Loretta Lynch, who has been nominated by President Obama to replace Eric Holder as Attorney General, took part in a 2007 panel discussion at Duke Law School prompted by the Duke lacrosse rape case. Lynch’s comments provide insight into her mindset and raise unsettling questions about her commitment to equal justice and the rights of the accused.
The event took place on September 28, 2007. The wounds were still raw for members of the Duke lacrosse team, their families, and in a sense, the entire nation. That same month, Michael Nifong, the former District Attorney who had knowingly pursued false rape and hate crime accusations against three teammates, had been found guilty of criminal contempt of court.
The title of the session, moderated by Duke Law Professor Thomas Metzloff, was “The Practice & Ethics of Trying Cases in the Media.” On the panel with Lynch, who was identified as Loretta Lynch Hargrove, were three current or former prosecutors. Metzloff opened the session by posing this question:
We had a case in Durham, everyone knows about it, infamous, famous, whatever you want to describe it, and we had a prosecutor who, for a period of three weeks, was saying lots of things on TV.
What is the message that’s learned from that period of time, that series of events with Mike Nifong?
Lynch went first:
So I approached it from the view of a former prosecutor but also someone who grew up in Durham. And I’m very familiar with sort of both sides of the community. And there is a bit of a community divide whenever there’s a large campus in town, but I think that one of the things that we look at from the Nifong case is how do you find that balance as a prosecutor between how you deal with the press, since that is the focus of this conference, between, obviously, things that should not be said but obviously… but also the very real responsibilities that prosecutors have to interact with the process.
So instead of an unequivocal condemnation of the worst misconduct in which a prosecutor can engage – the charging of persons he or she knows is innocent – Lynch seeks “balance.”
Lynch eventually gets to her answer about “lessons”:
So I think those are some of the first lessons that we learn from that, is the need for further study and the need for better training and the need to find that balance.
Better training??? Would Nifong have not made his false accusations if he had just gone to a Justice Department seminar?
Nifong lodged the false charges because he perceived it to be in his political interest to do so. Although despicable, his actions were rational. He recognized the triumph of group-identity politics, whereby alleged offenses by whites against blacks get far more attention, and evoke far more moral outrage from the political and media class.
Lynch fails to address this problem at all. Indeed, those responsible for her nomination, Eric Holder and Al Sharpton (according to Sharpton), have spent decades promoting race-based judicial outcomes.
Lynch went on to acknowledge one of Nifong’s most egregious acts, the withholding of DNA evidence that would have cleared the lacrosse players, but she admitted to being less troubled by Nifong’s frenetic, public framing of the athletes, using the media as his instrument in his attempted destruction of their lives:
Also, I will tell you again, that as a former prosecutor…many of the substantive problems that he (another panelist) presents in terms of violations of substantive federal criminal procedural law were so much more serious and so much more egregious that every prosecutor who learned, for example, that exculpatory DNA evidence had been withheld, everyone just shuddered in their boots at that. And initially the comments that were made, while inflammatory, were not what set, for most prosecutors, the nails on the chalkboard reaction to the overall case.
Lynch may not have been accurately speaking for “most prosecutors.” Fellow panelist Marsha Goodenow, for one, responded immediately and forcefully:
The lesson that I think should be learned, that I do not think has been learned nor ever will be learned, is that a criminal defendant has a right to be tried in a courtroom. And the media does not have a right to try them in the paper. I don’t know that that will ever be learned. I wish it would be learned. I wish that the parties to criminal cases would try their cases where they should be trying them. The aftermath of this is three young men who now have been declared innocent certainly weren’t perceived by the media or this country as being innocent. They received death threats; all kinds of things happened to them because of this public’s insatiable desire to know everything whether it’s been confirmed or not, whether it’s true or not, and the right that they think that they have a right to know instantly what the evidence is. I’m not saying that the media and the public doesn’t have a right to access to our courts; I’m saying they have a right to the access to our courts when the case is tried in our courtrooms.
Later in the discussion, Lynch succeeded in bringing the issue for her into focus:
…I guess where you stand depends on where you sit – but even with the statements as a DA I’m going to be tough on crime, there are people who take that and have taken it for years because it has meant for years I’m going to be tougher on African Americans, depending upon the context, depending upon what else is being said in an election, depending upon what other issues are brought out there. So there are times when these statements need further explanation because on the surface they say one thing but people really hear something else, and it’s informed completely by their environment and often their history.
For Loretta Lynch, there is apparently only one subtext for everything, and that subtext is race.