Duke Prosecutor's Fourth Victim
Monday, January 01, 2007 
By Susan Estrich
There are four victims of District Attorney Mike Nifongâs twisted tactics in the Duke Lacrosse case.
The first three, of course, are the young men who never would have been charged with anything had Nifong adhered to the standard practices in his own office. With luck, they will ultimately be exonerated, and be able to move on with their lives, albeit after having endured a chapter in hell.
The fourth victim is unlikely to be so lucky; she will not be exonerated at trial, and she will not be able to move on with her life. She will be destroyed by this case, and while she is partly to blame for that herself, the other part of the blame rests squarely on Mike Nifongâs shoulders.
The woman is a liar. That is the English translation of the latest round of maneuvers, in which the prosecution dismissed the rape charges because the woman could no longer say, as she once did, that she had intercourse with three men at the party. In other words, she lied when she said she did ...
Point of View
Ms. Estrich certainly pulls no punches in her recent article criticizing Mike Nifong's behavior amid allegations of prosecutorial misconduct. I commend her, and the other media news writers, now jumping on the anti-Nifong bandwagon, for that.
I just wish everyone - from the DA's office to the community to the news media, would have questioned the extreme inconsistencies in this case from the beginning.
Perhaps that would have saved these young men from the public scorn and humiliation which undoubtedly will follow them all the days of their lives.
Perhaps it would have also saved their families from having to bear enormous expense, in order to keep their sons from being railroaded into serving long term jail sentences for something they obviously didn't do.
And it should have been obvious from the very beginning.
The whole "rape" scenario was just ridiculous!
First of all, when I read that the report of a rape was preceded by a 911 call, from Someone complaining that people on the street were calling them names ... well, the hair on the back of my neck stood on end!
Even before hearing anything about Kim Roberts, there was just too much of a coincidence. Who does that?
And then the whole assault scenario, as described by the accuser, just didn't make any sense - even from a lay person's perspective.
Why were so many pot bangers ready to jump in there, condemning the Duke players, without first examining whether the "facts" made any sense or not? Why weren't the media reporters' famous noses put to use?
One didn't need to be a forensics expert to smell that something was rotten in Durham.
People should have used their common sense nine months ago, instead of just jumping to conclusions because they wanted to either:
a) Get back at the "rich white boys", b) Get back at men in general, or c) Get the highest ratings.
Justice is not about promoting one's agenda. Justice is not about getting back at someone because of past injustices. Justice has nothing to do with seeing who can get the highest TV ratings.
Justice is about protecting the rights of our citizens - every citizen!
Our constitution does not allow us to pick and choose. Our constitution provides rights to everyone, no matter their race or station in life, and it specifically prohibits violating those rights.
As the old saying goes, it's better that ten guilty men go free, than one innocent man go to jail.
For some reason, that didn't seem to matter to a lot of people.
And those people should be ashamed of themselves.
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The first person who should be ashamed of herself is the accuser.
Yes, I still refer to her as "the accuser". While I know everyone under the sun is naming her now, my own training, protecting the name of all accusers, is too ingrained in me now, and I just can't bring myself to name her.
But she knows who she is and what she did. And she knows how many lives, how many careers, she has destroyed with her false accusations.
I respectfully disagree with Ms. Estrich on one thing. I do not believe this woman is a victim of anything.
Rather, I believe the "system" , her community, and all of the Lacrosse players have become her victims.
I believe that she is a "user", a manipulator of a system she well knows. She's been around the block. Even in her impaired state, I believe she knew what she was doing.
She knew well enough to refuse the original police officer's request to get out of Kim Robert's car. She knew well enough to respond, "Yes" to the inappropriately asked question, "Were you raped?"
It's easy enough to answer yes, when you don't want to get locked up. She knew the ropes. She knew she had just been given the way out. So what if she manipulated the system? What had it ever done for her?
Worried about being taken away from her kids? I doubt it. Not too much anyway. Worried about being taken away from her ... ugh ... "medicines"? I think that's probably more like it.
Those exhibiting drug seeking behaviors will often go to extreme lengths not to have their drugs taken away from them - or them away from their drugs.
This woman might have thought that she would be taken home afterwords. That would explain her changing her claim after leaving the hospital, telling the police officer, instead, that she wasn't raped.
However, something happened at Duke. She changed her story again. This time, she claimed she was raped again. The police officer made a note that she refused to even talk to him after he confronted her.
That action alone tells me a lot. It indicates to me dishonest behavior. It indicates to me that she didn't want to be confronted with the fact that she was telling different stories.
Most people don't like being confronted with their own lies. It makes it hard to keep telling those lies when someone is standing there, obviously not believing them.
It's true that many victims aren't comfortable talking with the police. That's because they feel shame and embarrassment, not only about the assault, but because of having to talk about such intimate details with strangers.
But that's not the case with this accuser. First she said she was raped, then she wasn't, then she was .... She couldn't keep her stories straight. This is totally different!
I believe the accuser made a conscious choice, while at Duke Hospital, before being seen by the nurse, to proceed with her false accusations. My personal belief is that she was trying to score prescriptions - hence the "extreme vaginal pain" she supposedly exhibited in the SANE exam.
I believe that when she didn't get any prescriptions from Duke, she headed over to UNC the next day. There she complained of neck and back pain and hitting her head. Well, she got lucky there, even though a physician wrote a note warning of her risk for abusing drugs. She got her Percocet.
That of course, was followed by her performance in front of Sgt. Gottlieb, at her home. A performance, I might add, that had any experienced nurse been there to witness, probably would have been laughed at.
Experienced nurses are not dummies. We deal with manipulation and drug seeking behavior in the clinical arena all the time. We know how to look for the truth. Through our years of experience, we have fined tuned our senses, so that we can usually spot over-acting - not always, but usually.
Unfortunately, since the police do not have the same medical background, they may not spot this type of behavior as easily. They can't be expected to know the legitimate - and illegitimate - signs and symptoms of neck and back pain and how it may relate to drug seeking behavior.
For this is what I believe it was. I believe the accuser's behavior, in front of Gottlieb, was an attempt to have on paper some kind of validation for her "pain", so that she could continue to get prescriptions.
I believe that's why she told them about the bruises suddenly appearing. It was further validation. Perhaps she didn't remember having her picture taken at the Duke party. Pictures with the bruises already showing.
To give Sgt. Gottlieb the benefit of a doubt, here he was, interviewing this woman again who had claimed being hit, kicked, strangled, and raped. She was having trouble moving and sitting. She was limping. She had bruises. She had been seen at UNC and been given Percocet for "extreme pain".
I believe that this whole mess began because of drug seeking behavior and her desire not to be locked up.
Of course, I believe she got herself into a bit of a bind after finding out the DA planned to prosecute the case.
But by then, people were holding rallies, screaming and yelling and pot banging, saying those rich, white boys needed to pay for all the injustice blacks have had to suffer. Reporters were everywhere. Even good old Jesse Jackson was offering to pay for her tuition.
Well, gee, what was a girl to do?
Other Issues:
As much as I hate to say it, I feel it was a mistake to ask the accuser if she had been raped. I am not one to publicly criticize my colleagues. I have nothing but the greatest respect and admiration for all of them.
I know what we have to go through to get trained and how hard we all work. We are all taught to be strong patient advocates and we do that very well. Perhaps too well at times.
I don't know what they've been teaching in nursing school since I was taught 30 years ago, but we had it drummed into our heads, from day one, the correct and incorrect way of interviewing patients.
When asking questions, we are not supposed to supply them with answers. Throughout our careers, we often deal with patients who have mental health issues. To supply them with answers to our questions is courting disaster. This case is a prime example!
We don't say things like, "Were you raped?" I can't figure out why the nurse even asked that question. So she was upset. A lot of people get upset. That doesn't mean they were raped. If I were the accuser, I would be upset too if I was about to get locked up!
Even so, the accuser should not have been asked that question like that. She should have been asked something like, " Did something happen?" " Do you want to tell me about it?" or "Tell me what happened." That puts it right back on the patient to say what did or did not happen. She's telling us. We're not telling her!
Never once have I asked a patient, " Were you raped?" Instead I say, "Tell me what happened."
Again, I don't wish to criticize. However, I believe it was a mistake to have a nurse "in training" doing the SANE exam without another experienced SANE nurse present. I realize a physician was present. However, few physicians take the SANE training course.
I searched on line for the physician's name in the Duke, local, and state physician directories. It didn't pop up. The only place I found her name was in a near by state.The physician, under that name, was practicing in Internal Medicine, which deals with general practice issues like Diabetes.
According to the NC state Board of Nursing, that nurse's initial RN licensure shows a date of 8/05.
According to an article written by Ms. Levicy, she had a BA, not a BSN, and she was working at Planned Parenthood in 2003, in a non-nursing capacity. If the information is correct, it appears that Ms. Levicy was an RN for about seven months before doing the SANE exam. I'm hoping the information, or my interpretation, is incorrect.
I checked for the NC SANE requirements. I could not find anything. In our state, we're required to have experience in either Critical Care or Maternal / Child Health before taking the SANE course. Most nurses don't go into this field without having many years of experience in other areas. Most of my colleagues have at least 20 years nursing experience.
After taking the course, it generally takes our nurses about a year to get the extra training required, in order to get the state certification. That training includes, among other things, going to court, police ride alongs, completing so many internal GYN exams, and being trained / observed by experienced staff FNE's. Afterwords, we're responsible for continuing our education through college courses, on line CEU's, conferences, and seminars.
Even when we receive our state certification, that doesn't mean we're ready to be qualified as an "expert" in court. When I first started working, I was taught by my superior that we can testify as a fact witness but not as an expert witness until we get more experience. We have to get so many cases under our belts first.
There's an important difference between the two. A fact witness can testify as to the facts observed. An expert witness, however, can render an opinion. Testifying as to whether injuries were "consistent with" a sexual assault would be an opinion.
Mens Rea
One of the first things we learned about in my paralegal criminal law class was Mens Rea. Intent.
According to Criminal Law and Procedure, Third Ed., by Daniel E. Hall. J.D., Ed.D., "Mens Rea is the mental part, the state of mind required to be criminally liable. It's often defined as a "guilty mind" or possessing criminal intent ... most criminal laws require intent of some degree before criminal liability attaches to an act."
In most cases, to be guilty of a crime, there must be intent. So I have to ask. What was the intent and where did it lie in this case?
Sexism is, is not a problem in society
Posted by: Steve | October 02, 2007 at 09:20 PM
Ms. Levicy indicated in 2003 she was going to enroll in an NP program. If she indeed did that, she could be in her clincals and thus doing SANE by virtue of the NP (shudders).
If not, as it now appears, Duke allowed a nurse who is barely off Graduate Nurse probation do a SANE exam, I would have to call into question the competency of the Nurse Manager for Duke ED. I would feel that way even if Ms. Levicy was in NP clinicals given her extreme lack of experience.
Excellent post!
Posted by: Kethra | January 02, 2007 at 01:35 PM