Susan Estrich
Wednesday, Aug. 9, 2006

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There is a scandal now brewing in the Duke lacrosse case. I'm not even sure whether to call it a rape case anymore. You're about to see why.

Consistent with the procedure in North Carolina and elsewhere, the prosecution has to turn over its evidence to the defense to prepare for trial. There's still more to come, but the bulk of what has been turned over is troubling enough. It suggests a failure to follow standard procedure that is rather mind-boggling.

Consider: The District Attorney went to the grand jury for an indictment before he even performed DNA tests (it turns out there was no match). One of the investigators was still collecting prices for DNA tests while the DA was giving interviews. He announced to the press that he was certain that a rape had taken place before excluding the possibility that the woman's physical symptoms were the result of sex with another man (turns out she'd had sex with her boyfriend within the preceding 24 hours). They were still investigating the woman's whereabouts during the 24 hours leading up to the party, and they had already been to the grand jury. The prosecutor relied on a photographic identification procedure that reportedly violated the standards of his own department. If the discovery is any indication, his case is sitting on quicksand.

None of this means the woman is lying. But at the very least, standard procedure should have been to await the results of tests, and then, given the results, the inconsistencies in the woman's statements, the fact that at least one of the boys seems to have an airtight alibi, investigate further before indicting anyone.

Instead, the train had already left the station.

It doesn't matter anymore why the DA was so determined to indict. His critics will say it was just because he was thinking about his political career. His supporters will say he really believed her, and that a District Attorney has every right to be responsive to the community that elects him. My guess is he really did believe her, but it certainly didn't hurt that he needed to. And one thing is clear: He's not going to change his mind now.

That means this case is going to trial, unless a judge steps in to stop it, which is something that rarely happens.

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And of this you can be sure: No good will come of it. Trials do not tend to be healing experiences. Sides dig in. Things get more contentious, not less. Tempers are bound to flare. Reliving the evening in living color is not likely to be pretty. Hearing the racial epithets again, rereading the e-mails, all of that will not improve race relations, even if it has nothing to do with whether a rape happened or not.

Even before that, there will be the questions of who serves on the jury and what counts as a jury of their peers. Shall we start counting how many minorities there are, how many "Duke" people, how many of "us" and how many of "them"?

If she takes the stand, she'll be slaughtered on cross.

If she doesn't, the prosecution doesn't have a chance.

No one will be convinced that the case was handled fairly.

If even one of the boys is convicted, there will be outrage in the Duke community.

If they're all acquitted, there will be outrage in the black community that three white boys got away with rape.

Conservatives will be outraged that three boys' lives were ruined because an ambitious prosecutor believed a lying "slut" (as in the nuts and sluts defense), which will be played to a fare-thee-well.

Victims rights advocates like me will be depressed because we will worry, rightly, about all the messages being sent to legitimate victims.

And what would have happened if the District Attorney had waited to go to the grand jury, followed the identification procedure, let the test results come in, found out about the boyfriend and investigated enough to learn that one of the suspects had an airtight alibi? He might have decided not to file charges at all, or not to file them against these three young men.

There are reasons you follow procedures. In general, they are there to spare outrage.

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