Will the Duke rape case go to trial?

Wendy McElroy:

The three Duke University students accused of raping a woman in March are not expected to stand trial before Spring 2007. Indeed, among the uncertainties surrounding the case is whether the trial will occur at all or whether charges will be dismissed.

Nevertheless, the preliminary debate that raged like wildfire through the media has changed society's frame of reference for viewing sexual assault cases. For some, the Duke case has changed how they view the criminal court system itself.

It is important to sort through the certainties, questions and probable impact of the Duke case.

The certainties are the easy part. Three young men face criminal charges; their trial has become a key aspect of the district attorney's re-election campaign; their accuser is being accused of making false accusations on one hand and championed by victim advocates on the other.

The questions are meat for informed speculation.

Will a trial occur?

Duke law professor James Coleman, who chaired a committee to investigate Duke's men's lacrosse program, is among those calling for the appointment of a special prosecutor.

He questions the impartiality of prosecuting District Attorney Mike Nifong. It is widely assumed that a special prosecutor would dismiss the case.

Two other turns might cause a dismissal. First, Nifong could lose the November election for District Attorney. Lawyer and county commissioner Lewis Cheek is attempting to be added as an unaffiliated candidate to the ballot; his campaign is a specific challenge to Nifong's conduct in the case.

Second, the accuser who has been in hiding might refuse to participate in a trial. Normally, this would result in charges being dropped, especially in a case that rests upon the accuser's testimony rather than forensic evidence. Nevertheless, the state has the option of proceeding.

If a trial does proceed, is a rape conviction feasible?

The opinion of legal experts seems to be an overwhelming 'no.'

For example, FOX judicial analyst Judge Andrew Napolitano commented upon the significance of the case's negative DNA evidence, "No prosecution has been successfully made since the onset of DNA where DNA actually proves innocence and this prosecutor, I'm sure, ought to know that."

Tawana Brawley II