Murphy's Latest

The government-funded Centers for Disease Control describes the National Sexual Violence Resource Center (NSVRC) as an organization that “identifies and disseminates information, resources, and research on all aspects of sexual violence prevention and intervention.” The NSVRC itself obtains part of its funds from the federal government, through a grant from the Center for Disease Control (though it is careful to point out that its website’s contents do not necessarily reflect the government’s viewpoints). The group’s honorary board includes Pennsylvania State Treasurer Barbara Hafer and former Syracuse University quarterback Don McPherson.

On January 9, the NSVRC posted an item called “Talking Points: Duke University Lacrosse Team Rape Case.” (Of course, the rape charges had been dropped 18 days before.) According to the NSVRC’s accompanying statement, “The following talking points offer some context and facts about this case in an effort to help support advocates in responding to the media.” Two voicemail messages left for NSVRC communications director Susan Lewis to ask which unidentified NSVRC figures “reviewed” the document before its posting received no reply.

As Bill Anderson pointed out at the Liestoppers Board, another victims’ rights group forwarded an earlier missive, this one dated December 21—ironically, the day that the accuser dramatically changed her story.

The author of both the “talking points” and the e-mail? Wendy Murphy. Her statements bring together a collection of Murphy’s distortions and outright inaccuracies (reviewed earlier in this post). It is almost as if she believes that she has the right to make defamatory public statements without consequence.

Reade Seligmann

Murphy (Dec. 21 e-mail): “In fact, the guy Seligman [sic] who claims his cell phone calls ‘prove’ his innocence actually lends support to the theory that he was the first guy to assault her—which is what she claims—and that it was oral—because he could have assaulted her for the first few minutes—then thought to himself ‘I’ve got to get out of here’—which explains why he frantically and repeatedly called a cab. who frantically calls a cab to see if they’re coming—in a space of five minutes—especially considering that the guy went to an ATM and a pizza place when he left—no real emergency there. Isn’t it convenient that he just happens to be one of the guys she accused?”

Of course, on December 21, the accuser wholly changed her story, and contended that Seligmann did nothing to her, because he said he was getting “married” the next day.

Contrary to Murphy’s statement, Seligmann called a cab not “frantically and repeatedly,” but once, at 12.14am. The cab arrived five minutes later. This information has been in the public record since May 1, when Seligmann’s attorney filed a motion laying out his alibi. The media has widely reported this fact.

Until the Murphy e-mail, no one, as far as I know, has ever claimed that Seligmann went to a “pizza place.”

At no point in any of her myriad, mutually contradictory stories did the accuser claim that one of her assaulters was using the phone at any point during the attack or left the scene during the attack.

Defense “Spin”

Murphy (Dec. 21 e-mail): “Remember that all the information we are hearing is coming from the defense side and spinners.” [emphasis added]

She wrote her e-mail partly to respond to revelations from the Dec. 15 court session, in which Dr. Brian Meehan admitted that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence. The hearing was open to the public—it was not confined to the “defense side and spinners.” Reporters from the N&O, Herald-Sun, WRAL, FOX, Duke Chronicle, and Los Angeles Times were present; I was live-blogging the hearing. A transcript of the hearing was made publicly available, and I posted it on the website.

Most people do not consider court documents to constitute “the defense side and spinners.”

Murphy (Jan. 9 statement): “The actual discovery documents turned over to the defense number in the many thousands of pages, yet approximately a thousand pages have been withheld by the defense. That is, the defense has shared some, but not all of the evidence provided to them by the prosecutor.”

This statement is the first I’ve heard of the defense withholding anything in the case, much less “approximately a thousand pages.” If Murphy has evidence of such a conspiracy, she should present it publicly.

Murphy (Dec. 21 e-mail): “Defense attorneys can lie with impunity—prosecutors can’t even tell the truth without getting in trouble.”

In fact, Rule 4.1 of the state bar’s Rules of Professional Conduct holds, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Nothing in the provision excludes defense attorneys from its terms.

December 15, 2006 Hearing

Murphy (Jan. 9 statement): “One can argue that Nifong’s withholding of this information was proper because the [accuser’s] sexual history, like the sexual history of the defendants, is constitutionally protected private information. It is improper for any prosecutor to disclose this information without a hearing at which a judge must make a ruling to decide whether sexual history is relevant to an issue in dispute.”

Murphy appears unaware with North Carolina law, passed in 2004. The state’s open discovery statute requires all results of forensic tests to be turned over to the defense. The prosecutor does not have the authority to withhold any information, anywhere in his file, from the defense.

Speedy Trial

Murphy (Dec. 9): “The simple point is—the defense COULD demand an immediate trial, right now—but they’re not . . . In short—if this were truly a weak case with no evidence, the defense would be pushing for a speedy trial.”

Once again, Murphy appears unaware of both the facts of the case and North Carolina law. In fact, Seligmann’s lawyer, Kirk Osborn, specifically asked for a speedy trial, a request that Judge Ronald Stephens denied. (Ironically, the other arch-Nifong defender, Georgia Goslee, cited this request to flail the defense, saying it was improper for defense attorneys to seek to rush the state.) Osborn then filed a motion to this effect, which was never ruled upon. North Carolina’s state constitution has no speedy-right provision, and the state operates instead under a “case management” system.

The “Bribe”

Murphy (Jan. 9 “talking points”): “The defense would have the public believe that this was a false report made to get money, but remember that according to a well-sourced news report by the Wilmington Journal in June 2006, the [accuser] rejected a payment of over 2 million dollars last spring to back out of the case.”

Yet again, Murphy appears unaware of the facts of the case. This allegation came via the accuser’s cousin and sometimes spokesperson, “Jakki” (who has complained at various points in the case that months have passed without speaking to the accuser) and the scarcely more credible Cash Michaels. The Durham police—no friends of the lacrosse players—investigated the claim. On June 30, the accuser told police that she had never made such a claim to her cousin, and police found no evidence to substantiate it. So Murphy is making a claim that neither the accuser herself nor the Durham police consider truthful.

The Workings of the Judicial System

Murphy (Jan. 9 “talking points”): “Defense attorneys can spin, distort, and omit facts while the prosecution must remain silent until trail.”

This statement, of course, is absurd. Nothing has prevented Nifong from filing responses to any defense motions. He has not done so.

Murphy (Jan. 9 “talking points”): “When defense attorneys unfairly taint the jury pool against the interests of the victim, there are no similar sanctions against them because a judge cannot punish the accused for the bad behavior of his lawyer.”

Yet again, (a familiar refrain), Murphy appears unaware with the facts of the case. Since July 17, both sides have operated under a gag order, which has limited what either Nifong or defense attorneys could say about the case to the media. Indeed, Nifong’s pre-election comments would seem like the most blatant violation of this order. But had the judge deemed any defense action a violation of the gag order, the judge could have held them in contempt of court. Even Nifong never asked for such any sanction.

Murphy (Jan. 9 “talking points”): “Defense attorneys are well aware of their right to ask the judge who handled the DNA issue to punish Nifong for suppressing evidence by dismissing charges; the fact that they did not complain to the judge strongly suggests an obvious understanding on their part that Nifong did nothing wrong.”

The Nifong-Meehan conspiracy only came to light on December 15; a full transcript of the hearing wasn’t available until several days later. Shortly thereafter, the Linwood Wilson “notes” appeared and the accuser’s story dramatically changed, setting into motion the chain of events that culminated in Nifong’s departure. Defense attorneys still have the right to seek sanctions against Nifong, a right they must balance against the need to create collegial relations with the new prosecutors.

Murphy (Jan. 9 “talking points”): “Criticism has surfaced concerning the fact that Nifong did not interview and talk to the [accuser]. We do not know the history of his interaction, or his offices’ interaction with the [accuser].”

In fact, Nifong stated in court on October 27 that neither he nor anyone from his office spoke to the accuser about the facts of the case. And he admitted on Dec. 22 that the previous day’s session with Linwood Wilson constituted the first such interview. Both events, which laid out the “history of his interaction, or his offices’ interaction with the [accuser],” received extensive media coverage.

Change of Venue Motion

Murphy (Jan. 9 “talking points”): “If this case is as weak as the defense attorneys would have us believe, and if there is so little upon which to build a case, then it is indeed interesting that they were concerned enough to have filed this motion for change of venue. This suggests that in fact the defense is taking the case seriously and doing all it can to do battle on behalf of their clients.”

This statement is, simply, bizarre. Can an attorney actually be criticizing a defense team for “taking the case seriously and doing all it can to do battle on behalf of their clients”?

Electoral Analysis

Murphy (Dec. 21 e-mail): “Nobody seems to care that despite claims that the prosecutor brought charges so he could win the 'black vote,’ he didn’t win the majority of black votes in the primary and more important, he lost a ton of wealthy white votes—something he surely knew would happen if he brought charges—yet he brought the charges anyway.”

In fact, Nifong, who appeared to be dead in the water before the case broke, won a convincing plurality of the black vote (by somewhere between 15 and 18 points, compared to a 3-point margin of victory) against a black candidate endorsed by Durham’s major black PAC and a white nominee (Freda Black) who had aggressively courted black voters. “Wealthy white votes” are few and far between in Durham, and the 20 percent of Durham voters who were Republican couldn’t vote in the primary. Losing those voters posed no problem for Nifong in May.

The Evidence

Murphy: “It is not unusual for there to be minor inconsistencies in victims recalling traumatic events.”

In this case the accuser has differed—among other things—on:

• the number of alleged attackers;
• the number of other dancers present;
  
• what each of the alleged attackers did;
• what time the alleged attack occurred;
• the names by which the alleged attackers called themselves;
• the name by which she called herself at the party;
  
• whether the alleged attack was a rape or a sexual assault;
• whether she was intoxicated;
• whether she was punched;
• whether she was kicked;
• whether the second dancer was an accomplice in the rape;
• whether the second dancer stole her money.

The accuser has also identified people with 100 percent certainty as attending the party who could prove that they did not attend the party and in one case did not even spend the night in question in Durham.

Such a list extends beyond “minor inconsistencies.”

Murphy (Jan. 9 “talking points”): “Additionally, there is some indication that the [accuser] may have been drugged; there were reports of her going from sober to totally unaware and then back to not-intoxicated by the time she reached the hospital.”

Yet again, Murphy appears to have demonstrated her unfamiliarity with the case. A toxicology screen on the accuser was negative; and the accuser admitted taking Flexeril with alcohol despite instructions not to do so.

Imagined Events

Murphy (Dec. 21 email): “The line-ups were not unlawful. According to the president of Duke, ‘many’ players were not at the party—and many NON-players WERE.”

Duke president Richard Brodhead never claimed to know who and who did not attend the party; Murphy is simply making up the statement.

In any event, her point is irrelevant. On March 31, Nifong instructed the police to confine the lineup to all 46 white lacrosse players—each of whom had been publicly labeled a suspect eight days before. Durham procedures—as have been widely reported—require five filler photos per suspect.

Murphy (Dec. 21 e-mail): “It is also important to remember that the defense claims NOW that they wanted to meet with the DA to show him evidence of their innocence—but the simple truth is—a meeting between the police, prosecutors and defendants was scheduled BEFORE charges were brought and at the last minute, the defense CANCELLED the meeting. Thereafter, the evidence was brought to the grand jury. The defense has no business complaining about not having a chance to show evidence to the prosecutor.” (CAPS in original.)

Not even Nifong has claimed that “a meeting between the police, prosecutors and defendants was scheduled BEFORE charges were brought.” In fact, until this Murphy e-mail, I’m unaware of anyone commenting on the case in any forum who has made such a claim.

Moreover, Murphy appears unaware of Rule 3.8, comment 2 of the state bar's ethics code: “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” A prosecutor refusing to meet with defense attorneys to examine evidence they claim will prove the innocence of their client obviously violates this rule.

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One victims’ rights advocate with whom I spoke said that the movement as a whole would be loath to criticize a prosecutor who was standing up for the complaining witness. But posting inaccuracy-laced material such as Murphy’s undermines the movement’s credibility. How could anyone who has closely followed this case hereafter trust any statement from the NSVRC, knowing that the organization disseminated Murphy’s “talking points”?

As for the Centers for Disease Control, perhaps it would be worth knowing how the federal government could, even indirectly, be funding the dissemination of Murphy’s assertions on the case.