A Rush to Injustice - Articles

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Posted by: Donald Paine on Mar 31, 2009

Journal Issue Date: Mar 2008

Journal Name: March 2008 - Vol. 44, No. 3

By Nader Baydoun and R. Stephanie Good | Thomas Nelson Inc. | $25.99 | 260 pages | 2007

Nashville lawyer and Duke alumnus Nader Baydoun was so puzzled by what he was hearing about the treatment of the accused Duke lacrosse players that he returned to Duke, did his own investigation, and wrote a book about the case.

In A Rush to Injustice, coauthored by New York attorney and writer Stephanie Good, Baydoun uses his training as a trial lawyer to analyze the available evidence and detail the ways in which the players were publicly dragged through the mud when it should have been clear from the outset that the case should not have been prosecuted.

Although his is not the only book on the subject, TBA members will find his account interesting because, as a lawyer, Baydoun was able to get cooperation and assistance from a number of the lawyers and paralegals who prepared the defense. He was given access to defense material, including a detailed timeline developed to show that some of the accused were not even at the party at the time of the alleged assault. Baydoun's insight into defense strategy makes the book worth reading. For example, when all 46 members of the lacrosse team were ordered to appear at the DNA lab, they hid their faces from the cameras. While normally clients are instructed never to appear to hide, in this case they were specifically instructed to do so because counsel feared that the accuser would be shown the television footage as part of a suggestive identification procedure. (It turns out those fears were well founded.) Baydoun details how the case was handled by skilled lawyers with the resources to track down cell phone records, camera phone evidence, and ultimately the exculpatory DNA reports that were initially withheld from the defense.

Baydoun does an excellent job of setting out the excesses of elected District Attorney Mike Nifong, including: (1) making false and damning statements about the evidence when he had never even met the accuser, (2) representing to the court that an order for DNA testing was necessary because it would "immediately rule out innocent persons" and then taking the position that the exculpatory DNA results that showed the genetic material of multiple males, none of whom had anything to do with the lacrosse party, were irrelevant and having it removed from the report, (3) manipulation of identification procedures, and (4) refusal even to meet with defense counsel to consider defense evidence.

Baydoun also does a good job undermining Nifong's defense of his own actions. Baydoun's interpretation of the problem, however, is that the travesty was the result of a bad person being in authority and that the system should "purge itself of individuals in positions of authority who commit outrageous acts of misconduct, and severely punish those people who commit these acts." Here he misses the chance to evaluate whether there are systemic problems with the fact that there is no real oversight of the prosecution's obligations to present exculpatory evidence. He does not ask why Nifong was able to make the argument that the rules do not specify when exculpatory evidence must be disclosed, so he did not violate any rules by having the exculpatory sections excised from the DNA report. Baydoun also seems to spend an excessive amount of time setting out his theories that the lacrosse players were treated unfairly because of their class and race without examining the more important question of how often things like this happen to people who do not have access to outstanding lawyers who dig deep enough to expose the truth.

As a Duke alumnus, Baydoun was deeply offended by the actions of the Duke administration in failing to support the players, but the sections of the book dealing with the university will probably be much less interesting to the legal community than his description of the available evidence and the way the case was handled by both sides.