by Michael L. Seigel (ed). Durham, NC: Carolina Academic Press, 2009. 434pp. Paperback. $40.00. ISBN: 9781594605147.

Reviewed by: Lisa L. Miller, Department of Political Science, Rutgers University. Email: miller [at] polisci.rutgers.edu.


Most readers probably remember well the March 2006 case of the three white Duke University students who were accused of sexually assaulting an African-American woman who had been hired to strip at a party for the university’s lacrosse team. The case initially brought national media attention to race, class and gender power dynamics at Duke and its surrounding community, but when it became apparent that the charges against the students were false and the prosecutions not only unwarranted but unethical, the case was quickly revealed as a terrible travesty. The initial facts of the case seemed impossibly horrible and yet simultaneously, utterly plausible. Few would have guessed that the case would end in the charges being dismissed, the accused being completely exonerated of any wrongdoing, and the District Attorney in the case being disbarred. RACE TO INJUSTICE takes this case as an opportunity to explore a variety of issues, including the dynamics of college communities with respect to sexual assaults, alcohol consumption on campuses, town-gown relations, media coverage of crime, prosecutorial discretion and misconduct, zealous defense tactics, grand jury indictments, eye witness identification, DNA profiling and rape law. The edited volume covers a broad terrain and touches on a number of important issues, most significantly the role of prosecutors in the justice system.

The book is organized into five sections: an Introduction that simply lays out the facts of the case; Lessons Learned about College Campuses, which includes chapters on the response of the Duke faculty to the case, town-gown relations, alcohol on college campuses, male-peer groups and sexual aggression; Lessons Learned about Race, which covers topics such as the role of race and gender in campus and academic reactions to the case, racial politics of the criminal law; Lessons Learned about the Criminal-Justice System, including chapters on free press and fair trials, prosecutorial discretion, the criminal defense system, District Attorneys and unethical conduct, and charging decisions; and Lessons Learned about Criminal Evidence, with discussions of eyewitness testimony, DNA profiling and the treatment of rape victims.

The first two sections are far-reaching, exploring the Duke academic community after the allegations. The opening chapter by Robert J. Luck and Michael L. Seigel provides a chronology of the facts, useful even for those of us who followed the case closely. The subsequent chapters raise questions about the relationship between faculty and their students, and between universities and their surrounding [*610] communities in the wake of a traumatic event. Michele Alexandre’s, Janine Young Kim’s and Michelle S. Jacobs’ chapters each seek to de-mystify the accuser and illustrate the ways in which race, class and gender power differentials can operate even in a case where the wronged parties were white males. Sharon Rush, Robert M. O’Neil and George W. Dowdall take on the more sweeping topics of town-gown relations, academic freedom and faculty reactions, and alcohol on college campuses, respectively.

The most compelling sections are the ones that relate most directly to the particular circumstances of this case: specifically, the role of prosecutor Mike Nifong in continuing to press forward with charges, long after it became clear that the accused were almost certainly not guilty of the crimes that were alleged. In Kenneth Williams’ chapter on Nifong’s conduct, he first situates prosecutorial misconduct in its legal context and then systematically marches through the various allegations against the prosecutor – among which were the failure to disclose evidence, making false statements in court, prejudicing the proceedings, pursuing charges not supportable by probable cause, and intimidating players who remained silent. Williams assesses the claims and makes a compelling case that some of Nifong’s actions clearly violated ethics rules, while others occupied a grey area that is probably occupied by many prosecutors on a regular basis. This chapter is particularly useful because it situates Nifong’s conduct in the larger context of routine prosecutorial efforts to win cases and gain media and public support for their prosecutions. For those who are unfamiliar with the day-to-day norms that govern prosecutorial behavior, the chapter offers a framework to determine just how far Nifong actually strayed. Williams concludes that on several key points, such as failing to disclose to the defense that the DNA test results of the victim did not identify any semen, blood or saliva, making false statements in court, prejudging the proceedings and disparaging the accused, Nifong engaged in clear violations of North Carolina’s Rules of Professional Conduct. On other issues, Williams is less certain and he offers a balanced review of the concerns. At the very end of the chapter, Williams does offer some brief evidence of just how pervasive prosecutorial misconduct is, though for obvious reasons this is a difficult empirical picture to ascertain. He also illustrates how infrequently prosecutors are actually sanctioned for their misdeeds, yet another way in which this case was unusual.

Michael L. Seigel’s chapter on grand juries is also quite revealing. By providing a brief history of the origins of grand juries, Seigel is able to illustrate how far modern grand juries have strayed from their original purpose and how they were particularly devastating for the defendants in this case. Though their purpose was to serve as a check on government abuse of power, Seigel argues, that “a grand jury with traditional safeguards will rarely be in a position to second-guess a prosecutor who is acting with ill motive” (p.293). While Seigel acknowledges that professional incentives largely mitigate against such behavior, he suggests that the costs of wrongful prosecutions to the accused are so high that important revisions to the charging process should be implemented. After reviewing and [*611] analyzing a number of proposed reforms, he concludes that “a grand jury operating as an indictment mill is simply no use to a defendant” (p.301) and suggests that preliminary hearings would probably do a better job of serving as a counterweight to prosecutorial power than grand juries currently do.

The chapter on the defense attorneys for the accused students, by Rodney Uphoff, provides a compelling narrative of the role that the well-trained lawyers for the Duke students played in bringing the facts to light. Andrew Taslitz’ chapter on the conflicts between a fair trial and a free press takes the reader through some of the implications of pretrial media publicity and important legal issues and cases addressing the fairness of judicial proceedings. Lenese Herbert uses a ‘disaster capitalism’ framework to understand prosecutorial discretion. The chapters in this section offer little by way of comparisons between this case and the broader contours of prosecutorial and defense behavior more generally, and the section would have benefited from some original research or, at the very least, from a more thorough summary of existing research that could situate this case within larger questions of injustice in the criminal justice system. Despite these limitations, these chapters explore some of the most intriguing aspects of this case, namely the vast discretionary authority of prosecutors and the substantial resources that defense attorneys must deploy if they are to counter it.

The last section, detailing problems of evidence in the justice system, points to reforms in eyewitness identifications, DNA profiling and rape allegations that might have alerted judges and others in the process to the seriously flawed case. Gary L. Wells, Brian L. Cutler and Lisa E. Hasel have a particularly useful chart at the end of their chapter analyzing eyewitness testimony in which they lay out several recommended identification procedures and compare them with those actually used in the Duke case. At least three of the five procedures that are generally recommended were not observed in that case, and the authors suggest that this failure contributed to the miscarriage of justice. Paul C. Gianelli provides a thorough chapter on analysis of the DNA evidence in the case and its ultimate vindication of the suspects. “In sum,” Gianelli concludes, “DNA did its job. Unfortunately, Mike Nifong did not do his.”

Aviva Orenstein’s concluding chapter seeks to understand whether and how defendants accused of sex crimes may occupy a unique legal space, much as victims of sex crimes do. “I am concerned,” she notes at the outset, “about deriving the wrong conclusions from the Duke case . . . [in particular] the temptation to over-read the Duke case as a cautionary tale about the dangers of legal reforms in sex-crime prosecutions” (p.352). Orenstein suggests that even with the unethical behavior of the prosecutor and the devastating accusations against innocent men, the Duke case nonetheless invoked many standard narratives about race, class and gender, and that efforts to ensure that innocent men are not wrongly prosecuted for rape should not undermine the laws that rightly shield women from attacks on their sexual history and other mechanisms traditionally used to undermine their credibility. [*612]

The breadth of the book provides a wide range of readings for people interested in just about any angle of this peculiar case. This strength is, however, also the book’s limitation. There is little new research, and a number of chapters rely heavily on a single and same source, including the opening chapter’s chronology of events. In addition, it is not clear how the chapters hang together conceptually, other than the fact that they all begin from the facts of the same case. But the facts and trajectory of this case, by many of the authors’ own accounts, are really quite extraordinary, so it is not always clear why this particular case serves as a unifying or illustrative example of all of the issues raised by the book’s fifteen chapters. Nonetheless, I know a lot more about the case now than I did before I read the book and it has the potential to provoke new research possibilities.

© Copyright 2009 by the author, Lisa L. Miller.