The Duke “rape” case was won by good defense lawyering, writes lawyer Randy E. Barnett, and don’t you forget it next time you tell a lawyer joke.
When innocent people go to jail is is usually because of an incompetent defense.
In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages.
In a competent legal system, moreover, the defense has a difficult problem. If the prosecutors are competent then people tend to assume that anyone accused of a crime is probably guilty.
While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.
So if you are accused of a crime and you really are innocent, you have to prove your innocence. That means that you have to hire good defense lawyers. And the Duke case defense lawyers were good.
Their skillful questioning at pre-trial hearings revealed the prosecutor’s misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.
All’s well that ends well. Just don’t forget how much you depend on a good defense when the legal system says: “J’Accuse!”
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