realize (implying that I'm an idiot when the insult isn't clear or crude enough), and that the alleged victim has zero credibility in this case and must be considered to be a liar.

Besides the call to prejudge this case, there's something else off about these comments.

These people claim to be experts on credibility and evidence yet they hide their identities. For those who are opposed to rape shield laws or who think it is okay for people to reveal this alleged rape victim's identity, this refusal to reveal their own true, legal identities is interesting to say the least.

I know that at least one anonymous commenter is behaving unethically because he let me know he's been leaving comments on other blogs in my name that directly contradict my beliefs. He may think that makes him clever, but it just makes him unethical and untrustworthy. And that rubs off on all those he defends.

As the saying goes with friends like that ...

How do I know whether any of these so-called objective observers aren't paid to spread their message throughout the blogosphere or aren't family or friends of the defendants or their teammates?

Getting paid secretly for writing in the blogosphere has been done and raises serious ethical questions. It raises even greater questions if it is being done to prejudice the public against an alleged victim in a specific criminal case. If there aren't ethics rules that address this type of behavior there needs to be. Defending alleged rapists should be based on evidence not character assassination.

The other aspect of credibility was raised yet again in a comment over at Alas.
Slumpyb wrote:
This woman is NOT worth defending, and she has hurt the credability (sic) of other rape victims.

And I wrote in response:

If you really believe this full sentence then you don’t believe in evidence. But then you are asking us to judge this case based on news stories which often have as a major source the defense teams.
If you really believed the logic behind this sentence then you would be doing everything possible to stop men from raping since it is the men who do rape who hurt the credibility of men falsely accused of rape.

But somehow women accused of lying about rape are worse than rapists. Very convenient for those defending alleged rapists.

There's also something disturbing in saying that this alleged rape victim is not worth defending considering she has been accused of committing a crime by reporting rape. I believe Slumpyb would be horrified at the suggestion that any alleged rapist isn't worth defending and should be tried and found guilty by the public.

Yet he has no problem doing just that to alleged rape victims. How ethical is that?

When people demonstrate a willingness to be unethical, directly or indirectly, they demonstrate that they are not worthy of the slightest bit of trust in what they say.

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posted by Marcella Chester @ 12:15 AM   15 comments links to this post

15 Comments:

At December 31, 2006 4:24 AM, Anonymous Joe said...

I’m one of the anonymous commenters, my name is Joe. I’m not interesting in giving my full identity. You’ll just have to take my word that I’m not paid to leave comments. (I’m doing so at 4:00 am because I’m up with a sick dog.) I’m interested in the duke case because of it’s civil rights issues, prosecutorial misconduct issues and the oddity of this type of abuse happening to the upper class. It‘s more common to see a prosecutor abuse their powers to the detriment of minorities. I’ve never said anything insulting to you on this issue and don’t intend to.

You’re right that we don’t know anything for certain about this case. Although we’ll have more certainty after the trial is concluded we’ll never get to 100%. But I would like to ask is there any circumstance that would make you doubt, or disbelieve the accuser?

I think that this case is attractive to people who are hostile to rape accusations because of how much evidence there is that the prosecution is uncalled for. We’ve already seen misconduct by the prosecutor testified to at trail. I won’t waste your time going over all things reported about this case.

 
At December 31, 2006 7:55 AM, Anonymous Mark said...

"I've been getting an increasing number of anonymous comments on my blog telling me that there is proof that the defendants in the Duke rape are innocent of all charges, as anyone who is smart enough to look at what's available about this case would realize (implying that I'm an idiot when the insult isn't clear or crude enough), and that the alleged victim has zero credibility in this case and must be considered to be a liar."

First, unlike every other country, the English, and American, system of Justice is based on the presumption that the Defendant is Innocent. It is up to the Prosecutor to prove he is guilty. The French system is the opposite. It is up to the Defendant to prove his innocence, as the State bringing charges is considered a presumption of Guilt. As with everything else protected by the Constitution, this only applies to the Government. Not the Citizen. So while it is perfectly OK for you to presume that the Duke Three are guilty just because they were accused, this is not acceptable for the State to do so.
So, no, if you assume that they are guilty, and the accuser is to be believed, you have a perfect right to do so. It does not make you an idiot. Though I must admit, your later remark about ‘paid commentators’ makes me wonder.
However, the State does not have that freedom. The prosecutor is charged to be a ‘finder of fact’. Winning or loosing the case should be of supreme indifference to a prosecutor. His job is not to convict the defendant. His job is to convict the actual perpetrator
When a person reports a crime, the first thing the Police are charged to do as the investigative representatives of the prosecutor is to determine first if a crime was actually committed. In simple terms, the accuser is presumed to not be truthful. If they find that there is a reasonable degree of certainty (note: legal term here) a crime was committed, then they proceed to determine who is most likely to have committed the crime.
To do this they gather evidence under rules that go back as far as 1066. These rules, worked out over a thousand years of trial and error, have only one purpose. Determining the truth to the best of ones ability. Some seem arbitrary. For example, why can’t you introduce at his trial that a Burglar has burgled before? Because it does not provide reliable evidence that he burgled this time. Others are obvious, as in asking a victim to identify his assailant out of a line-up of only suspects. Since there is no ‘wrong’ answer, it does not check the reliability of the identification. No matter who he picks, he is right.
In the Duke Rape case, it became apparent to me within the first few weeks that, given the information I had available through media sources, and assuming that a Rape occurred, at least one of the accused were obviously innocent. Bear in mind that this contradicted all the Media reports. Every one was united in presuming their guilt. The problem was it was not adding up. As time went on, and submissions from the Prosecutor were made to the court (note, not the Defendants or their Lawyers), and witnesses gave statements to the Media (not under oath, remember), it became even more apparent that even the assumption that a rape took place became untenable.
Now is that proof? No. But at least the documents submitted to the Court are considered legal evidence. Luckily for North Carolina, previous abuses have caused them to pass laws that go above the Prosecutors responsibility to provide ALL evidence he gathers to the Defense. It is required that that evidence submitted to the Defense be publicly published and available. It is not a whim of the Prosecutor to turn over evidence. It is a requirement. And it must be done in a timely manner. Weeks at the most. It is not a requirement that he turn over only evidence he expects to use at Trial, either. He has to turn ALL of it over. Especially any that even hints at being exculpatory to the Defendant.
And from the first, it was obvious that the Prosecutor in this case was intent on breaking every accepted rule of evidence and responsibility. It has gotten so egregious that the NC Bar, the legal body charged with investigating prosecutorial misconduct by NC law, charged him with such even before the trial has taken place. According to ‘Legal Analysis’s’ this has never happened before in the United States. That is a strong statement. And they did it before the Prosecutors own witness admitted under oath to conspiring to withhold exculpatory evidence from the Defense and the Court. An admission that destroyed the witnesses own career, and his business. And the Prosecutors latest statement that the victim was unable to testify that a penis was used to orally rape her, despite her sworn statements that she had to spit out the semen onto the floor. Think about it. Can you come up with a credible explanation for that inability that is not contradicted by other sworn statement by the accuser?
Sworn statements from neutral parties involved with gathering evidence from the victim in this case indicate that her story is inconsistent. These are not reporter interviews. These are direct, published, statements under oath from Officers of the Court. And the inconsistencies are not minor. They include identifications of people that could not possibly be correct (one was not even at the party, another had a mustache, despite no one ever seeing him with one before. A third with physical records placing him elsewhere). Changing the actions that took place in major ways. Even the above example with the semen.
All of this seriously calls into question whether the accuser in this case is truthful in her accusation. And none of it relies on statements by the Defense.
There are several tragedies here. One is the apparent false accusation of Rape. No matter what your opinion is, the false accusation of rape hurts true victims of the crime. If for no other reason than it raises the bar in the minds of jurors. Another is the cost of those falsely accused. Sexual crimes are of such a heinous nature that even the accusation carries with it a lasting stigma. And the cost of defending against it are huge. If there was a reasonable assumption that the accused were viable suspects in the crime, this would be one thing. But EVERY OTHER DISTRICT ATTORNEY in the State of North Carolina has publicly stated that this is not the case.
The most tragic of all, though, is other accused in the district of Durham. If a Prosecutor is willing to commit such blatant misconduct in such a high profile case, think of his conduct in the average run of the mill cases he handles day in and day out. I, for one, would not want to rest my freedom in the hands of such a District Attorney.

 
At December 31, 2006 9:16 AM, Anonymous Mark said...

Although my comment has yet to be posted, I feel the need to preempt Joe’ comment a bit. The Duke Rape case has interested me from very early on, and not because I am hostile to rape accusations. What attracted me were the outrageous actions of the DA and the Over-The-Top Racial Accusations of various ‘Public Figures’. Reminded me eerily of a little-known case in Upper New York years ago known by the name of the accuser, Tawana Braley.

 
At December 31, 2006 9:34 AM, Anonymous Mark said...

And the ridiculously absurd reporting about the workings of the Legal system by the Media. Such as 'The Prosecutor is holding back a Bombshell that will Prove the defendants guilt.' Well, the Prosecutor CAN'T DO THAT! By law, he Has To Produce that Evidence in a timely manner!
Or my personal favorite, by a Lawyer no less, on Fox, "They may not be guilty of the Rape, but they should be convicted anyway because of the historic abuses....'
Sometimes my EMail signature comes uncomfortably close to reality "Some people are like a Slinky .. not really good for anything, but you still can’t help but smile when you shove them down the stairs. "

 
At December 31, 2006 10:50 AM, Blogger Marcella Chester said...

Joe:I think that this case is attractive to people who are hostile to rape accusations because of how much evidence there is that the prosecution is uncalled for.

Ah, but this hostility toward rape accusations means hostility toward those who are raped and hostility toward justice for rape victims. I believe this case is attractive to these people because many of them don't care whether this alleged rape victim was raped. To many of them if the charges are true, she got what she deserved.

That hostility also means these people will perceive evidence in a way that confirms their hostility and will dismiss any evidence that calls their mindset and objectivity into question.

They aren't seeking justice for all and the damage their actions have on real rape victims don't matter. If their hostility and the hostility of others scares real rape victims away from reporting a serious crime, they wash their hands of personal responsibility for creating a system hostile to those who have been raped.

Only alleged rapists matter to those hostile to rape accusations.

 
At December 31, 2006 10:58 AM, Blogger Marcella Chester said...

Mark:Sometimes my EMail signature comes uncomfortably close to reality "Some people are like a Slinky .. not really good for anything, but you still can’t help but smile when you shove them down the stairs. "

If it comes close to reality, it is the reality of your character not of the people you see on TV.

 
At December 31, 2006 11:47 AM, Anonymous joe said...

>>Ah, but this hostility toward rape accusations means hostility toward those who are raped and hostility toward justice for rape victims. I believe this case is attractive to these people because many of them don't care whether this alleged rape victim was raped. To many of them if the charges are true, she got what she deserved.

I agree with you. I think those people like this case so much because so many people that aren't hostile to rape accusations also think that the rape charge is bogus.

 
At December 31, 2006 6:08 PM, Blogger Holly Desimone said...

Hi Marcella,
As a survivor of rape, I know personally I was not believed until the conviction. It disturbs me that as a woman raped by an illegal alien my credibility was in question. I know many do not report rape for severals reasons. My interest in the Duke Rape Case is the fact the lawyers have been show casing, most lawyers who do care would be more tasteful in media issues. I hired a lawyer who helped with handling press in my case, more to do with the international issues. I know he always said I must follow the rule of law, I did, BUT the defense team did not. In finding the truth out we see an woman rudiculed before she even gets to testify. To the others who have made comments do you think the three accused in this case will take the stand and speak about what happened at the party? My guess is NO, because most who do commit the crime never take the stand. This case has problems but to blame the victim leads to women in the area possible afraid to report a sexual assault. That is a true concern to me as a survivor of rape, we all know a rape is occurring as I type this comment out. We need to know it is safe to report sexual assault's and the accused need to know if accused a trial process is available to make sure fairness will prevail in the justice system. Thank you for reading this comment Marcella and others who are expressing any opinions.
Sincerely Holly Desimone

 
At January 01, 2007 11:15 PM, Anonymous trvolk said...

"do you think the three accused in this case will take the stand and speak about what happened at the party?"

No, because I do not think this case will ever see a criminal court.

"to blame the victim"

Very few who support the accused are blaming the victim for anything. For many of us, the crime was not the issue, but that a prosecutor was pronouncing suspects in the media as guilty before charges had even been pressed, thereby denying them their civil rights to a fair trial. The crime itself was immaterial to our objections; it could have just as easily been murder. Yet those of us who think this way are being painted with the same brush as the miscreants trolling the forums attacking the accuser. Further, some of us supporting the accused think that they may in fact be guilty, however even that is immaterial in regards to protecting their civil rights.

"We need to know it is safe to report sexual assaults"

The problem here does not lie with the public at large, not even with those who jump to blame the accuser, but with the police and prosecutors and particularly with how these public representatives handle the press. This leads to a point that I rarely see addressed in the Duke scandal, that being: why did the accuser give that initial interview to the local newspaper? Why didn't the police tell her to refuse to talk to the press? The publishing of that article (the one in which she described her employment as an escort), the campus marches, and Nifong's big mouth ignited the national interest and the subsequent outrage with Nifong's actions. The attacks on her character were tangential, and for the most part, they originated in the blogosphere; more news was generated and fact-checked online than through the regular media outlets, and reporters had no choice but to play catch up. Further, the lawyers for the accused were performing damage control, reacting to a crisis that was beyond their doing.

Speaking of those campus marches, they were designed to bring attention to this case, and in that, they were effective. So, more than a little blame for the subsequent attention can be placed on the shoulders of those marchers, and most particularly on the party who printed that Wanted poster, talk about waving a steak before the starving dogs who are men's rights activists.

"the accused need to know if accused a trial process is available to make sure fairness will prevail in the justice system"

The accused are well aware of that since the american justice system is designed to protect their rights, fairness in the criminal justice system favors the accused. If the alleged victim wants justice, she must pursue that on her own through the civil court system, but with the awareness too that a countersuit is likely.

 
At January 02, 2007 8:37 AM, Blogger Marcella Chester said...

Trvolk, I disagree with you that most who speak up against the DA don't blame the victim, in this case and in many other cases where the defendants aren't seen by all as guilty from the moment of arrest.

The only time I've seen the DA's critics back off blaming the victim is when they are trying to say they aren't hurting real rape victims. The number of people who call this case the Duke Rape Hoax highlight this point since that title is a direct attack on the alleged victim. They are making an unfounded criminal accusation -- the very type of accusation they denounce. But since it is against an alleged victim, it's A-OK.

Justice for the alleged victim must be a key part of the criminal justice system or the criminal justice system becomes nothing more than an unjust joke that enables and encourages the destruction of victims during a criminal defense.

Victims do have rights in the criminal justice system and if people act as if they don't or shouldn't have rights, they are advocating for injustice. Saying that victims only rights lie in the civil court is to advocate only for those victims with deep pockets and to excuse defense by character assassination rather than defense by evidence or lack of evidence.

If you are going to blame an action on what set off a reaction (wanted posters, for example) then you must blame unconvicted rapists for what everyone has said and done related to this case. Without them this case would be a non-starter.

The fact that so many boys and men rape and get away with it is the core problem and one that many who speak out against this case consistently ignore or deny.

 
At January 03, 2007 5:12 PM, Anonymous trvolk said...

"Justice for the alleged victim must be a key part of the criminal justice system or the criminal justice system becomes nothing more than an unjust joke that enables and encourages the destruction of victims during a criminal defense."

The nature of investigation, whether criminal or scientific, is to doubt any and all hypotheses, and to remove that doubt by eliminating contradictions and establishing conclusions based on a chain of logically-connected, established facts. Doubt is unavoidably hardwired into the pursuit of truth. On its own the word of an accuser is not an established fact, but an unproven allegation, iow doubtful.

Further, neither victims nor defendants "get justice", because justice is the pursuit of the state. Victims pursue recourse, and defendants pursue exculpation. As I mentioned previously, the state is limited by economic factors: time, staff and financing. A line must be drawn beyond which the state's pursuit of justice becomes infeasible, regardless of truth. Even with the best written procedures, determination of that line resolves to heuristics.

As for defense, "character assassination" IS defense by evidence; pursuing a verdict of "not guilty" means directly casting doubt on the accuser's version of events. The accuser's credibility is not based only on the accuser's record of truths and falsehoods, but also on the accuser's ability to accurately remember and convey details of the events. Further, when a trial commences, the presumption is that whatever events transpired, they did not constitute a crime. The job of the prosecutor is then to remove all reasonable doubt that the events did constitute a crime. The prosecutor must first and foremost elicit from witnesses detailed descriptions of all relevant events, then prove that those events occurred as described by the witnesses (that the witnesses' testimonies are credible), then prove further that those events were criminal, and finally prove that the defendants were the perpetrators. The accuser's credibility is often the very core of a trial; otherwise the prosecutor simply has no case.

The entire process is shrouded in doubt, including the initial investigation. The investigators must convince themselves of the accuser's credibility in much the same way doctors must perform triage. Investigators have far too many cases to investigate each fully. They take a new report, assign it a case number, and shove it off to their lieutenant for prioritizing. Then they either take another new report or they work on assigned cases as prioritized by their superiors.

The economics of the state's pursuit of justice are what underlie the civil rights of citizens of the United States. The state can only do so much; civil rights ensure that the state cuts no corners in its pursuit of justice against defendants. If any corners are cut, including the state's improper grant of credibility to an accuser, then that is a violation of the defendants' civil rights.

Yet you want to wave a magic wand and expect the accuser's credibility to be undoubted, thereby circumventing long established procedures of criminal investigation and the very heart of the american system of jurisprudence; in fact you want to negate the very rules of logic itself. Further, you expect each bureaucracy to possess unlimited resources to fully investigate each allegation of crime without even defining what you mean as "fully investigate". Simple economics, supply and demand, prevents ubiquitous "full investigations". Inevitably, idealism like yours get slammed in the face of practicality.

Many cases will never make trial, many rapists will go free to rape again, many murderers will go free to kill again, and victims and their families and friends face uncompensated permanent loss; life sucks.

 
At January 03, 2007 6:01 PM, Blogger Marcella Chester said...

trvolk:Yet you want to wave a magic wand and expect the accuser's credibility to be undoubted, thereby circumventing long established procedures of criminal investigation and the very heart of the american system of jurisprudence; in fact you want to negate the very rules of logic itself.

No, this isn't what I am advocating.

You are advocating for considering rape victims guilty (liar) until proven to be innocent (victim). I am saying you have it backwards if you don't want to perpetrate systematic injustice upon rape victims.

This isn't how alleged victims are treated when they report a burglary so I am not advocating for something unknown to law enforcement or criminal trials.

If the bias against rape victims existed in burglary cases many real burglary victims would dismissed -- or worse -- because they can't testify for sure whether they locked the door when they left.

Mugging victims would be called liars if 2 alleged victims disagreed about the color of the mugger's clothing. What we understand to be normal for victims in those types of crimes becomes proof of a lie in rape cases.

You clearly understand the basic flaw in your process when it's applied to alleged rapists and how it opens the door to injustice, but seem blind to it when that process is applied to rape victims.

Beginning with the assumption of credibility is not the same as waving a magic wand and throwing out logic.

Just as in burglary cases evidence can show that the victim's story is false. And just as in burglary cases there needs to be proof of the defendant's guilt beyond a reasonable doubt.

 
At January 03, 2007 6:12 PM, Blogger Marcella Chester said...

trvolk:As for defense, "character assassination" IS defense by evidence

No, it isn't. Character assassination of alleged victims is simply character assassination.

It's designed to distract the jury from the real evidence and communicate to the jury that certain victims were asking for it (might as well have been wearing a "rape me" sign around her neck) or couldn't have been raped (she was drinking) or if she were raped that rape couldn't have done any real damage (what's one more to a slut like her).

 
At January 03, 2007 9:31 PM, Anonymous trvolk said...

You are advocating for considering rape victims guilty (liar) until proven to be innocent (victim).

Paint it how you will, but in my book, being skeptical is not the same as calling someone a liar (and if you persist in declaring that I am name calling, then fine, I will wear that badge for you proudly). Further, this concept is not one I advocate, rather it is one that has evolved over the millennia to its current form. Anything else opens the door for governmental abuse of the courts to persecute the innocent.

I am saying you have it backwards if you don't want to perpetrate systematic injustice upon rape victims.

Again with this justice. Victims don't get justice in this country before a conviction. Victims have recourse; that's it.

This isn't how alleged victims are treated when they report a burglary so I am not advocating for something unknown to law enforcement or criminal trials. Mugging victims would be called liars if 2 alleged victims disagreed about the color of the mugger's clothing. What we understand to be normal for victims in those types of crimes becomes proof of a lie in rape cases. You clearly understand the basic flaw in your process when it's applied to alleged rapists and how it opens the door to injustice, but seem blind to it when that process is applied to rape victims.

Okay, this is a strawman, but what the heck. Burglary victims face the same investigatorial skepticism, and many are dismissed out of hand. "Prove you owned the item. Prove it was stolen. Was it insured? For how much? What is the name of your insurance company, since we will be contacting their adjuster? blah blah blah" Note as well, burglaries do not have all that great a conviction rate either.

Beginning with the assumption of credibility is not the same as waving a magic wand and throwing out logic.

As someone who has a long career in both research and forensic investigations, I will just say we must agree, then, to disagree.

"character assassination" It's designed to distract the jury from the real evidence and communicate to the jury that certain victims were asking for it (might as well have been wearing a "rape me" sign around her neck) or couldn't have been raped (she was drinking) or if she were raped that rape couldn't have done any real damage (what's one more to a slut like her).

You do know, do you not, that a judge sits before the court, and any insinuation as you describe is grounds for an objection from the prosecution, and if valid, the jury will be instructed to ignore it? Further, if the judge will rule such abuse as contempt of court.

Without a doubt, victims of crime in this country often get the short end of the stick. Police, prosecutors and judges are only as good as government budgets can attract, and yes, they are hamstrung by complex procedures of evidence gathering that, if not followed to the letter, will benefit the defendant. This is why the accuser must be doubted from the outset, and is doubted from the outset. This has nothing to do with "calling her a liar" or "claiming she asked for it", even if the police themselves are claiming such. They have a job to do and their careers hinge on their diligence.

The changes in the system that you seek would require amending the US Constitution and most if not all 50 state constitutions, as well as changing volumes of legislation and throwing out centuries of precedent. What you propose is a direct attack on civil liberties of which both the right and the left agree are "self-evident". I am all for changing the system, and I encourage you to try, but beware that what you advocate many people will find repulsive.

] Let's look at your way for just one moment and from a legal standpoint, the victim is to be considered truthful. What, then, is the defense attorney's job? To convince the jury that the accuser is a liar, to attack her credibility from all directions, and to be fair to the defendant, those attacks will be boundless. [

 
At January 03, 2007 9:50 PM, Blogger Marcella Chester said...

trvolk:The changes in the system that you seek would require amending the US Constitution and most if not all 50 state constitutions, as well as changing volumes of legislation and throwing out centuries of precedent.
Since the approach I advocate for is currently in use by progressive and well-trained police departments, no constitutional change is required.

What is assumed about the alleged victim by the police and how that impacts the progression of the case doesn't change court procedures or rules of law.

When your approach of skepticism is combined with poor training and ignorance, you get cases like this one where a woman who was raped by a stranger was charged with a crime.

To you that may be acceptable collateral damage, but to me it is unacceptable and the very definition of injustice.

 

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