Yesterday's Hearing

Some more considered reflections on yesterday’s hearing:

1.) The Psychologist Isn’t In.

Nifong has played many roles in this case: lead investigator, police department spokesperson, prosecutor, political demagogue. But perhaps the task for which he possesses the least qualifications is court-appointed medical expert.

Dr. Nifong made his first appearance at the September hearing, when—posing as an armchair psychologist—he justified his decision to change from the 30-minute attack publicly described by both the accuser and police affidavits. The attack, said he, actually took only five minutes—10 at most—because “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 has unimpeachable evidence that no possibility exists of his committing a 30-minute crime during the period the accuser was at the lacrosse captains’ house.

Yesterday, Nifong explained that he refrained, before seeking indictments, from hearing the accuser tell her own tale because of her allegedly “traumatized” state. When defense attorneys pressed for a description of what made him deem the accuser excessively traumatized, Dr. Nifong made his re-appearance.

His claim? The accuser was sullen (she spoke barely 15 words in the meeting, according to Nifong); struggled to establish eye contact; and seemed “on the verge of tears.” The former two items seem more characteristic of someone concealing the truth than a person experiencing excessive trauma. The third, meanwhile, seems dubious in light of this bombshell video interview released last night by 60 Minutes, in which the former manager of the accuser’s strip club asserts that she performed normally (both physically and emotionally) in all respects during the time Nifong is now terming her too traumatized to speak.

2.) Lead Investigator Nifong

An item that deserves far more attention than it’s received: Brad Bannon’s statement that according to police documents, Capt. Lamb told officers on March 24—a scarce eight days into the investigation—“to continue with our investigation, but to go through Mr. Nifong for any directions as to how to conduct matters in this case.”

These two video interviews from WRAL give a sense of the astonishment among former prosecutors regarding Nifong’s claim not to have spoken with the accuser about the facts of the case. But Nifong’s admission describes a situation well beyond a district attorney not having interviewed the accuser. In light of Bannon’s revelation, we know now that this is a case in which the city of Durham sought charges against three people without the person supervising the police investigation (in this case one and the same with the DA) even interviewing the accuser. This, truly, is astonishing.

3.) Too Cute by Half

Nifong is the master of the deceptive insinuations. A good example came in his interview with Newsweek, when he left the impression, falsely, that evidence existed of a date rape drug.

But yesterday his gambit backfired, and badly. Nifong appeared to have a two-track strategy toward avoiding disclosing the contents of his April 11 discussion with the accuser. First, he suggested that even if he had gone over the case with her, the defense wasn’t entitled to the discussions—since prosecutors’ notes of pretrial meetings with the accuser inherently involve strategy issues; or because prosecutors can’t function as stenographers and be expected to have substantially verbatim recording.

Bannon, however, quickly called him on this point, asking if he was now claiming that he didn’t have to turn over notes of a conversation that did occur with the accuser. Responding to a direct question from Bannon, Nifong backtracked and asserted that no such conversation occurred on April 11.

That response revealed Nifong’s second track: his hope to avoid asserting that he never spoke with the accuser about the case by hinting—without ever coming out and saying so—that he might have talked with her on another occasion.

But Bannon caught him here as well, saying that the defense wasn’t “wedded” to the April 11 date, and wanted to know once and for all whether Nifong had ever spoken with the accuser about the facts of the case.

Thus the district attorney made his devastating admission.

4.) The Nifong Atmosphere

In his previous court appearance, Nifong accepted the fashion advice of his former foe turned ally, Mark Simeon. Simeon, who endorsed Nifong’s election the day after the DA started his ethically dubious public denunciations of the players, urged Nifong to wear black suits, light shirts and power ties, advice that Nifong followed in the last hearing. (Accoridng to Newsweek, Simeon told the DA that women like power.) Yesterday, however, Nifong appeared in a bland gray suit, easily overshadowed by the wardrobe of his citizens’ committee co-chair and resident homophobe, Victoria Peterson.

The DA entered the court pushing a cart with discovery documents, looking almost giddy. Nifong largely eschewed his trademark smirks or eye-rolls (I saw only one occasion when he did so). Instead, he spent most of his time wringing his hands; when he’s nervous, he has a distracting habit of rapidly blinking his eyes. His behavior doesn’t exactly inspire confidence.

5.) The Medical File

The judge promised an in-camera review of the accuser’s non-case medical file, which he estimated totals between 6 and 10 inches in bulk. The mere size of the file can’t be good news for Nifong.

6.) Gottlieb

Nifong gave no reason for Himan replacing Gottlieb (who briefly went on medical leave, but now is back at work) as lead investigator for the case. Nifong made clear that Himan’s elevation wasn’t caused by Gottlieb’s medical problems. It doesn’t take a genius to notice the coincidence between the timing of Gottlieb’s removal and revelations of his record of excessively arresting Duke students for minor offenses.

The move probably is a tactical error: Gottlieb is involved in the case one way or the other, and removing him now makes it seem that even Nifong gives credence to the attacks against the sergeant.

7.) The Judge

Several people asked about my impression of Judge Osmond Smith, but it was hard to make a clear determination. As Brad Bannon remarked, Nifong’s assertion that he’s never spoken to the accuser about the case—except to ask if she’s used ecstasy—stretched credulity. In theory, the judge could have called him on this point. In practice, the system assumes a minimum of good faith on the part of all sides; when one side, in this case Nifong, exhibits none, there aren’t easy ways to make the system work.

I was more surprised that the judge didn’t rebuke Nifong for his assertion of having received no reciprocal discovery from the defense. Seligmann’s attorneys quickly disabused Nifong of that notion, but the judge might have interjected before they had to do so.