- The Washington Times - Wednesday, May 17, 2006

If there is a smoking gun in the Duke University rape case, it is not about the stripper who made the charges or the lacrosse players who have been accused. The smoking gun is the decision of District Attorney Michael Nifong to postpone a trial until the spring of 2007.

That makes no sense from either a legal or a social standpoint, whether the players are guilty or innocent. But it tells us something about District Attorney Nifong.

Suppose, for the sake of argument, the players are guilty. What is the point of letting a bunch of rapists remain at large for another year? What about the dangers they would pose to women on or off the Duke University campus?

Now suppose the players are innocent. Isn’t it unconscionable to have this damning charge hanging over their heads for another year?

The Constitution of the United States includes a right to a speedy trial, to keep people from being jerked around by unscrupulous or vindictive prosecutors who cannot prove they have committed any crime. Prosecutors have to put up or shut up.

This is not a federal case, however, and the laws of North Carolina do not require a speedy trial. Justice delayed is justice denied, whether the players are guilty or innocent.

What purpose does the delay serve? The most obvious purpose is the same one delay serves in confidence games. After a fraud has been perpetrated and it is only a matter of time before the victim finds out, it can still make a big difference whether the victim finds out suddenly or slowly over an extended time. This is called “cooling out the mark.”

If the mark (the victim) finds out suddenly and immediately, instant outrage may lead to a call to the police, who can then get hot on the trail of the con man.

However, if the realization of having been taken begins to emerge at first as a sense of puzzlement, then as a sneaking suspicion, and ultimately — after some time — as a clear conclusion a fraud has taken place, the emotional impact is not nearly as strong. The victim of the fraud may even be reluctant to go to the police, having had time to think about what a fool he seem and how little chance there is now to do anything about it.

If the truth about Bill Clinton and Monica Lewinsky had come out the day after he made that dramatic declaration — “I did not have sex with that woman” — it would have been far more of a shock than it was months later, after more and more bits and dabs of information were revealed, leading many to suspect the truth long before it all came out.

One of Mr. Clinton’s press secretaries called these delaying tactics “telling the truth slowly.”

The announcement that the trial of the Duke lacrosse players has been postponed until the spring of 2007 may be Mr. Nifong’s way of beginning the process of “telling the truth slowly.” At some point, this case will have to be either prosecuted or dropped. If it is to be prosecuted, there is no reason not to go full speed ahead right now. But if it is to be dropped, or if Mr. Nifong knows a judge is likely to throw it out of court, then the time at which that happens is crucial.

It was out of the question for Mr. Nifong to drop the case before the recent election, no matter how flimsy the evidence might be or how much of it exonerates the accused instead of showing them to be guilty.

Even after his re-election, the district attorney cannot let his indictment collapse in public while there is nationwide attention focused on this case 24 hours a day, seven days a week.

What will be different next year? The public will have either forgotten the case or tired of hearing about it. The D.A. can even turn the case over to some lawyer on his staff to take into court and see it either get thrown out by the judge or fail to convince a jury.

We will all be tired of hearing about it by then. We are the marks who will be cooled out.

Thomas Sowell is a nationally syndicated columnist.

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