Brief Thoughts on The De Anza Case

I've seen some mention in the blogsphere of this case, so I looked into it a bit, and decided to offer a little commentary from the legal perspective.

Most of what I've read about the case is outrage on feminist sites that there were no charges filed. One of them said basically "She said she was raped. I believe her. End of story." While that is certainly a strong sentiment of support, one I'm sure the complainant in the case appreciates, that really isn't how the legal process works, and further, it loses a bit of its punch when you consider that, unfortunately, the complainant was so intoxicated that she did not remember any details about what happened, so she isn't the one who is to be believed or not. There were three other women at the party who stated that they saw what was going on (though they were somewhat intoxicated themselves, I think) and pulled the complainant out of there, making those three women heroes.

The indignation, then, is that there were no charges filed because the DA found that there was "insufficient evidence" to proceed. Many blogs (pretty much all of them I read, but I don't claim to have combed the blogsphere or even just the feminist blogsphere about this case), seem to take that to mean that the DA concluded that no rape occurred. But this simply isn't so. "Insufficient evidence" in legal terms isn't just about whether there was a crime, but whether you can prove beyond a reasonable doubt that a specific individual (or individuals) committed all elements of the crime. You could have "insufficient evidence" with regard to a murder, for instance, when there is clearly a dead body killed by homicide. It isn't about doubting that a crime happened. It is about whether you can actually convict someone of that crime.

None of the descriptions of the case from the various news accounts I've read on it indicated the names of ANY suspects. The three women who rescued the complainant did not name any names that I could find. Perhaps it was because it was dark or hard to see, perhaps because they were intoxicated, perhaps because they simply did not know any of the men involved and so did not see them long enough to accurately describe them or identify them in photo lineups later. But if it is the case that the complainant doesn't remember and her rescuers can't help with that, then already you are in trouble as far as a prosecution goes.

And further, if it truly was eight or more men and each contributed DNA, then it makes it very hard for a DNA test to match to any particular person - it is all mixed up. I don't know the exact numbers, but I imagine that after you have a certain number of contributions, DNA becomes almost useless, particularly if you can't even come up with a name of a single person to test.

So lacking any witness IDs and lacking any useful DNA evidence, really, what can the DA do? You can't prosecute a crime by simply declaring "I believe the complainant was raped" and then magically conjure up someone to convict. You have to positively identify the defendants. If you can't do that, you're done. And it isn't because you don't believe the complainant and it isn't because anyone doesn't think there was a crime, and it isn't some "patriarchal" conspiracy to let rapists get away with it (though obviously the perpetrators themselves know what they did if they were not otherwise too drunk to remember, but then no one expects any perpetrator of any crime to simply turn themselves in).

For those who wonder why the DA can't just put it before a jury and let them sort it out, I point out first, that it WAS put before a grand jury and they did not find probable cause to file charges against anyone. And further, it is UNETHICAL for a DA to file charges when there is legally insufficient evidence for a conviction. (See what happened to Nifong.) Though despite that, rarely are DAs called to task for filing charges on weak evidence. And further still, even if a DA did unethically bring charges and then had a trial and even convinced a jury to convict, if the evidence is legally insufficient for the defendant(s), a judge will simply reverse the conviction, as they are ethicially obligated to do, and because of double jeopardy (in my state at least, but probably in all), that defendant can NEVER be charged with that crime again. So if it turns out they really are the guilty one and you uncover later evidence that proves it, it is USELESS, and they get off scot free. Which is a VERY good reason not to bring any charges when you have legally insufficient evidence to support them.

Now, as to the specific facts of this case, this is all really speculation. I don't know what evidence there was beyond what was mentioned in various news reports. And neither do any of the other bloggers who have posted about this. Only the Sheriff's Department there and the DA's office knows, and they aren't releasing that information. Which brings me to something else that is a bit of a pet peeve of mine. People judging legal issues based on specific cases where they DON'T KNOW WHAT ALL OF THE FACTS ARE IN THE CASE. My favorite example of this is people who get all red in the face about lawsuit abuse and cite the infamous McDonald's Coffee case as an example, showing that they clearly have no idea what they are talking about.

A more personal example is when I've worked on appeals cases. Reading the briefs from each party, briefs that actually cite to the record and are far more detailed about what is going on in a case than a typical press report about a case would ever be, you still get a slant one way or the other that can make a case seem completley different depending on which brief you read. Only by reading through the whole record yourself, all of it, can you really see what is really going on, and sometimes I've found that neither party has given a very accurate picture, either on the facts or on the law. In other words, until YOU read a case with that much detail, odds are you really don't know what you are talking about, so perhaps the best course of action is to reserve judgment, or at the very least, couch any conclusions you draw as being limited in quality to the information available.

That's what I suggest about this case. Take a deep breath. Realize that you don't really have all of the relevant facts. And realize that there are severe problems if there is insufficient evidence to identify any perpetrators, as I indicated above. Sure, it sucks that a crime goes unpunished. But calling for the heads of unspecified people, perhaps skipping the legal process, is the way of anarchy, and that only creates more crimes and more victims.

So while I can appreciate the emotions this can bring, I think this has been an example of a misunderstanding about the legal process. I don't know what happened; I wasn't there. I don't know why the DA did what she did. But I do know that those who are pounding on this as if they did know what happened really don't know and therefore don't know what they are talking about, and it is disturbing to me to see so many dire conclusions drawn from such scant evidence. Dire conclusions from scant evidence is what leads to lynchings and other things that represent the baser instincts of humanity. I hope cooler heads prevail. I also hope that they do find out exactly what happened and who did what and then those who broke the law are brought to justice.