Saturday, September 23, 2006

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.


Anonymous said...

Excellent analysis. Why do you think the local newspapers are so passive about exposing Nifong's handling of this case? With the exception of Neff, are they afraid of Nifong and Gottlieb?

Anonymous said...

KC, I don't know where you get the idea that this is a judge that is not going to tolerate Nifong's tactics. I get just the opposite impression. What kind of a judge refuses to make the state tell the defense, what specific sexual acts were committed, and where the rape allegedly occurred? What kind of a judge even entertains Nifong's first motion, paltry as it was, on something as trivial as a phone survey, while serious defense motions challenging improper police procedures languish for months? Did you see the Durham Sun headline? That is what the Durham readers think came out of the hearing -- talk of a phone survey. What kind of a judge allows Nifong to hold on to discovery material, including the famous toxicology report that he was forced to admit having weeks before, until Nifong shows up in court weeks later. Any judge I've ever seen would have at least fined him. What kind of a judge allows Nifong to continue with his slights and snide remarks. Have you ever seen a federal judge allow that? Do you think these judges are letting him get away with all this stuff because he is the elected DA himself prosecuting the case? I do. And, it isn't going to change.

Anonymous said...

I meant appointed DA prosecuting the case himself. He obviously hasn't been elected to anything other than the democrat candidate in a primary.

Your analysis, KC, is on the money, except for the part about the judge, which I think is hoping for too much.

Anonymous said...

Three guys, three orifices, careful condom use with her struggling, and everything is over and zipped up in five minutes? Without spilling a drop?
Anyway, alert observers will notice that with this move Nifong has by now abandoned belief in any part, if taken verbatim, of the accusers original story. With respect to her statements in regard to condom use, the duration of it, the names and appearances of the accused - all of this he had to hammer into different shapes to get a even a loose fit with the hard evidence. Which is breath-taking when we remember that his whole case is based on little more than her credibility - the physical evidence being on the side of the defense..

Anonymous said...

I thought I read somewhere the use of condoms should have shown up in the DNA test. Yet that didn't happen here. So unless this kids invented a new kind of condom that doesn't show up in tests how did they leave no DNA? I can't believe these poor kids have to suffer through this farce for another month.

Anonymous said...

I understand where KC is coming from regarding the judge. Compared to Stephens and Titus, this one must seem like a gem.

Anonymous said...

Another Nifong statement that was in the Herald-Sun absolutely floors me:

"If he [Seligmann] can't provide for every minute in his alibi, it means the alibi is not airtight," Nifong said. "But if I had to speculate, I would say this whole event probably took about five minutes, 10 minutes at the outside. If [Seligmann] wasn't there, he doesn't have to worry about it."

"Doesn't have to worry about it." Nifong is making a statement that there are no wrongful convictions in North Carolina. The Discovery Law came about precisely because of a wrongful conviction and prosecutorial misconduct.

As far as I am concerned, the "justice" (sic) system in North Carolina exists to cover the behinds of state prosecutors, judges, and the police.

William L. Anderson

Anonymous said...

Nifong keeps on making statements that the Defense is not telling the whole truth about the DNA tests and what they revealed. In an article in the NewsObserver:
"Nifong answered that it was ironic that the attorneys now want the "typical witch hunt list" to cast doubt on how the DNA was tested."
Does anyone know what Nifong is talking about?

Anonymous said...

Excellent article KC. Nifong has to "speculate" about the 5-10 minutes? To me it means he still doesn't know when it happened.

Nifong must have taken Nifong 101 in law school. Thank goodness no one else took the same law course.

Judge Smith IS a lot better than Titus. Even if you don't agree with everything, the judge makes sense.

Anonymous said...

Has this been reported in other mainstream sources?

From a LieStoppers' perspective, the "highlight" of the Duke Hoax hearing came with the announcement by the prosecution that the recordings of all Durham Police Department radio calls for March 13th and 14th had been destroyed. It seems Durham Police Department tape use policy calls for tapes to be reused after 60 days. So, even though tapes were requested in April 28th motion by the defense, and ordered by Judge Stephens on May18th, the prosecution now maintains that the tapes were destroyed on or after May 13th, just five days or less before Judge Stephens' order.

Anonymous said...

I have started to see Nifong's exit strategy and saw it again yesterday. He HAS to have a plan to get out of this AFTER the election and BEFORE it goes to trial. I think he is going to put the entire responsibility for this travesty on the false accuser.

Yesterday he said that the defense would have to flesh out the exact timeline and sexual acts when the false accuser is on the stand. In other words, it's up to her to come up with testimony that can withstand the barrage of exculpatory evidence. One of two things can happen:

AFTER the election, Nifong will force the false accuser to respond in detail about how the rape could have happened. He'll actually question her and make her accountable.

AFTER the election, Nifong will proceed with a trial, let the false accuser be questioned under oath by three talented defence attorneys. She will be on her own. Her story will collapse. Nifong will feign surprise and paint himself another of her victims and a hero of the little people because he believed her.

Think about it. You lied to get out of committment. The DPD kept at you to identify someone. Your lie is telecast across the country. You know you could be in big trouble for lying. If you come clean, you'll enbarass Nifong and risk his wrath. He already had a bunch of your friends and associated arrested. If you stick with him, maybe he'll let you refuse to testify AFTER the election and not pursue charges. If you stick with your story, you will be put on a witness stand and undergo hours of horendous questioning.

What would you do? I would wait until AFTER the election and then try to get out of testifying. I would say the strain is too much. Nifong can portray himself as the protector/hero of the little people and say how the expensive defence attorneys put too much pressure on her.

Anonymous said...

It may be time to concentrate on getting federal attention. No one can depend on the local or national press, the state attorney general or the governor, Mr. Easley, who appointed the abusive prosecutor. Would it be more effective at this point to try to engage the FBI, the U.S. Justice Department, the Civil Rights Commission? What about the U.S. Senators from North Carolina? Could they help?

Anonymous said...

to anoymous 4:07

I couldn't agree more. It has become SO obvious that the NC judicial and politicial just do not care what the rest of the country thinks. PLEASE someone...what can we do to attract National attention. Who do we write...addresses?
This travesty is way too serious to waste any more time....!!!!!!!!!

Daddyx4 said...

KC: genius. the other posters are also very insightful as usual. i believe that the judge is actually doing a fairly good job in handling a politically sensitive and community polarizing matter. the da will have to turn over the dna, whether he likes it or not. the time lapse may give him some time to put out some other smoke signals and reflective info, but, ultimately, the truth will be revealed.

i am very troubled by the lack of media attention to true reporting. why the lack of investigative, truly insightful reporting - no need to actually be objective - go both ways. show your worth n&o! where is cash michaels recently? this story is worth it, even if many are afraid to speak up.

Anonymous said...

The feds aren't going to touch this. There is no outcry. Three white kids getting railroaded just doesn't do it. Let somebody set a cross on fire though, and that's a different story. FBI and justice everywhere.

Here's the tremendous evil of this prosecution: it is only happening because the dishonest, lying, politically motivated prosecutor KNOWS he has a chance in front of a Durham jury. Any other place, and the case would be laughed out of court, and the prosecutor would know that his reputation would be destroyed forever for prosecuting such a case -- literally a Hoax. No sane prosecutor would ever bring such a case.

Not in Durham. Nifong knows his jury, and while there is no evidence that he is a skilled attorney, he knows what he can sell in front of the likely jury. No evidence, outrageous accusations, wild stories with no corroboration -- no problem. He will inflame the jury with racially inflamatory accusations, a racially motivated , the case itself oozes race and race hatred.

At least some of the jurors will not care about the lack of any evidence. A hung jury has always been the best these three kids could hope for. One conviction is likely. This would be a victory for Nifong and he knows it.

So what you have is the most evil of men imaginable. A man who knowingly is prosecuting false charges, putting these kids through literal hell on earth, and a man who knows that he may very well be able to convict one or more of the kids because he'll be able to inflame the jury -- tell them something happened. It really is beyond sickening what is happening down there with this man. Imagine railroading known s into jail.

Why does he do this? Easy, he backed himself into a corner in the beginning when he jumped the on the investigation and he assumed the worst about these kids because he s them. No way out for him now, without essentially admitting he is an idiot, so he takes it all the way. This type of petty tyrant never admits he is wrong or backs down from a position.

This case isn't about getting elected, it is about hatred, pure and simple. The only solution is for him to be voted out of office and to install serious procedural reforms in North Carolina, like the right to a speedy trial and a preliminary hearing, so that this sort of thing never happens again.

Anonymous said...

Excellent comments all. There is a woman in Durham, Beth Brewer, who is actually working heart and soul to defeat Nifong. She has no vested interest but love for her community and utter repulsion for Nifong and his tactics.
Campaign resources are very limited, but she has a real chance. It's up to us to do more than vent. Show your outrage in a positive way...go to RN-EC website and help the brave Beth Brewer win this campaign.

I have never been a "political" person. But defeating Nifong is very necessary.

Anonymous said...

Dittoes to Joan Foster's 5:39 PM post. The Committee to Recall Nifong-Vote Cheek is looking for donations and possibly volunteers. You can donate up to $100 without it being reported publicly. Here is the link:

Anonymous said...

Concur with the last two posters. The Recall Nifong effort should be a priority for the next six weeks. I do think that federal authorities will take an interest in this case but only after waiting to see whether local institutions -- i.e., Judge Smith, the NC Bar, and the Durham electorate -- are able to impose some accountability on Mr. Nifong. That would obviously be preferable to federal involvement.

Anonymous said...

Agree with 7:06 PM that RN-VC should be a priority. Everyone should help them out as much as you possibly can:

As a true grassroots movement, the campaign to Recall Nifong - Vote Cheek will have virtually zero overhead. There will be no campaign headquarters, no salaried employees, no outsourcing of fundraising, and no hired political consultants. All participants in this campaign will do so on a volunteer basis and whatever can be done ourselves will be. Further, we anticipate that the majority of our campaign spending will occur in October and November.

You can donate via credit card here

Daddyx4 said...
This comment has been removed by a blog administrator.
Daddyx4 said... to helping the rn-ec movement. for those of us not in the "city of medicine", is our only option to contribute money? is there any insight into pressuring more local media (i.e., in charlotte, greensboro, w-s, etc.) to do some more investigative reporting? the work of a guy like cash michaels - thorough, well-rounded, honest, reporting - has made a huge impact on me and many others. also - any way to directly pressure concerned politicos?

Anonymous said...

Interesting that Dr. Brian Meehan at the lab where the DNA was tested is SO concerned about the "privacy" of those additional DNA matches on the accuser. Huh? Since when do lab technicians cite privacy concerns??

Anonymous said...

Since medical privacy laws were enacted that make it a federal crime to reveal any medical information about anyone without an official release signed by the patient or a court order. A lab tech is culpable for unauthorized release on behalf of his/her employer.

Of course, we all realize what's going on, but technically, every medical employee must be very careful to not reveal anything that can be interpreted as a violation of privacy laws.