The Peculiarities of the Elmostafa Case

The longer the Duke lacrosse case proceeds, the more disturbing signs emerge. Certainly Sgt. Mark Gottlieb's typed, four-months-after-the-fact notes, which Stuart Taylor denounced as "transparently contrived" and "unworthy of belief." But yesterday's determination that cab driver Moezeldin Elmostafa was not guilty of a 2003 misdemeanor charge (aiding a shoplifter to whom he gave a cab ride after her crime) also does little to increase confidence in Mike Nifong's ethical core.

The case itself appears to have been laughably weak: according to the N&O, "a former former store security officer testified that he saw the woman get into Elmostafa's cab, which sped away even before the woman could close the door." But Nifong's office possessed a videotape contradicting the security officer's testimony, and no one else claimed that Elmostafa did anything wrong. So why, then, would the district attorney bring the case to trial? It's hard to avoid the inference that this was payback to Elmostafa for coming forward very shortly after the arrest of Reade Seligmann to confirm that he had given Seligmann a cab ride at the time of the alleged crime. Elmostafa's testimony has subsequently been confirmed by Seligmann's cellphone records, a videotape of Seligmann at a Wachovia ATM machine, various other unimpeachable electronic records, and the affidavit of the other person in the cab, Rob Wellington. But at the time that Elmostafa swore out his affidavit, none of this evidence was known to him. So what he did took courage.

There were three disturbing items that emerged from yesterday's court session, two involving discovery file material not previously known:

1.) The existence of Elmostafa's undelivered warrant (one of thousands in Durham County) was discovered not by the Durham Police, but by Nifong's case investigator, Linwood Wilson. Wilson was last heard from interrupting a press conference by defense attorney Joseph Cheshire to claim that nothing in the 1800 pages of the discovery file suggested that the accuser had ever told differing stories about her alleged attack, only to be humiliated the next day when Cheshire released a police report from the file (that Wilson claimed to have read) in which the accuser asserted that five people raped her.

Regarding Elmostafa, Wilson claimed that the warrant's discovery was routine, the sort of check he does on every witness; "it has nothing to do with putting any kind of pressure on him," said the investigator. But Nifong's office was blindsided by revelations that the accuser had previously filed a charge that she was gang-raped by three men.

Is Nifong's investigator seriously claiming that he does a more thorough background check on potential alibi witnesses for the defense than for his office's own chief witness?

2.) Nifong's office has repeatedly denied any connection between the arrest and the lacrosse case. Yet the notes of Inv. B.W. Himan revealed in court yesterday showed that "Mr. Nifong wanted to know when we picked [Elmostafa] up." This note enhances the credibility of Elmostafa's claim that when Inv. R.D. Clayton picked him up, "The detective asked if I had anything new to say about the lacrosse case. When I said no, they took me to the magistrate."

Is Nifong's office seriously claiming that the district attorney wants to be informed each and every time Durham police serve a 2.5-year-old misdemeanor warrant?

3.) The N&O reports that "all day long, two investigators on the lacrosse case, Benjamin Himan and R.D. Clayton, sat in the courtroom." Elmostafa's lawyer asked the obvious question: "Why are they here? Supposedly they know zero about Hecht's, so why are they here?"

Their appearance yielded one of the classic photographs of the case, with Clayton doing his best caraciture of a 1950s Southern sheriff.

Clayton's pose is apt. In many ways, Durham’s legal system has reverted to a mirror image of what existed in the South 50 years ago, when defendants were halfway to conviction based on the color of their skin. Indeed, the closest historical parallel to Nifong’s behavior over the past five months comes from the 1950s and early 1960s, when district attorneys in the Deep South routinely filed specious charges against civil rights activists. Facts were irrelevant; everyone knew the accused were innocent. These cases politically aided the prosecutors, who, like Nifong, blatantly violated procedures just to get to court. Then, however, the national legal community, academics, and the media rallied against the injustices. Now, it seems, all three have different priorities.