Friday, December 22, 2006

Questions and Answers

The Meehan hearing triggered a lot of questions, and so it seemed like a good time for a Q+A post. Blog stats: since August 28, it has had more than 375,000 visitors and just under 700,000 page views. The blog now has had visitors from 106 countries, with the most recent additions including Honduras, Iceland, Malta, Kyrgyzstan, Afghanistan, Iran(!), Sri Lanka, Nigeria, Uganda, Zambia, Vanuatu, and Fiji.

Q: We have seen enough. Where are you, Steel? How long are you going to keep this tragedy going?

Q: I would love to if you can shed some light onto exactly what the role of the board of trustees (and the Chairman of the BOT) is, and what their limitations are. I have served as chair of a board of education, which may be very different from the board of trustees. However, in our state, board of education members are responsible for making policy--not for implementing it. And each board of ed member, including the chair, has no individual power--they can only act as a group. While the board of ed as a group evaluates the superintendent, the chair of the board of ed could never reprimand a teacher (or the superintendent) for actions he thought were wrong. Do members of boards of trustees have the power to reprimand or discipline professors and the president of the university? Is it appropriate for the Chair of the BOT to take a public stand on the actions of the university relative to the discipline or status of an individual student?

A: The role of Board of Trustees chairman Bob Steel represents one of the biggest mysteries of this case. It’s impossible to overemphasize to those outside the academy how unusually Steel has behaved in this affair.

Normally, Trustees are reluctant to become involved in University affairs, though when they do so, it most often is: (a) on financial or other fiduciary matters; (b) to promote athletics; or (c) to balance inappropriate, usually radical, actions by the faculty. The Ward Churchill affair at the University of Colorado is a good example of the latter. Also, normally a chairman of the BOT is first among equals, but not the sole spokesperson for the Trustees or the sole key actor.

In this case, Steel has recused himself on all financial matters; has stood silently by as faculty members have engaged in an anti-athletics jeremiad; and has taken a number of public and behind-the-scenes actions to work with faculty radicals in their campaign against the lacrosse players. Meanwhile, he has assumed a much more active role than the other Trustees, though he has claimed, in writing, that each and every one of the other 36 fully agreed with his actions.

In terms of the specific powers of the Board: In theory, the Board has considerable oversight power. To give one specific policy the Board could consider: to express displeasure with the Group of 88’s fairly clear violation of Chapter Six in the Faculty Handbook, Duke could withhold this year’s discretionary raises to faculty members who signed the statement. Don’t count on that happening, however.

Q: Someone put a copy of the entire Change of Venue document on this website. It needs to be here.

A: Excellent suggestion. I have added a new sidebar, which contains links to all three motions filed this week (change of venue, lineup, and DNA).

Q: Basically, how can a prosecutor, faced with DNA evidence not matching the accused, not follow it up and try to determine the source. Was the deposit consensual, or was it rape but not by a lacrosse player (as there is evidence that there were non lacrosse players at the party)? How could Nifong just ignore the evidence--unless he was fully aware that the entire story was a hoax, and following this trail would lead to nothing.

Q: Nifong has sworn in open court that he didn’t ask the accuser any substantive questions on April 11. Think it through! Which is worse for Nifong? He lied to the court? Or he didn’t? Given what he learned about the DNA evidence on April 10, under what circumstances would he NOT question her the next day? Is there a pretty answer to that question?

A: This issue is deserves more attention than it received in the post-hearing environment (but understandably didn’t, because the highest-profile item was evidence of the Nifong/Meehan conspiracy).

The short answer: no innocent explanation exists for Nifong’s behavior in this regard.

The longer answer: reconstruct the timeline. Nifong and Sgt. Gottlieb journeyed to Burlington on April 10, where Dr. Meehan told them that there were samples from five males other than the lacrosse players and the three men with whom the accuser had admitted having sexual relations. These findings suggested that the accuser all but certainly lied when she said she said she hadn’t had sex the week before the party.

While at this meeting, according to Meehan’s testimony, he and Nifong began the process of entering into an agreement to intentionally not report this information.

The next day, Nifong, Gottlieb, and two other police officers (Himan and Lt. Ripberger) met with the accuser. It is Nifong’s contention, stated in open court, that he did not discuss this information with the accuser at that meeting, because she was too “traumatized” by the alleged event.

The inescapable conclusion: he’s either lying or is mindbogglingly incompetent.

Q: In the Friday hearing, the brief filed by the defense states there has not been full disclosure regarding the DNA testing. And Meehan confirmed this in his testimony. Do Meehan and Nifong now have to provide the additional information? Or was this left hanging?

A: The brief listed several ways in which the request for more information could be fulfilled, one of which was Meehan testifying, subject to defense cross-examination.

The additional information was supplied by Meehan on the stand (his testimony). At the conclusion of his appearance, defense lawyers stated that they wanted to review the transcript, and then might be filing additional motions. I suspect that other agencies will be interested in that transcript as well.

At this stage, it appears that Meehan—albeit under court order, and over Nifong’s vociferous opposition—has turned over all of his data to the defense.

Q: KC, who’s to say that it wasn’t Bob Ekstrand who gave the emails to the H-S? The article reads as though the comments were replies to his request that the faculty sign his petition.

A: Fair question. From two separate sources, I have been told that Ekstrand wasn’t the Law School Leaker.

Consider, moreover, the motive: in light of Friday’s hearing, the Leaker had an opportunity to publicize that three law school professors (four, if you want to count Holloway) refused to sign a petition denouncing Nifong. Ekstrand would have no motive to have that information enter into public circulation. I can think of one or two recipients of the e-mail who “in a heartbeat” (to borrow a phrase) would have been only too willing to work hand in glove with the H-S.

There seems to be no chance that Trina Jones or Karla Holloway would have signed such a statement under any conditions. But others might have been concerned about the connection between Ekstrand, who has represented some of the unindicted players, and the petition.

On that matter: to my knowledge, the petition originated with undergraduate faculty members, and its initial circulation came in the arts and sciences and Engineering faculty. The Gronberg article suggested that 20 Duke professors had been willing to sign such a petition; I don’t know how many of this group (if any) were from the law school.

Q: There were also a number of guys at that party who were not LX. team members and so were not tested during the first round. Did Nifong think to test them? After all, he was stridently insisting that a vile form of rape had occurred. Did he mean it? Did he even try to test the group of potential perps when the first round came up blank?

A: This issue—for reasons that I cannot understand—has not received anywhere near the attention it deserves. The Nifong-led investigation knew on March 28 that at least two people at the party during the accuser’s “performance” weren’t lacrosse players. Investigators knew their names, and addresses.

Yet the accuser was never shown the photographs of these two people.

Imagine if a rape actually had occurred: because of Nifong’s investigatory negligence, the accuser was denied the opportunity to look at two people who might have been her “attackers.” The silence of pro-“victim” groups, such as the North Carolina NAACP, on this question suggests that whatever is motivating them, it is not ensuring “justice” for the “victim.”

What explains Nifong’s negligence? The only possible explanation is politics. Nifong was up against a politically imposed deadline: he needed indictments before the next meeting of the April 18 meeting of the grand jury. (The primary was May 2.) He learned of the non-lacrosse players attending the party on March 28. Acting upon this information would have required him getting a non-testimonial order, waiting for the state lab to analyze their DNA, and then scheduling a lineup ID session. (Since their DN theoretically could be a match, Nifong couldn’t afford to risk scheduling the “no-wong-answers” lineup until all DNA was in.) That schedule meant that he might not have time to make an indictment before the April 18 grand jury—which would mean no indictment before the primary. Which would mean no primary victory.

Q: Why can’t the NC Bar or the Feds question Judge Stephens on what transpired at the Grand Jury proceedings?

Q: How much is known about the Grand Jury? Charles A. Harris is the foreman’s signature on a number of documents that are part of the public record? Does anyone know who he is? Can the defense team take depositions from the members of the GJ, now that the Nifong-Meehan conspiracy has been exposed? It’s amazing that North Carolina doesn’t require a taping or record of the proceedings.

A: I’m looking into the question of grand jury secrecy, which varies from state to state, and hope to have more information after the first of the year.

Consider the questions a different way: imagine you served on the grand jury that handed down indictments against Reade Seligmann and Collin Finnerty. At this stage, after all that we have learned, how could you remain silent and not come forward to denounce the prosecution for obtaining fraudulent indictments from you?

Q: Is there any possibility that Nifong would attempt to have Meehan’s test results tossed out? I know this would do more harm to him, but how much more? If he accomplishes this, then the defense can’t use the 5 to 7 of the other men’s DNA, found on the AV or her clothes.

A: Nifong might try this move, but would have almost no chance of success. The defense obviously would oppose the motion, and I can’t imagine the judge siding with Nifong on the question.

Q: Imagine this going to trial (God forbid)! The defense lawyers' call Meehan as a witness. Nifong objects to Meehan testifying for various legal reasons, but the real reason is that Meehan's testimony would further implicate Nifong in a criminal enterprise. Is this so far fetched that it couldn't happen?

A: This issue, in fact, was a central element of UNC professor Joseph Kennedy's N&O op-ed from yesterday. Kennedy argued that Nifong now suffers from a hopeless conflict of interest, in which--to save his own skin--he would need to impeach Meehan's testimony.

By the way: we'll be seeing lots of this if a trial ever occurred. Even in the February evidentiary hearing, Nifong has no choice but to impeach the testimony of the current lead investigator on the case, Ben Himan, since Himan's notes contradict the Gottlieb "straight-from-memory" notes upon which Nifong so relies.

Q: Although one of the commentators asked the question, is there any response as to why the relevant authorities such as the Bar Association, Disciplinary Board, etc. have not moved on an investigation into Nifong's activities? Is it because the case is still pending? That seems dangerous for the three players in the event a conviction is won. As a former prosecutor and now defense attorney, I have an inherent distrust of the jury system. And given the trial likely takes place in the community that re-elected this DA, I am even more worried about the possible outcome.

A: There is no clear answer to this question. The bar's procedures contain nothing mandating the bar's ethics committee to wait to investigate a matter while a case is still pending. There seems to be no way absent political pressure, however, to force the bar to act in a timely fashion.

Q: I have a question, if Nifong were to interview the FA today in regards to all that DNA that was found on her would he have to hand over that information to the defense ?

A: Yes—under the Open Discovery Law.

Q: What is the legal rationale for calling a prosecutor as a witness? Nifong has on more than one occasion said that he specifically did not interview the AV because he did not want to put himself in a position to be called as a witness. Clearly prosecuting attorneys often (or usually?) interview alleged victims of crimes, without fearing they will be put on the witness stand. What is it in this case that would cause him to fear that if he interviewed her he would put himself in that position? Is it the fact that the AV changed her story, and the prosecutor could be asked to testify if he hears her change her story? In which case did Nifong NOT interview her BECAUSE he knew her story kept changing (and therefore knew there was an issue with her credibility?)

I ask this because almost all experts seem to agree that not interviewing the AV was a major error in the investigation, yet Nifong seems to think it was legally justified, or even SOP. It seems his motive is important (if he were charged with prosecutorial misconduct, could he have to testify as to his motive?)

A: Nifong’s argument is a canard, and it’s disappointing that some in the media have treated it seriously. Himan, Gottlieb, or Linwood Wilson could attend such a discussion and memorialize it, thereby precluding the possibility that Nifong would be called as a witness.

In normal cases, of course, the prosecutor is not simultaneously serving as the lead investigator, and therefore conversations between the prosecutor and the accuser don’t occur until after the police have completed their investigation and determined that a crime actually occurred. Therefore, it’s unlikely that any dramatically new information would come out in a prosecutor-accuser conversation.

Q: In my experience, when an expert takes the stand, unless both counsels stipulate to the background and credentials of said expert, there is a period of questioning regarding degrees, experience, prior court appearances, etc. was any of that done with Meehan?

2. Was there any exploration by defense counsel of Meehan’s statements that “Nifong was the client,” pointing out that the client was the State or the People or the taxpayers of NC and that they were owed an accurate, complete, unbiased report as required by his SOP, the standard setting body, and the state law?

3. You said: Meehan got off to a bad start. Less than 10 questions into a session with Bannon, he challenged a defense assertion that the underlying DNA test results—the results that he and Nifong had mutually agreed would be excluded from his report to the D.A.—showed DNA from multiple men on the material from the accuser’s rape kit. What was the bone of contention in the first 10 questions?

A: All excellent questions. On (1), this was a pretrial hearing confined to the issue of why Meehan didn’t follow NC law and turn over all the material in his initial report. So the question of his qualifications didn’t have to be etsbalished, as it would be in a trial.

On (2), no, there was no followup, probably because the comment itself (which Meehan made three or four times) was simply so bizarre. I suspect we’ll hear more of this issue in defense followup motions.

On (3), at the start of his testimony, Meehan seemed eager to dispute the claim that there were samples from five other men in the rape kit. Here I’m speculating, but my guess is that he (and Nifong, obviously) didn’t realize that defense lawyers had actually gone through all of the DNA data and had discovered the cover-up. So when he refused to acknowledge the obvious, Bannon was forced to walk him through the data step by step.

Q: Was the Wanted Poster a product of the Gang of 88 or student activists they knew of or supervised for better provoking community rage? Who assembled it from duke.edu web page photos? Who paid to print it? Who was involved in the group that distributed it 1st on Duke campus then all over Durham to attack “white male privilege?

A: John in Carolina is the blogosphere’s expert on the poster, and I turned to him for a response. He outlined the origins of the posters in this post, and also conducted an interview with local attorney Alex Charns, who is heading up the legal response to the posters. JinC then took the issue to the Durham Police, which offered what were at best evasive responses. And in this post, he summarized the N&O's role in disseminating the poster widely.

Q: Did Nifong hand over any more “evidence” at the hearing?

A: Yes, but not much. He handed over notes of Himan’s activities since mid-July; and Linwood Wilson’s notes. I doubt very much that the former will contain anything of consequence. I suspect the latter will be of the intellectual quality of the Gottlieb notes, without its “straight-from-memory” aspect.

Q: Since Gottlieb and Himan attended the two meetings with Meehan, should there be notes regarding the meetings in their investigation notes?

A: Absolutely. It is my understanding that Sgt. Gottlieb’s straight-from-memory notes contain nothing more than a statement that he attended the meeting, with absolutely no discussion of what was said at the meeting. This from the same person who, months after the fact, recalled precise details of his March 16 chat with the accuser.

Q: Bannon must be one hell of a lawyer. When it was reported that Evans’ dna could not be excluded from the dna found on the nail in the bath, Nifong supporters jumped on this as the smoking gun. What a great point Bannon made about Meehan’s dna (possible just one cell) being found. Proves without a doubt how easy it is to transfer dna.

A: Absolutely. As he was eviscerating Meehan on the stand—essentially getting the doctor to admit to having participated in a conspiracy to obstruct justice—I don’t think anyone realized that Bannon was speaking extemporaneously. (I certainly hadn’t realized it.) Meehan wasn’t expected to be in court last Friday: the defense, as far as I know, hadn’t prepared a detailed cross-examination of the doctor.

Under these circumstances, Bannon’s performance was stunning.

Q: Off topic, but could it be possible that Victoria Peterson is the so called “handler” for the accuser on behalf of Nifong?

Q: Why does her family have to go through Nifong to speak to her? Where does he have her hiding?

A: Very good questions: again, where are the so-called “victims’ rights” groups—NOW, Laura Blasberg, even the NAACP? Their silence on this matter speaks volumes as to their true motives on this case.

Q: I would love to hear your opinions concerning what is happening with the decline of newspapers and blog reporting. Are we witnessing a revolution?

A: The best way to approach this issue is to remember that we’ve seen good and bad newspaper reporting on this case, just as we’ve seen good and bad blogging on the case. It’s true that the bad newspaper reporting has been unusually bad (New York Times, Herald-Sun) and the good newspaper reporting has largely been confined to the N&O.

Peculiarities of this case, moreover, have made it unusually welcoming for a blogger. Kirk Osborn, very soon after the indictments, made the risky but (in retrospect) brilliant decision to post critical police documents as part of his early motions. These documents (Kim Roberts’ statement, Jarriel Johnson’s statement) should have formed the heart of the state’s case. That they instead were wholly exculpatory suggested that Nifong had no evidence.

The prevalence of a large number of available documents—whether police reports, NC procedures, faculty remarks like the Group of 88’s statement—made active blogging possible.

In terms of how blogs have affected the case: we’re still in the midst of things, so it’s premature to judge. It would be hard to argue, however, that their overall impact hasn’t been a positive one.

Q: Wanted to ask you when you had the ‘Schedule’ entry up, KC - how did the local and national press receive you?

A: At both hearings that I have attended, I’ve tried to speak to as many people as I can. Some people who are covering the case know me; some don’t. Some are cordial and welcoming to me; others aren’t.

For my part, I have great admiration for the professionalism of the N&O reporters covering this case, which hasn’t been an easy one to cover, in part because it doesn’t fit easily into at least some expected narratives.

Q: More, this is a highly educated man whose field has an obvious nexus to law enforcement, etc. It begs the question: is it at all reasonable that Meehan thought that this could’ve been ok?

Q: While I hate to go against the tidal wave of exculpatory evidence, is there any way these students’ could be guilty of any of the charges? Is there a remote possibility that Nifong has the Ace of Spades up his sleeve?

A: No—to both questions.

On the first question: according to his website, Meehan is certified as an expert witness in six states. He knew exactly what he and Nifong agreed to intentionally do.

On the second question: remember that NC has an Open Discovery law (which Nifong has tried to circumvent, but it’s nonetheless on the books). If Nifong had an “ace of spades,” he would have to disclose it. Unfortunately for him, the material in his case file revealed that he doesn’t even have a two of diamonds. That’s a pretty bad hand on which to bet one’s career.

50 comments:

Guaunyu said...

Regarding Nifong, you say...

"The inescapable conclusion: he’s either lying or is mindbogglingly incompetent."

Does it have to be either/or? Can't we all agree that it's both/and?

Anonymous said...

Federal inaction is getting to be as shameful as Easley and North Carolina inaction.

kbp said...

Thanks KC

I like these Q & A posts.

Q "...imagine you served on the grand jury that handed down indictments... after all that we have learned, how could you remain silent and not come forward to denounce the prosecution for obtaining fraudulent indictments from you?"

A Consider the question a different way: how many jurors know as much about what Nifong knew before the GJ as those that follow the case closely on the great blogs and boards of this case?

I can only hope at least one of them does or at least questions what he had provided for them!

I do know we can probably eliminate all those in 105 of the 106 different countries that visit YOUR blog!

Thanks again!

Anonymous said...

Bill A and KC - Any thought of defense lawyers to getting Barry Scheck on the case?

don t. said...

A number of people have indicated that they are dedicating any contributions to Pratt Eng., the athletic dept., etc. Isn't it true that dedicated contributions merely allow Duke to lessen the amount allocated to specific areas from general funds?? I.e., any money contributed to any area will benefit brodhead, will it not??

kbp said...

Meehan @ trial !

He should NOT have testified at the hearing.

I anticipate a jury will only hear transcripts of the hearing, no new testimony from the conspiracy participant.

Next you lose Himan and Gottlieb to taking the 5th.

Mikey's only left with Precious supporting him.


On calling Nifong testifying about any conversations he had with Precious, Gottlieb and Himan could testify to what took place in that meeting, so Nifong would not have to testify (but I already have them out taking the 5th!).


On blogs biting into newspapers, it started in politics and has done well. I think you, Liestoppers and other blogs have used this case to prove that we do not need the media to get the truth on a case like this. Feel free to pat yourself on the back there KC!

Anonymous said...

Why aren't the North Carolina newspaper reporters asking Gov. Easley about this embarrassing case? If Easley were a Republican instead of a Democrat, would reporters be letting him off the hook? As you know, Easley appointed Nifong.

Joe T. said...

Anon. 135: I'm an Independent (neither Democrat nor Republican) but I can't help but believe part of the reason the former N.C. potbanging press and public is trying to now hide under the rug is because in this case it was a mostly black-elected Democrat DA who turned out to be such a rat. They just can't STAND that, thus their silence (and dishonesty).

Cedarford said...

KC Johnson -
Thanks for going out of your way to ask Jim in Carolina about my question on the Wanted/Rape poster! I followed the links and learned some new things that helped answer some questions I had.

It seems a wanted poster is of value only when trying to locate witnesses or when the whereabouts of a criminal suspect is unknown. It seeks to enlist the public's help in that endeavor.

But the whereabouts of all the Dike players was known, their locations and phone numbers given to the police. Lists of who was at the party provided. The police were not looking for witnesses - not really, just seeking more interviews and evidence from the witnesses they already had. Or, it seems, getting two witnesses they disagreed with - Kim Roberts and the taxi driver - to reconsider what they said.

So it seems the real reason for the wanted/vigilante posters was to be a tool by radicals within the community, Crimestoppers, DPD, and the radical center of Duke's own activists was to make the crime an event of collective political guilt. To vilify the players and more importantly to politically propagandize to create hatred for the "rich, white boy" players, and prejudice the community to assume collective guilt of the "frats", drinking, the evil penis-wielding white males of privilege.

Even the Crimestoppers/DPD "wanted" poster was an effort to gain support for "their side". The "vigilante" poster was in the same spirit, but more nefarious as it appears to have originated on Duke campus. That is what N&O said, at least. They saw it on Duke campus before it showed up anywhere else, before they foolishly ran it in their paper. They got their copy from a Duke parking lot where they were being placed on car windshields. It used Duke.edu website material to modify the original Crimestoppers poster with the faces and adresses of players.

I doubt their intent was to taint Durhams jury pool, to help make a Durham trial a bad idea. They were just attacking white boys for identity politics. But the political attack on the lacrosse players was vicious, hateful, and done by not so bright people that includes a considerable role by Duke students, professors, staff out to slime the lacrosse players collectively. To intentionally set out to imply guilt or conspiracy involvement, to impugn the players' integrity, destroy their reputations and deny them due process.

I hope this presumption of guilt on racial identity politics will be thought about long and hard. It happened just this way in Scottsboro - without the high technology. The presumptions and prejudicing arising from the posters were done under color of authority - Duke's permitting them to be distributed or it's own employees creating and printing them, Crimestoppers, Durham PD, and the newspapers that reprinted them and gave an even wider distribution and jury pool tainting. (Something N&O newspaper now conceeds was a bad thing).

It may lead to a necessary change in venue. As damaging in their way as NIfong's early remarks and assertions. Ideally, it should lead to an investigation and considerable soul-searching at Duke if it turns out one of the biggest sources of bias against accused Duke students is within Duke and it's employees.

Hopefully, investigations of who was involved will continue without the need for the tort suits targeting Crimestoppers and Duke University AFTER the case in dropped.

Friends of Duke, Duke's Lawyers, Faculty Reps, Duke Alumni Association, and Duke's Board of Trustees should sit down and agree to discuss the actions needed - if any - to investigate and deal with the Gang of 88 and the origin and distribution of the vigilante poster on Duke campus. And to look to the future and agree that policy changes are needed to protect future Duke students or employees accused of a crime and prejudgment of charges by any official group or employee of the Duke University system.

Joe T. said...

Right now it seems like first things first, but....down the line, I personally can not WAIT for the malicious rats behind the vigilante posters to be completely exposed and at the mercy of lawsuits.

Anonymous said...

kbp

The answer to your 12:49 question may depend on the answer to another. Does GJ secrecy extend to the jurors? Are they allowed to discuss the procedings with the world at large? IANAL, so I have no clue, but maybe someone else reading the board might know.

kaz

Anonymous said...

It is worth repeating....


Bannon’s performance was stunning.

Cedarford said...

A quick link and an observation about the cops and the grand jury indictments.

Grand Jury orientation and instruction under North Carolina State Law:

http://www.aoc.state.nc.us/data/district12/JURY/GrandJuryOrientation.html

The only sworn witnesses the Evans/Seligmann/Finnerty grand jury heard were cops Himan and Gottlieb under oath. To indict, under NC law, they had to find the 2 cop witnesses had given them sufficient probable cause that a crime had occured, and that crime was tied to the suspects they were asked to indict.

That means that Himan and Gottlieb, under oath, in all likelihood, gave testimony that:

1. They found the accuser credible.
2. The accuser identified her attackers with reliability from a lineup of uninvolved people.
3. That supporting evidence existed or did not exist that would support the accuser.

It would be very interesting for defense to petition the court, on an urgent basis, to waive secrecy and interview the 18 members of the Grand Jury on a number of questions the defense could submit that could be asked by a neutral judge, have that judge then interview the two cops based on grand jury members responses, then issue findings.

Urgent because:
A. No recordings or transcripts exist, and the only record is jury members and the 2 cops memories, which, except for Gottlieb, tend to grow hazier by the day.

B. Emerging facts that the photo ID lineup compromised established state and Durham PD procedure and the jury was not informed of that. That the accuser gave 21 different stories to 15 different people. That suspect descriptions varied wildly between Himan and Gottlieb notes, that the jury did not know of that discrepency - which impugns one or both witness's testimony - or the credibility of the accuser.

C. Disclosure in recent open court that Himan, Gottlieb, and Nifong worked to cover up DNA results critical to grand jury proceedings. Would the grand jury have indicted if they knew that testing after the alledged rape found the semen of 6 men in or on the accuser, that 1 was known to be her "BF", that the other 5 were unknown but definitely NOT the 3 indictments were being sought for?? Or would they have waited on indicting until more was known about the semen sources ID'd after a gang rape?

Bets on the odds that if a court query is launched on the grand jury on concealed or manufactured evidence (Gottlieb's notes?) or false testimony - of the likelihood of certian people taking the 5th?

Bets anyone? My guess is odds either Himan or Gottlieb does the 5th approaches 100%.

To get a court to recheck that Nifong, Himan, and Gottlieb were honest and ethical and the 2 cops did not perjure themselves under oath would mean that a judge would have to buck the Good Old Boys network of lawyer-politicans and judges covering for buddy Mike. I don't give those odds much luck, because I'm pretty cynical about media and local elites down there daring to buck the system. But it would be the only way grand jury members now under lifetime secrecy gags could tell their story of the Duke indictments they handed down to justice officials.

1. Himan and Gottlieb were part of the “dorm invasion” at Duke where they tried searching w/o warrant and badgered students who were under legal counsel’s instruction to direct police inquiry to their lawyer.

2. Both Himan and Gottlieb were the ones that got the accusers description of the suspects, Gottlieb is suspected to have altered his notes to make his suspects dead ringers for the 3 accused while Himan’s notes say the accuser, at the same sitdown with him as Gottlieb - described 3, 4 markedly different men.

4. Gottlieb was the cop that arrested Seligmann's alibi taxi driver incidental to his questioning him as a witness.

5. Both were there for all the ID sessions the accuser screwed up, and at the final one where both had rejected their own department’s standard for Nifong’s new improved way to be 100% sure she ID’d a white lacrosse player.

6. Both were the only sworn witnesses that Nifong used, who had been given reams of info from sources on troubling questions and facts regarding the accuser's veracity.

7. Gottlieb and Nifong were part of the apparant witness intimidation of Seligmann’s alibi, the taxi driver. Nifong may have tampered with witness Kim Roberts to have her change her story publicly to one more supportive of the accuser who had tolk cops some very tall tales of Roberts criminal acts against her and being witness to the rape.

8. Both Gottlieb and Himan were with Nifong at every DNA test results meeting Meehan had at his lab. Both were there when a decision was made to with hold test results right before the grand jury convened.

Cedarford said...

anonymous 6:22 AM.

Read the grand jury orientation and rules I posted on my link. Your questions will be answered.

And yes, courts have waived grand jury secrecy in various cases to either query jury members on events or more commonly, review transcripts (NC is almost unique in refusing to have recordings) for allegations of suborning grand juries, cases when criminal charges are filed against someone - where proceedings are ruled to be criminal evidence - usually against the person(s) under investigation - who lies to a grand jury.

It happens almost automatically when a mere citizen lies to or misleads a grand jury. Lawyers and to a lesser extent, cops, are more protected by peers that have clout in the justice system to have their backs, unfortunately, from consequences of not being truthful of what they say or do under oath.

I give high odds that the 3 Muffiteers (Nifong, Gottlieb, Himan) would be up to their necks in shit if the grand jury was scrutinized by a court, but low odds that the scrutiny would happen given the Good Ol' Boys networks that would oppose opening that can of worms.

locomotive Breath said...

I subscribe to the N&O. I'm going to have to disagree with you about their coverage - particularly early on before Joe Neff started writing. Go here for N&O Managing Editor John Drescher's remarks a a forum held at Duke Law School in October.

http://blogs.newsobserver.com/editor/index.php?title=duke_lacrosse_forum&more=1&c=1&tb=1&pb=1

In the first comment I summarized the coverage-by-headlines in the first six weeks or so. The N&O's inflamatory coverage led the witch-hunt right from the beginning and played a huge role in this case going nationwide.

In particular, from their interview with Crystal, the N&O knew, but suppressed, that Crystal had accused Kim as well as the lax team so that this wasn't necessarily a story of both strippers being worked over by the lax team. They knew, but suppressed, the fact that Kim started the racial taunting. They knew, but suppressed, the fact that the 911 caller was Kim and not some random passer by harrassed by Duke students. Early on, that could have cast doubt on the whole story and they suppressed it. Getting it right months later won't stuff that genie back in the bottle. In my book that makes them no better than Nifong and Meehan.

As far as the role of the blogs, that forum would never have been held without enough of us having alternate sources of information to realize that the media's reporting was a crock.

locomotive Breath said...

p.s.

JinC has argued that it was the N&O's early coverage - they were out of the gate before he was - that put the idea in Nifong's head that he could ride this case to winning the election.

Anonymous said...

Media Notes: Todays N-O has an article by Jane Stancill about Duke U's effort to come back from the scandal that mostly takes the point of view of the Administration that it is the Lacrosse players fault for the mess which is kind of disingenuous given the previous post on the N-O's own culpability in promoting this mess. This article is a step back.
Also Liestoppers has a link to the brilliant send-up of the Nancy Grace parody on SNL last Sat. This skit was the break in the dam for others to express how absurd this whole case is. Now NBC is now blocking that skit for "copyright reasons". Other Nancy Grace parodies are still viewable on YOUTUBE as is a skit NBC is sponsoring for this Christmas season titled "DICK in a BOX" with Justin Timberlake about sticking his penis in a gift box and offering it as a present. The NYT has a big article about this today. Way to GO NBC.
I think both of these represent pushback by the MSM and predict more will come.

Bob Banks said...

KC Wrote:

It is Nifong’s contention, stated in open court, that he did not discuss this [DNA] information with the accuser at that meeting [April 11], because she was too “traumatized” by the alleged event.


The inescapable conclusion: he’s either lying or is mindbogglingly incompetent.


No, there is a third possibility. He knew the case was a hoax, but was determined to proceed with a frame for politial reasons. He thus made a deliberate choice on April 11 not to ask the accuser any questions about the DNA evidence.

The real purpose of the meeting may have been to gauge the accusers willingness to stick with her story. Once he decided she wouldn't flake out and recant, he plowed ahead.

bill anderson said...

To 1:01 AM:

The services of Barry Schect most likely will not be needed, but I have written a piece that is on Lew Rockwell's page today that calls on the Innocence Project to end its silence on the case.

A noted criminal defense attorney in Boston who also is a personal friend told me last night he is emailing the link to three of his friends at the IP. Thus, I can assure you that the people at the IP are going to know that they can be silent no longer.

The article is posted at Lewrockwell.com, and also on the Liestoppers board. (Someone else posted it. I never post my own articles.)

AMac said...

Link to Bill Anderson's columns at lewrockwell.com<.

Victim in Massachusetts said...

Bill I just read your Open Letter to the Innocence Project. I loved it.

KC you never answered my question form the other day. Is this case still in Second setting or have they gone to Third Setting Yet?

Anonymous said...

More Q & A:

KC, what is your opinion if Brodhead, Steel, et al, actually began to stand up for their students and put some serious (public) pressure on Nifong to drop the charges...do you think it would have any impact?

Anonymous said...

Legal question for KC:

Kennedy's article indicated that a DA could be removed for willful misconduct. Who has standing to raise that issue? Is it limited to defined individuals in the government or is it open to any citizen.

If Kennedy's legal analysis is correct, Nifong has no loophole to avoid willful misconduct as his defenses, I was trying to do the right thing etc., are, aside from not being credible, are irrelevant. If you have to disclose all test results by statute, and the statue is unambiguous, and you choose not to do so, the fact that believed you were doing the right thing does not matter. (anymore then you can defend a statutory rape action by saying that you thought the girls was eighteen). Moreover, the defense offered, that he thought he was doing the right thing is an admission that it was intentional.

So, if he can be removed for willful misconduct, and it is admitted, who can seek removal and why have they not done so.

Anonymous said...

from a non-lawyer: It is becoming increasingly apparent that these 3 young men will be exonerated. The only question is when. The defense attorneys' are probably salivating at the opportunities that they will have at the February 5 hearing, even if the AV is a no show. Think of the fireworks from this most recent hearing. With Nifong there on February 5, they will establish a public record that will be most useful in addressing Nifong's disbarment, as well as civil and criminal liability. Just my opinion.

Anonymous said...

As a lawyer I cannot imagine that this case will go to trial, but I wasn't sure what will end it. Thanks KC for putting up the defense motions. In my view, the motion to suppress the photograph indentification and any subsequest in court identifications is a slam dunk. It is absolutely devestating and must reading for anyone following this case. If there is no in-court identification by the accuser, there is no evidence tying the victims, erh, I mean, defendants, to the crime. One question for KC: Normally prosecutors respond in writing to defense motions. Has Nifong yet replied? If so, could you post his reply or provide a link? I am very curious how he responded.

Anonymous said...

to 936 regarding question for KC
from: a non-lawyer
Note that in the N&O story by Niolet today where it stated: "Kennedy said the defense would likely want to keep Nifong on the case." Remember Kennedy recently asked for Nifong to step aside. To me the interesting question is why would the defense want to keep Nifong on the case? I speculated about this on my 936 post.

bill anderson said...

There is another problem on the horizon, something that some posters have mentioned. A man like Nifong is not honest one day and then turns into a liar the next. As F. Scott Fitzgerald wrote, "Character is fate."

Remember, Nifong met his current wife by cheating on his first wife. This was a "courthouse romance," and he had an affair, which means he broke his marriage vows in a very public way.

As more comes out about the man's dishonesty, what is going to stop attorneys for people convicted under Nifong's direction from re-opening the cases? If we have a corrupt and dishonest DA, what does that mean to the cases his office has investigated and prosecuted? What does it say about the Durham police, specifically Gottlieb and Himan?

In other words, there are a number of real problems that Durham County and Durham City are likely to be facing, and they won't go away. When Nifong told the cheering crowd at NCCU that "my presence here means this case is not going away," I think that no one at the time realized just how far-reaching that statement would be.

locomotive breath said...

VIM-

I think I remember that the case management system and that "setting" nonsense went out the window when this case was declared "special" and assigned to a single judge.

Anonymous said...

to Bill at 1024
I respect your opinion and you have had many great insights into this travesty of justice by Nifong and his cohort. However, let us stay away from Nifong's private life and stay focused on the legal case at hand and its ramnifications. Many, many individuals have had indescretions in their private lives. I don't think any of us want to be judged by sins in our private lives. We are all sinners.

locomotive breath said...

Here's a flashback (May 5, 2006) to a Rita Cosby (barf) show...

"NIFONG: The defense attorneys would probably prefer to try the case against somebody who is less experienced than I am or against somebody who is less committed to the case than I am. And you can certainly understand that. I mean, if I were one of those attorneys, I wouldn‘t really want to try a case against me, either."

http://www.msnbc.msn.com/id/12644614/

I'm recalling that this was said in response to a defense motion asking for Nifong to be removed from the case. I don't know if that motion has ever been ruled upon. Read the rest of Nifong's comments and put it in context with what we know now. Disgusting.

Victim in Massachusetts said...

So now there playing be a whole new set of made up rules.

Will there never be an end to how far Durham "Justice System" LOL wil go these days.

To me judge Smith is just as bad or worse than the first two. He reminds me of judge Ito in the OJ case who just wanted his face out there. Well he is getting it right along side Nifong.

Anonymous said...

Bottom line is in order to get the indictment Himan and Gottleib lied to the grand jury, most likely coached by Nifong. The Grand Jury should be questioned as to what they were told by Himan and Gottlieb. And Himan and Gottlieb should be grilled under intense scrutiny as to what they said. They obviously lied, to what extent we won't know until the grand jury is questioned. All the secrecy without taping or recording the Grand Jury is ridiculous and just assists in prosecutorial misconduct. To get to the truth the grand jury must be questioned. They played a role in this travesty and should speak up. No more lies and hiding of evidence it is time to come clean.

locomotive breath said...

I was remembering correctly...

http://www.newsobserver.com/1185/story/524272.html

"In May, lawyers for Seligmann filed a motion seeking to have Nifong removed from the case. The request appears to have largely been dropped for now. Kennedy said the defense would likely want to keep Nifong on the case.

State law also allows a prosecutor to be removed under particular circumstances, including willful misconduct in office or conduct prejudicial to the administration of justice which brings the office into disrepute. The process begins when someone files a sworn statement in the prosecutor's county charging him or her with a violation. The senior resident Superior Court judge in that county, or a judge he or she selects, must review the complaint and decide whether it will go forward. If the charge proceeds, the judge convenes a public hearing on the complaint. That judge has the power to remove the district attorney."

bill anderson said...

A couple of points:

First, I do not apologize for speaking of Nifong's private life. What he did goes to the core of his character, and ultimately we see that his dishonesty has created a huge amount of trouble for many people. He is thoroughly dishonest, and I don't apologize for saying it. I look at his adultery in the larger context.

Second, Michael Gaynor has a good post today on Liestoppers about Houston Baker.

http://www.webcommentary.com/
asp/ShowArticle.asp?
id=gaynorm&date=061222

Some time ago, a Duke faculty member told me that Baker always wanted to be head of the English Department at Duke, but he had been accused of sexual harassment by a female graduate student. The faculty looked into the charges and found them credible. While Baker was not sanctioned by the university for what he did, his actions ultimately cost him the chance at being department chair.

One might call this an issue of Baker's "private life," but this man is dishonest and predatory, and if he is going to enter the debate as he has done, then his life is fair game. I would urge you to read Gaynor's piece to get a sense of just how evil Baker is. Even now, he says that Reade, Dave, and Collin deserve no defense. The man is evil, period.

As I said before, I am a Tennessee graduate and, therefore, am honor bound to despise Vanderbilt. The very public hiring of Baker gives me even more reasons to have two favorite teams: Tennessee, and whoever plays Vandy.

duke09parent said...

I still hope and expect that CGM will not show for the 2/5 hearing and Smith will then have go grant the motion to supress. The subsequent (or pending if the defense files one in January) motion to dismiss will then have to be granted.

If CGM shows up (her potential movie or book deal may depend on her continuing with this farce), the safe ruling for Smith will be that the ID's are admissable and their credibility will be for the jury. Smith can figure that iftthe evidence at trial is still so weak, he can dismiss at the end of the state's case.

Nifong has to go forward to trial if he can. He'll hope for a hung jury but even in the face of a dismissal or defense verdict he can tell his admirers he went to the mat for a poor, black, mother of 2 honor student, in spite of all the pressure put on him by the rich, powerful (white) Dukies and national press to drop the case.

Anonymous said...

The inaction by various offices and the people who hold them in this matter is astounding. I have racked my brain trying to figure out why. The only answer I have come up with is a term from Sociology called "dissolution of responsiblity".
An example of the term is illustrated by a man who is struck by a car and lies injured on the side of the road. The car that struck him leaves the scene.
If the man was struck on a remote, country road, the next driver on the scene is much more likely to help the man than would be numerous drivers who would pass him were he struck on a busy urban street. The responsiblity of the urban drivers is "dissolved".
In the Duke case, there are so many people who could and should step up and do something about what is happening that not one of them has.
They all appear to be waiting for another one of their group to make a move. They all seem to believe the next driver will surely stop and help the injured man.

Anonymous said...

Hey, evahbody, it be Preshous!

I gusses youall wonarin why there be seaman up my ass--it be hyganik--i had de himiroids

nothin like honkie seaman for de himiroids

thank you collin, reade, and davey boy--I'ma feel gooooddddddddddd

da Haley Burry will be me in movey

god bles the honkies, and god bless america

Anonymous said...

To Duke09:
I'll break the suspense for you. The Motion to suppress identification will be granted. As I said in another post, the only interesting question is what possible arguments can Nifong offer in opposition to it.
Honestly, I don't think it requires a courageous ruling by a judge to put an end to this monstrosity. It requires a judge with an ounce of integrity. If I am wrong on this, then North Carolina's judicial system is broken beyond repair.

Anonymous said...

JC, did you write that? You naughty boy.

Anonymous said...

RE: Vigilante Poster

Somewhere I remember reading that either the FBI or the NSA had reached an agreement with Printer Manufacturers to insert some type of microprinting technology to allow them to track the source of any printed document. This might have been post 9/11 but I can't be sure. Does anyone recall this?

Are there original copies of those posters in possession of the defense and have they been examined in an attempt to identify the orignator of the document?

Anonymous said...

11:54

i'm glad someone's asking an interesting question, ie, how do we punish duke's academic underclass

Anonymous said...

anyone read that PC post re duke trying to get its reputation back

author tried to couch the problem in white privilege, when we all know the problem is duke's racist blacks, durham's racist blacks, and a weak leader who goes on a roadshow instead of confronting the thugs

Anonymous said...

From Free Republic:

To: All

http://www.wral.com/
Durham District Attorney Mike Nifong moved Friday to drop rape charges against three Duke University lacrosse players.

Anonymous said...

Reporting now on radio NIFONG DROPPED CHARGES!!!!!!!!!

Observer

Anonymous said...

not all charges--kidnapping and sexual offense remain in place

Anonymous said...

Correction: Nifong dropped rape charges only according to Fox.

Observer

Anonymous said...

when's our special predator, crystal gail mangum, gonna be charged, mikey boy?

jc

Anonymous said...

RPE CHARGES DROPPED!!!!!!!

Anonymous said...

NO CONFIRMATIOIN FROM LIEFONG, BUT DEFENSE SAYS RAPE CHARGES DROPPED, BUT KIDNAPPING AND ASSULT CHARGES STAND.

Anonymous said...

what are the sexual offense charges?

hiring 2 dirt-ugly felons to dance for you, I guess