The D.A.'s Tough Day

Some issues of relevance from yesterday’s court hearing:

1.) The NC Open Discovery Law needs to be strengthened.

In 2004, Governor Mike Easley signed the measure, which requires prosecutors in felony cases to turn over all their files to defense attorneys. Dick Taylor of the North Carolina Academy of Trial Lawyers said the law would “result in less surprise, less ambush and more fair trials . . . I think it’s one of the most significant developments in our criminal procedure for a number of years.” A contemporaneous survey of defense lawyers, however, more skeptically concluded, “Open discovery will still depend, as it does now, on the ethical quality of the D.A.”

Mike Nifong’s performance in the Duke lacrosse case has certainly confirmed the wisdom of those skeptical about open discovery’s effects. As defense attorney Brad Bannon told ABC-11, “There is a pattern that has developed . . . that we don’t get discovery unless a court date is set and we’re here before a judge.” (Yesterday, Nifong turned over more than 600 pages of documents, months after his “investigation” supposedly was completed.) The district attorney’s increasingly erratic personal behavior hasn’t facilitated the administration of justice; defense attorneys revealed that Nifong (incredibly) refuses to return phone calls or respond to their motions.

Nifong’s excuse? “We’re providing in good faith what we can in these circumstances. Despite the feelings of some people, this is not the only case in Durham.” This is, however, the only case that Nifong is personally prosecuting, so he doesn’t have to handle other discovery requests. And it’s unclear why even the most administratively challenged figure would require more than three months to turn over internal e-mails that the police department itself compiled in June. While, admittedly, the D.A. didn’t have to deal with the issue of discovery during his years in traffic court, a cynical person might conclude that Nifong had something to hide.

2.) “My timeline” is really no timeline.

In perhaps the least surprising development of the case, Nifong has abandoned even the accuser’s version of events to invent his own timeline. Having obtained indictments based on a tale that a 30-minute rape occurred on March 14, Nifong is now claiming that a 5-10 minute attack occurred on either March 13 or March 14.

The district attorney rationalized his new theory by adding to his previous de facto roles as lead investigator and Durham P.D. press secretary. Now posing as an armchair psychologist, he asserted, “When something happens to you that is really awful, it can seem like it takes place longer than it actually takes.”

The real reason for the change, of course: Reade Seligmann’s attorney, Kirk Osborn, has provided unimpeachable evidence that no possibility exists of Seligmann committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

Unfortunately for Nifong, shortening the time of the alleged attack only undermines what remained of his credibility. Time-stamped photos show the dance ending at 12.04am, a timeline reinforced by the accuser’s cellphone records and the neighbor’s statement. The second dancer’s statement, corroborated by that of the neighbor and most of the accuser’s myriad and mutually contradictory versions, has the dancers proceeding from the dance’s conclusion to the bathroom for an unspecified period of time, and from there to the car, where one of the players persuaded them to return to the party. Unless the D.A. is now contending that these developments occurred with the two dancers effectively in a full sprint, both Seligmann and (it appears) Finnerty had departed the house before the window for even a 5-minute attack opens, while Seligmann well before that time was on the phone.

3.) Due process and normal prosecutorial conduct remain under assault.

Spurning defense demands for a bill of particulars, the district attorney announced, “We’re not required to report the exact time an offense took place.” Speaking directly to Osborn, Nifong continued, “Out of his client’s whole life, we have given him an hour and a half that he has to account for.”

Setting aside the fact that Osborn has already done precisely that, Nifong’s comment reflects his belief that the defense carries the burden of proof. To quote Wendy McElroy’s recent article,

The assumption that a defendant is ‘innocent until proven guilty’ has been reversed. Seligmann is assumed to be guilty. But more than this. It is as though Seligmann is not allowed to prove his innocence no matter how much evidence he produces.

4.) What was yesterday’s bait and switch?

This case has regularly featured what could be called the “Nifong bait and switch”: shortly before receiving another crushing p.r. blow, the district attorney releases tangential information to distract attention. So, for instance, the McFadyen e-mail was unsealed five days before announcement that DNA evidence that Nifong had promised would “immediately rule out any innocent persons” instead matched no lacrosse players. Just before a devastating piece by the N&O’s Joseph Neff, Nifong’s house organ, the Durham Herald-Sun, published an article on DNA evidence that bordered on journalistic fraud.

It’s easy to see the Nifong distraction for yesterday’s hearing: his bizarre obsession with defense attorneys’ routine decision to poll 300 Durham County residents about the case. What, then, is the bombshell evidence he expects? I suppose we’ll learn in a few days, but for now, my money is on the DNA. Defense lawyers want complete information about the second round of DNA testing, with a suggestion that there might be additional matches to people other than lacrosse players (no matches with the accuser) and the accuser’s three admitted sexual partners in the week before the party (one match, of three). If additional DNA exists, and that DNA belongs to someone not yet tested, then the accuser concealed information about her number of sexual partners in the days before the party.

Nifong’s objection to the evidence? Its $4035 pricetag. This sudden burst of frugality seems particularly rich given the nearly $23,000 that Nifong already spent to conduct a highly unusual second round of DNA tests—a fact that Brad Bannon pointed out yesterday. The judge, of course, ordered the D.A. to supply the material by October 20, so we'll soon see specifically what Nifong didn't want to turn over.

For the first time in this case, it seems, we have a judge who's not going to tolerate Nifong's shenanigans. If so, that leaves a question of not will the D.A.'s case will unravel, but when will it do so.