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Legal question

As a “sports guy” and a Duke alum, I’ve been following the Duke lacrosse story with a lot of sadness. To say the least, it’s a little embarrassing to see Duke Chapel as the backdrop on one of the yakkity-yak news channels talking about the case. And as someone who’s been through a few campus controversies, I have a natural distrust of protesting mobs, a distrust that’s reinforced by people claiming the media would be making a bigger deal out of this if it didn’t involved privileged kids at Duke and a black woman.

(All the counterevidence you need on that point: All these stories in the News & Observer, all these in the Herald-Sun, more at Duke’s Chronicle and now the national media, drawn there by the stories in the local media. Now please note that this sort of thing unfortunately has happened quite a bit in the past at other schools, and it hasn’t attracted anywhere near the publicity it’s getting at Duke. Yes, it’s absolutely shocking that this happens with such regularity, and I’d be happy if the Duke case forces athletes and athletic departments to confront the problem. But don’t say the lacrosse team is getting a free ride in the media. That’s a flat-out lie that serves no one any good.)

It’s an awkward situation for Duke, to put it very mildly. They’ve put the lacrosse season on hold, which seems a no-brainer. They can’t kick the whole team out of school — many players weren’t even at the party. They’re leaning on the players to step forward and give something more than the simple denial they’ve given. But as the school president, Richard Brodhead, put it, “Duke does not have the power to compel testimony.” And several lawyers are on record saying they either have told the players to shut up or would do so if they were the lawyers.

And that brings me to the questions for any lawyers here:

  1. For the record, why is it so important for someone who might be accused of a crime to be so quiet about it? Particularly if they happen to be innocent?
  2. Is it a conflict of interest for the same lawyer to represent players who were involved and players who weren’t? Particularly with a prosecutor who’s threatening to come after those who may know something and aren’t speaking? Wouldn’t the interests of a player who’d be willing to talk directly conflict with the interests of a player who would be implicated?
  3. Speaking of the prosecutor coming after the rest of the team — isn’t there some sort of limit of liability here? Sure, if you were in the room, you could face aiding and abetting charges. But could he really come after you if you were in the house and not quite aware of what was going on at the time? And if you weren’t there, wouldn’t anything you say be tossed out of court as hearsay anyway?
  4. And speaking of getting tossed out — some lawyers have raised questions about getting DNA tests from all but one player (the one black player) on the team. At least one lawyer said it’s a good bet to get tossed out, and my hunch is the case would be difficult without the DNA evidence. Who’s telling the truth here? Did the prosecutor overreach with the DNA tests?

One thought on “Legal question

  1. I have many, many thoughts on this issue, and none of them are fully formed. Some fragments:

    The Duke lacrosse players are already guilty in the court of public opinion, and it really would not have taken much to do so, unfortunately. A simple wild party with questionable propriety would have sufficed. That there’s a sexual assault and a separate racial taunting that prompted a 911 call makes the whole incident so much worse.

    As for the real courts, I think what the media sources know and what’s actually taking place amongst lawyers are very different. There’s no incentive for private figures like lacrosse players to put on a show for the public. Further silence will be dealt with in the legal process. My best guess is that those players who weren’t involved will eventually have the most serious charges dropped against them.

    Ethically, it’s fine for a lawyer to represent multiple clients in the same matter. The problem arises when representing them would result in a conflict. Unless all 46 were willing to take the fall for the alleged 3, a conflict of interest among clients is going to happen, and the attorney would have to restrict himself to representing a smaller group of clients.

    Taking the CSI approach, the DNA tests will help establish who the perpetrators were, and those people will likely make some sort of plea bargain rather than risk trial.

    The fate of the others at the party is murkier. In a legal system of limitless time and resources, their involvement and resulting punishment could be sorted out individually. But in real life the prosecutor is most concerned with those persons who performed the assault or allowed it to happen. Everyone else is less likely to be prosecuted at all, or might at best be slapped with lesser charges.

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