Prosecutorial Practices and the Duke Lacrosse Case
First, I would like to thank Dan and all the folks at Concurring Opinions for inviting me to spend some time here. I thought I would dive right into a controversial topic to get things started off and post a few thoughts on the Duke lacrosse case. I obviously have no idea what really happened in the house that night, but it has been a fascinating case to observe from a procedural standpoint as a former violent crimes prosecutor. A couple of developments in the past week have been particularly interesting. First, DA Nifong stated that neither he nor anyone in his office has interviewed the alleged victim about the night in question. I frankly find that remarkable, especially in a case so dependent on victim testimony. When I was prosecuting we would have interviewed the victim early and often, both to help establish the facts and to develop additional avenues of investigation. This issue leads to my second and related point, which is that I think this case is an example of how the much maligned grand jury can actually serve an incredibly valuable function. We used grand juries extensively when investigating violent crimes in Washington, D.C. If I had been handling this case, for example, I certainly would have had every non-charged player who was at the party testify before the grand jury, as well as the second dancer who was at the house that night. Bringing as many witnesses before the grand jury as possible both helps to eliminate surprises like the second dancer’s statements to Good Morning America this week and offers the prosecutor invaluable insights from grand jurors about witness credibility, holes in the government’s case, and the like. It will be very interesting to see if this case leads to any evolution in prosecutorial practices in North Carolina in the future.