Now that Mike Nifong has admitted he has no physical or forensic evidence linking any of the players he has targeted to any crime, he has made clear he is relying solely on the identifications made by the accuser in the April 4 lineup. He doesn’t, however, profess to believe anything that the accuser actually said about the three players ultimately indicted, since her remarks about them on April 4—each in a different way—are wholly inconsistent with the evidence in the case.
Since the on-line transcript of the lineup is awkward to access, I thought I would type up the relevant sections of the lineup, with commentary from me, and from various experts along the way.
Gottlieb: Investigator Himan and I met with Durham Co. DA Michael Nifong in reference of doing a photographic line up with the new mug shot style photographs contained during the Non-Testimonial Order procedures conducted on March 23, 2006 at the Durham Police Forensics Unit. Mr. Nifong suggested we put together the mug shot type photographs into a group since we are under the impression the players at the party were members of the Duke Lacrosse Team and instead of doing a line up or photographic array, we would merely ask the [accuser] to look at each picture and see if she recalled seeing the individual at the party. If in fact she could recall, just let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual.
As we all now know, this setup violated in virtually every way Durham procedures, which required five filler photos per every suspect (Nifong had identified all 46 players as suspects). The
Nifong defended his approach to the New York Times, musing, “What is a lineup?” The bizarre rationalization prompted me to e-mail every district attorney in
D.A. #1: “We have tried to get [charging authorities] to adopt the latest photo identification techniques—showing a series of photos using an examiner with no knowledge of the suspect’s identity. We would not accept an identification made as you describe.”
D.A. #2: “In my jurisdiction if a law enforcement agency showed the photos to a victim for the purpose of identification we would consider it a photo lineup.”
Given that the North Carolina Conference of D.A.’s cited Nifong’s conduct in the case as a reason for him to step aside, there seems to be little doubt that every other district attorney in the state understands what constitutes a lineup, even if Nifong does not.
The procedure itself began at 11.29am.
Gottlieb: I sat down with the [accuser] in the briefing room at the conference table and explained to her we were going to sit in the far side of the room at the desk and look at people we had reason to believe attended the party . . . I explained to her during the time she was looking at each picture she should merely tell me who she remembered seeing at the party, or tell me if she did not recognize seeing an individual at the party . . . I also told her it was important to tell us if she recalled seeing a particular individual at the party and to let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual. She agreed . . .
IMAGE 1 (Matt Zash)
Accuser: I don’t recognize him.
Even though Zash was a resident of the house and police had (unsurprisingly) found his DNA, the accuser couldn’t recall even seeing him—a good tipoff that she was simply engaging in wild guesses.
IMAGE 4 (Matt Wilson)
Gottlieb: Do you recognize the person?
Accuser: He looked like Bret but I’m not sure.
Gottlieb: Who is Bret?
Accuser: One of the guys that [allegedly] assaulted me.
Gottlieb: One of the guys that assaulted you. OK.
Note that Gottlieb asks no follow-up questions; compare his handling of
Not a scintilla of evidence exists that Wilson did anything wrong, by the way.
IMAGE 5 (David Evans)
Accuser [after a lengthy delay]: He looks like one of the guys who assaulted me sort.
Gottlieb: OK. How sure of it are you on this image?
Accuser: He looks just like him without the mustache?
Gottlieb: OK, so the person had a mustache?
Gottlieb: Percentage-wise, what is the likelihood this is one of the gentlemen who assaulted you?
Accuser: About 90 percent.
Before Nifong indicted Evans, defense attorneys attempted to present photos of Evans on March 11 and March 14 showing that he had no mustache. Nifong refused to look at them; the photos were eventually incorporated into the defense motion on the lineup.
To my knowledge, before her statement in response to seeing Evans’ photo, the accuser had never claimed that one of her attackers had a mustache.
IMAGE 7 (Reade Seligmann)
Accuser: He looks like one of the guys who assaulted me.
Gottlieb: How sure are you?
Accuser: 100 percent.
Gottlieb: You’re 100 percent sure, OK.
Gottlieb: How did he assault you? Which one was he?
Accuser: He was the one that was [allegedly] standing in front of me that [allegedly] made me perform oral sex on him.
Gottlieb: What else did he do?
Accuser: That was it.
Of course, when the accuser had seen a photograph of Seligmann nineteen days before, she replied that she was only 70 percent sure of even seeing him at the party, and couldn’t recall when or where she had seen him. As an expert in lineup ID processes,
Moreover, Seligmann performed the role the accuser had assigned to Adam, the sometime groom in the accuser’s tale. (In one version, Adam was getting married; in another, Matt was.) Adam did many other things, according to the accuser—he and Kim Roberts helped her get dressed; he then joined Roberts in helping her to the car.
Unfortunately for the accuser, she picked the wrong person: at the time she was passed out on the back porch and then helped to the car, Seligmann was in a taxi, photographed at an ATM machine, at a restaurant, and then back in his room.
Nifong therefore has based his case against Seligmann on the remarkable assertion that Seligmann possessed the ability to be in two places simultaneously.
IMAGE 9 (Brad Ross)
Accuser: He was there.
Gottlieb: In the bathroom, or at the party?
Accuser: At the party.
Gottlieb: OK, so he was not the person who assaulted you. Do you remember what he was doing at the party?
Accuser: He was standing outside talking to the other dancer.
In fact, while the accuser remembered Ross as standing outside talking to Kim Roberts, Ross was actually in another county—as Nifong knew at the time he made indictments. Of the 46 white members of the lacrosse team, Ross is the only person that the accuser was twice 100 percent certain of seeing at the party.
IMAGE 26 (Chris Loftus)
Accuser: He was in the living room.
Gottlieb: He was in the living room? What was he doing there?
Accuser: Sitting down.
In fact, as Nifong knew when he made indictments, Loftus had been in his dorm room since 11.00pm. The accuser never laid eyes upon him.
IMAGE 27 (Nick O’Hara)
Gottlieb: Do you recognize him?
Nineteen days before, the accuser said that she was 100 percent certain she saw O’Hara at the party.
IMAGE 30 (Fred Krom)
Gottlieb: Do you recognize him?
Nineteen days before, the accuser said that she was 100 percent certain she saw Krom at the party.
IMAGE 40 (Collin Finnerty)
Accuser: He is the guy who assaulted me.
Gottlieb: What did he do?
Accuser: He put his penis in my anus and my vagina.
Gottlieb: Was he the first or second one to do that?
Accuser: The second one.
Gottlieb: Is he the one that strangled you or not?
On December 21, in what has been claimed as the first discussion about events of the evening between the accuser and a representative of supervising investigator Nifong’s office, the accuser contradicted this version of events. So Nifong is keeping Finnerty under indictment despite the accuser having retracted most of the comments above.
IMAGE 41 (Kevin Mayer)
Gottlieb: Do you recognize him?
Gottlieb: Do you need some tissues?
Nineteen days before, the accuser said that she was 100 percent certain she saw Mayer at the party.
Flawed procedures beget flawed results. Corrupted procedures beget corrupted results. Flawed, corrupted procedures beget flawed, corrupted results.
KC, I love your daily updates. I wait till twelve every night to print them out and read in bed.
Keep up the good work.
Another sizzling opus by KC!
"Nifong therefore has based his case against Seligmann on the remarkable assertion that Seligmann possessed the ability to be in two places simultaneously."
Wouldn't it be novel if Nifong were to go before a judge and argue that Seligman possesses the charism of bi-location? He may be reduced to doing just that.
Thanks for laying it out for us.
Re: Gary Wells' [admittedly rhetorical] question "How does she get more positive with time?”...
Easy, you show the AV DukeLAX team members' pictures at least 3 times (to say nothing of having them on at least 2 different 'wanted'-type posters and plastered in the print & TV press constantly for a month or so).
This is why this criminal case is O-V-E-R. In the unlikely event that the accuser takes the stand, there is no way she can explain any of this in a rational manner. The judge will toss this faster than the Ninth Circuit tosses a death sentence.
What's Nifong's argument gonna be? It boggles the mind. There's just no defending this. None. None.
And Nifong cannot be too excited about getting AV on stand--not like she is his buddy. She'll sell him down the river.
Nifong is just trying to figure out how to get off the runaway train,
It's one thing for Nifong to have tried to keep the defense from finding out about the exculpatory DNA evidence--he might have gotten away with it if the defense had not fought so hard to compel him to turn it over, or (more likely) the judge had not granted that motion. But the lineup, and the transcript that goes with it, is perfect evidence for a wrongful prosecution case against Nifong--and he had to have known that. In the short run he was able to get his indictments, thus pandering perfectly to the AA community and win the primary election. But in the long run he could never have avoided the end result of his unethical and illegal procedure with regard to the lineup. It's like cheating on a test, when you keep the crib sheet in your desk--you might ace the test, but you've left the evidence for the teacher to find, and then you're in trouble of getting kicked out of school! What an idiot!
Now that the rape charges are dropped, the Duke Lacrosse team will be in a new lineup and Nifong will have the accuser identify exactly who it was that didn't rape her!
U-G-L-Y Liefong ain't got no alibi, this case is UGLY, yeah yeah it's UGLY.
Duke LAX trial lawyers: not like you need the encouragement or the reminder, but this would be the first document in your complaint and press releases. Figure out someway for it to go up on Drudge and The Smoking Gun everyday.
Hammer these "people" and hammer them hard!
Let us not forget that Nifong still hasn't dropped the other two ridiculous charges. That's the main point to stay focused on. Where is Attorney General Gonzales? Does N.C. Attorney General Cooper believe this case should be ended? What does Governor Easley think of the man he appointed to the DA position? What about the lacrosse players' civil rights? Can citizens move to recall Nifong? What would it take to impeach him?
"...he might have gotten away with it if the defense had not fought so hard to compel him to turn it over, or (more likely) the judge had not granted that motion."
One might add '...or if the defendants hadn't had the wherewithal to pay for the analysis necessary to uncover the [hidden] exculpatory evidence'.
Can you (we) imagine what it must have cost to have a 3rd party expert or two pore through those thousand-some-odd pages?
Don't misunderstand me - I'm not dissing the defendants because they have the money to put up a good defence. It just shows how much stays swept under the rug when a person can only get a PD attorney, and a perfunctory defence.
I hope you devote lots of space in your book to an attempted description and analysis of what makes Nifong tick. Just his academic redord alone indicates he is not dumb, but this whole thing is about as dumb as you can get. If he is evil, why hasn't it been noticed before by his bosses and others? How could he ignore what all of this would do to his son? Did he just come to believe that no one would seriously question a DA? Surely he has tried other cases against defendants who could afford the best in defense counsel. I really do not get it.
gprestonian~I agree. All the more reason to get Nifong out of there! He may think that he is not the problem, but he has been THE problem from the beginning. If he has done this to guys who have the means to hire attorneys who will turn over every stone and look into every nook and cranny (sp?), then what has he done to other defendents. He cannot be allowed to be a lawyer, and certainly needs to be removed from the DA position. I want to know where Easley is?? He has not made one comment (that I'm aware of) about this huge case in his state being wrongfully prosecuted by the DA he appointed (oops!!)
So basically this is Nifong's entire case. These "identifications" - which are all over the board, and whatever story the accuser feels like telling on the day she testifies. And whatever version of the story this will be it won't involve anyone inserting their penis into her vagina. Even though she specifically stated that this is what Finnerty supposedly did when she ID'd him. Right.
If Nifong doesn't wind up disbarred and in prison I'm going to be very disappointed.
1:05 - NC has no process for recalling an elected district attorney. Durham voters really screwed up on November 7th.
Easley and Cooper don't have the guts to say what they should be saying -- and claim they don't have the power to stop this prosecution or remove Nifong.
At this point only a Judge could take action in either regard.
I'm not a lawyer but have studied this quite closely -- any comments to the contrary from those familiar with NC statutes and election laws are welcome!
I suspect not every thing that happened during this key photo array session is recorded. I would love an analysis of the tape to see if and when it was stopped during the session. I believe the session went down something like this:
1. I believe Mangum was briefed on who not to ID and MAYBE on who to ID.
2. The photo array session begins and Mangum IDs photo number 3 who she was told not to ID. Although not reflected on the transcript, I bet investigator Gottlieb yells at her.
3. Mangum nervously IDs the photo number 4 Evans but after being yelled at she is only 90% sure. Being too clever by half, she throw in the mustache because the standard instructions warn that facial hair and other aspects of a person can change.
4. She goes to 39 without picking anyone else. I suspect by this time she is being yelled at again. So she picks out Finnerty. [If she was told to ID anyone it would be Finnerty due to the DC incident. ]
5. I suspect Mangum thinks she is done. She has IDed 3. I suspect Gottlieb really gets mad at here now because he only has 6 photos left to go and she thinks she is done but he is ignoring her first pick and is only counting two. Thus she picks the next guy, Seligmann number 41.
6. The crying noted in the transcript is morely likely from Gottlieb yelling at Mangum more than anything else. Although that is not reflected in the transcript of course.
So that is my best guess how this photo array was really conducted. I suspect like every thing in this case the reality is worse than what Nifong led us to believe.
BTW, I forgot to add say 2:10 is JLS. I have for many months put this analysis on FreeRepublic thread on this case.
Regardless of the preposterousness of this case, the judge may not toss it. The Governor/Feds/whoever would rather stick hot needles in their eyes than ever touch these issues, for obvious reasons. The 88 are never going to recant - for equally obvious reasons - and if Nifong can somehow drag this steaming POS to trial (no conviction necessary), he may still squirm out. It's a filthy mess, but one can see how it all might happen. There's a certain maddening, nightmarish logic to it.
Who expects decency or intelligence or justice from such people? However, I did expect better than to find the previous entry in this blog entitled "Duke Does the Right Thing". Was that some kind of sick joke?
I'm a bit frustrated. By now surely we know, and surely virtually everyone following the case knows, that Nifong is corrupt and the prosecution is meritless. But it doesn't really make any difference, does it? It's just words floating around in blogs. The police will obey Nifong, he will continue to collect his paycheck, the state will pick up his legal fees, the kids' lives are damaged.
If the Judge does not throw out the photo ID, could that issue be appealed before a trial?
Also Jamie your analysis was logical about no one stopping this before the bar charges were filed or the NC DAs released their letter to Nifong calling on him to recuse himself from this case.
That puts both the NC Bar and the NC DAs out on a limb. They want this thing dead. I don't see how either group can stand by and let Nifong take this to trial without looking toothless. It seems to me the NC Bar association would schedule Nifong's trial the same day as NC v. Evans, Finnerty and Seligmann if they had to to avoid losing face.
K.C. Johnson for President in '08! He could run on a straight Justice Party ticket. Great run through the lineup, K.C.!
I really like the quote from the lineup expert, as it shows just how dangerous someone like Precious can be.
"Said Iowa State’s Wells, the flawed identification of Ross places the accuser 'in the questionable category of eyewitnesses who [are] capable of being positive and wrong. That’s a red flag.' "
I have also found it interesting that the Durham P.D. had FOUR officers in the room when Precious made her 4/4/06 identifications. That is pressure being put on her to make an ID.
Also, the DPD goes from crappy photos to a Power Point presentation; the subtle hint being that they spent a lot of time and money on this, you better make an ID.
Another aspect of the lineup that blows my mind is that Precious became more and more comfortable in her LYING. Watch her, as she becomes more and more comfortable in falsely identifying people of the most heinous crimes.
Here are her "identifications" in chronological order:
IMAGE 4 (Matt Wilson)
Gottlieb: Do you recognize the person?
Accuser: He looked like Bret but I’m not sure.
IMAGE 5 (David Evans)
Accuser He looks like one of the guys who assaulted me sort.
IMAGE 7 (Reade Seligmann)
Accuser: He looks like one of the guys who assaulted me.
IMAGE 40 (Collin Finnerty)
Accuser: He is the guy who assaulted me. [She crys]
This liar actually goes from "I'm not sure" to "sort of" to a more confident "looks like one" to a down-right positive, "He is the guy who assaulted me," finishing with a tearful Oscar-worthy ending.
It is repugnant how this con-artist, with willing instruction from Gottlieb, graduated from a timid false accuser to a very
confident and comfortable photo lineup false identifier.
Dear Mr. Johnson,
You have provided an important public service.Fact based, to the point and exposing this travesty of justice. I can only hope that the accuser throws in the towel at the 2/5/07 hearing. Then,on to putting Nifong under the spotlight for his conduct in ethics hearings &civil lawsuits
This really needs to get out to the press and splashed all over TV.
The only thing missing is the FA
claiming that she was abducted by
aliens for 30 minutes.
It seems that the NY Times is reverting to its old ways. Duff Wilson's singular by-line graces the story that the Newspaper of Walter Duranty and Jayson Blair has on the re-admission. Not surprisingly, the story once again tries to make it sound as though Reade and Collin just might be guilty of rape. That is right, rape.
Anyway, read it and weep. Duff is back in all his Jayson Blair glory.
The NC Association of DA's has no power over Nifong. All they can do is publicly criticize him and disassociate themselves from him and his tactics -- which is what they did in their letter. The NC Bar, on the other hand, has the power to disbar Nifong, and I fully expect that they will do so, and that they will do it within the year. Nifong's career as DA (and as a lawyer) will end in 2007.
Anyone know any click stats for this blog? I'd hate to just hear that we are preaching to the choir.
Early on in the case I looked at the NC Constitution which seems to provide for the possibility of impeachment for any elected official who breaches the public trust. Take a look at Liestoppers today for the extremely interesting suggestion of a retired NC DA. A citizen may file an affidavit calling for Mr. Nifong's removal for willful misconduct among other grounds. I would imagine many people would be happy to do the honors of filing such an affidavit which would then be heard by a judge.
re: clik stats.....i dont know but i suspect it's growing at a rapid clip. this blog is linked all over the web by distinguished journalist who most likely use it as their primary reference to whats happening in this case.
IMO Nifong was deliberately NOT conducting a line-up, and therefore thought he was not violating accepted protocol. Gottlieb said their powerpoint photo array was "instead of a line-up" and Nifong said to the NY Times "what's a line-up?" He thought if he wasn't INTENDING to hold a line-up, he didn't need to follow the protocol. And if the AV surprisingly ID'd her "assailants" during the non-lineup they could tell anyone who asked that they were simply trying to narrow down who was at the party, but fortunately she actually ID'd the "perps." Now Nifong says photographic ID's are not really reliable--the only way you can tell "if you have a misidentification is when the (alleged) victim sees them (in person) in court." He thinks he is a master manipulator--it's sort of like "it depends on what your definition of 'is' is."
I think he fully intends to have the AV get him off the hook by suddenly realizing she isn't sure of her ID's in court (he may even take the offensive in questioning her to show he really is trying to see that justice is served.) The problem is, our system is not supposed to allow people to randomly be indicted (because their picture looks like the assailant, sort of) and then ID'd (or not) 10 months later. That's why there is supposed to be a REAL line-up.
Any chances that the false accuser will be charged?
This false accuser has been and is currently facing prison time:
yes sir, nifong is truly and totally screwed if that is all he has. for him this case is a tiger he is riding and he can't get off -- he is screwed if he keeps it going and he is screwed if he drops it. i bet he is just praying he is not removed from the case before feb 5, when he knows his only witness will be crushed. then he can blame this on her and hope it all goes away...fat chance
This case is over in a matter of weeks (if not days), and Nifong's career is over in a matter of months. It doesn't matter what Nifong or Crystal Mangum do now. There's no easy or honorable way out for either of them. Nifong's recent statements just show that he is in complete denial about where his life and career are headed. If Nifong wasn't such a pig, I might even feel a little sorry for him. I do feel sorry for his son, who will have to live with the shame and dishonor that his father has brought to the family name.
I think the Matt Zash situation needs to be explored further because somewhere along the line, Nifong made a decision NOT to indict him, but what could possibly be the reasons for this omission?
Of course he is innocent too, however, she identified him from the rigged photo line, he also has the same first name she identified, he lives in the house, and he even had his DNA nearby.
"No", says Nifong (in effect), "Unlike the other three, he's not a suspect at all, we won't ever charge him with anything. He's clean."
What is it that Nifong saw in Reade, Colin and Dave that he didn't see in Matt?
Will Nifong ever address this issue directly?
Nifong's position on the line-up/non-line-up is ludicrous. Long before DNA, the Supreme Court addressed issues relating to unduly suggestive identification. Nothing about the identification process involved the word line-up. Overtime, the original protections were deemed inadequate and the protections were debated over many years and admitedly it is something of an inexact science to figure out what is unduly suggestive or not. However, there is not rule that if it is not a "line-up" then that whole branch of constitutional protection does not apply. When Nifong is saying it is not a line-up, he is saying as a matter of twisted logic, then all the protections against unduly suggestive identication don't apply. But there is not a whole other non-"line-up" branch of identification exempt from the constitutional protections.
It is an admission that should preclude the need for hearing.
to 8:19--I don't think she ID'd Matt Zash, although his DNA was found in the house he lived in. She ID'd Matt WILSON who is the son of a Duke prof. but she waffled on that ID and for some reasonGottlieb didn't pursue it--he never asked her for a percentage, so he dismissed it immediately.
I'd like a private detective on Crystal and Nifong. I would bet my house that he and Gottleib are giving her explicit instructions and tutoring on how to continue her lies for Feb 5. If one of them goes down they all go down. So the band of criminals will stick together. Since Nifong has her as his hostage and she willing has gone along with this farce they will do anything to keep it going. Survailance video would be nice of Nifungus meeting her in one of her seedy hotels.
Is there any hope that Judge Smith will end this before the Feb hearing? I want these so much for boys to be able to begin the semester on time (if they so choose )...without these despicable accusations/indictments still out there.
What's the possibility of early action by the judge?
The choir you are preaching to is the conventional media.
which still (as of this date) have an unparalleled mechanism in place to rapidly disseminate news and opinion to the public.
And the media reporting on this case read this blog voraciously
Aside from the obvious assault against common fairness, nevermind Durham and NC line-up policies - what on God's green earth is Nifong/Gottleib's explanation for not including "all known" party attendees in the line-up?
Obviously those 2 young men are innocent ALSO, but their exclusion based on the notion they were not lacrosse players is ABSURD. - Do you thing CGM could tell a lacrosse player from a non-player ? Yah, neither do I.
This alone proves the DPD's illicit agenda.
Send Gottleib and Nifong to jail, after draining their finances on attorney fees - a taste of what they wantonly dish out.
I've always taught our kids that their actions represent the family and that what they do impacts our family name. Of course that goes for parents too.
I find it mind-boggling that Nifong would destroy the reputation of his family, wife and son over his stubbornness.
I think that a lot of parents consider raising their kids to be their life's work which is why you have so much parental outrage over this case. I'm pretty shocked that
Nifong can't see the effect that this case is having on his son (see the interview after the private swearing-in ceremony). Can you imagine what it's like to be a kid in middle-school or high-school with everyone knowing that you father is a persecuting innocent kids?
Perhaps Nifong's inability to see
the damage he's doing to other
families reflects an inability to
realize his own self-destructive
I'm hoping this detailed analysis
gets into the press. Plenty of
material on this site for 60 Minutes, part II or an hour news magazine show.
To 9:18 Good question.
Can an atty out there opine on this: What is the possibility/probability of The judge acting to dismiss before the hearing in Feb?
I am a little confused. The Feb 5 hearing is about suppressing the photo Id's and Crystal's in court ID. How can the judge hear those motions if Crystal shows up in court? This leads me to believe she is NOT going to show and Nifungu is not going to object to the motion to dismiss. Or the judge will grant the motions of the defense and then grant the motion to dismiss.
Can anyone tell me how the AV will testify about her ID of the alleged attackers on Feb. 5?
Does she simply point to pictures of the defendants and say "I'm sure they're the one's"? Looking at similar pictures to those splashed all over every major newspaper in the US...plus Time Magazine? After being coached for hours by the DPD SS commandants?
How hard is it to make positive ID's when nearly 90% of US citizens living outside of Durham could do the same.
Seems to me that the only thing a judge can/should do is throw out the line-up procedure without wasting time on testimony. All he would have to do is read the DPD's notes on it.
I am glad that you put this together with experts on eye witness identifications. One of the most disappointing features of this fiasco has been that rape crisis workers who have been interviewed have acted as though the alleged victims problems with identifying her supposed attackers was normal for crime victims and the stress they experience. Their comments had no basis and the simple fact is that the difficulty of identifying someone never gets better with time and their is no reason to assume that any stress she may have been under could explain the widely varying stories she told about the evening.
I don't think there is any chance that the judge will kill this case before February 5, 2007 nor do I think it would be proper for the judge to do so.
Judges act in response to motions filed by the parties and then only after opposing counsel has had notice and an opportunity to respond. There is no pending motion to dismiss and there are no other motions pending that are ripe for rulings.
At the February 5 hearing the judge will address the motion to suppress the photo id and any subsequent in-court identifications. There is a strong likelihood that this motion will be granted and this will kill the case.
Please do not become inpatient with the judge in this case. He is following proper legal procedures as he should in a case where the eyes of the nation are on him. The last thing this case needs is for the Judge to make a mistake that will give Nifong the opportunity to argue he is being unfairly treated by the court
9:49 -- excellent summation, thank you.
Question for those who know more about legal procedure than the rest of us -- why haven't the defense lawyers filed a motion to dismiss? Is that sort of thing less applicable in the real world than it is in all the Law & Order spinoffs we watch?
I'm not saying it's a bad idea or good idea -- I'm asking out of sincere curiosity.
Nifong should stay on as the prosecutor but should be immediately replaced as the lead investigator. Then someone who is objective, competent, and unimpeachable should be chosen and immediately sit down with the FA and have a long talk. I’d love to have the chance to place a bet that Nifong coerced her into making the ID and has been coaching her for her court appearance – I’d take any odds on this. Imagine how he’s going to look when it comes out that he conspired both to hide the exculpatory DNA evidence and to manufacture the ID. Given everything that has come to light so far, I’d be completely floored if he had done anything less.
With this interview in hand, Nifong should be made to sit in open court with the press present to hear testimony to this effect. The case dies on the spot, and Nifong does a perp. walk on the way out. He’s now in the position of trying to undermine the credibility of his star witness, this exemplar of humanity who we very plainly did not believe. How else would one explain not going after the multiple sources of the DNA that was found on someone claiming they had no contact for a week and had been gang raped? He knew he had someone who was willing to lie and he pressured her into lying in a way that fit his designs.
And, don't be too sure that the defense hasn't tailed the FA, Nifong, and/or some of the fine DPD officers involved in this affair...
I just commented on another blog that at least one member of the defense team had filed a motion months ago to remove Mr. Nifong from the case. I believe, unless I am mistaken about the existence of that motion, it is, in fact, overripe for ruling.
I am also shocked and curious as to why Zash was not indicted (falsely of course). I read a story about him and his family and his family was to the point that they were preparing for him to be indicted. They thought for sure he would be.
4:37am Gregory & 9:48am Anon:
Not to take anything away from KC's excellent presentation, but most (all??) of the line-up expert's quotes were taken from N&O and other media articles. KC links to the docs where they were first published. The 'Conflicting Identifications' .pdf was a sidebar in an N&O article.
Speaking of experts - have you seen anyone do a 'DNA for Dummies Like us :)' presentation of the DSI DNA letter/report to Nifong? I asked the folks at Forensic Talk to please give us a play-by-play of just what that letter means, but they didn't respond.
Perhaps they will if you ask them?
If the hearing goes forward it will give the opportunity for the defense team to question the accuser. All the coaching in the world isn't going to prepare her for the onslaught that I'm sure the defense has in store. I for one cannot wait to hear what comes out of her mouth, I feel confident it will really put this to rest. Of course as that 11th hour approaches Nifong could drop the charges on the courtroom steps to prevent the damage she will do to him.
Attend a weekly murder trial down
at the Durham courthouse and you
will find out a big problem with getting justice in the courtroom. Everybody is lying all day long- the witnesses, the defendants, the victims- the lawyers.
Get Crystal on any witness stand and she will clam up, mumble incoherently, and breakdown crying. Where there are juries, it is a tough job finding any testimony
that can be trusted- and hard physical evidence that hasn't been botched by the boobs in the police department.
This is why Durham's murderers love trials and walk the streets. Crystal and Nifong are right at home in this setting. The only
saving grace is the judge is not elected in Durham county.
10:03am Ob (Observer??):
Ob, you are correct - that would be Kirk Osborn's (Reade Seligmann's atty) MOTION FOR RECUSAL OF DISTRICT ATTORNEY filed on May 1, 2006.
The only disagreement i have with 9:49 is that, to my knowledge, Nifong has yet to file a written response. One reason he has been able to keep this charade going is that he can waltz into court and throw up some crap. Those of us who practice law no this type, alway showing up without filing papers with some bs delay tactic. When I judge requires that type of boob to put something in writing on time, it is the beginning of the end.
for example, why has Nifong been able to go all this time without explaining, in writing with case authority, why he can simply bypass all the line up rules by creating a legal fantasy "non-line-up". Are magical legal pixie fairies going to write up cases that say he can do this? Are these the same fairies that wiped away only the accused's dna, trillions of cells, but left trillions of other cells?
Yes, Smith should do things by the book but it was well within his power to demand written, properly supported respones to the pending motions.
To 9:54--I suspect the reason the defendants haven't filed a motion to dismiss is that in the real world (as opposed to Law and Order) dismissal is an extreme remedy, generally available only when there is no conceivable basis on which a case could proceed. As long as the lineup IDs are available, it would be hard to argue for dismissal; instead, the attorneys could move for a judgment at the end of the prosecutor's case for failure to present sufficient evidence. But if the lineup evidence is thrown out on Feb. 5, a motion to dismiss would probably follow in short order, assuming the DA doesn't drop the case. Caveat--though I have a law degree, I don't know North Carolina law, so this may not be completely accurate.
As for Matt Zash--I believe I read his family did anticipate his indictment because he lived in the house. But as KC's post makes clear, the AV didn't recognize him. One small quibble about the conclusion KC drew from her failure to recognize Zash--I seem to remember reading early on that Zash did not especially favor hiring the dancers and was watching tv in his room during the performance. If that's true, then her failure to recognize him doesn't say much one way or the other about her credibility. The rest of the conclusions KC draws in this post about the lineup and the AV's lack of credibility, however, are dead on.
Everyone, Foxnews just had someone from inside Lacrosse Magazine on and they stated that the law suits will be rolling soon they will include.
3. Durham Police
5. NC NAACP?
and anyone else who had anything to do with the railroading of Collin, David and Reade.
Now we do know that Nifong is not safe from a lawsuit. Even the lawyer that was talking said the samething I said last night.
Get a judgement on Crystal, and that will follow her for the rest of her life.
Hey VIM, have been mreaning to ask you - have you seen he blog abyss2hope? Marcella Chester there has apparently never seen an AV that wasn't credible.
Here's another issue people haven't talked about that much. Now that we know that Nifong worked to frame three innocent individuals for rape, doesn't this make you wonder how many of the people he has helped to convict might be in fact innocent?
I contacted Easley's office about this case and the stupidity of it. I received an email from one of his staff (whom he had asked to reply to me on his behalf... yeah, right) saying that, since the DA of Durham County is an elected official, the governor cannot do anything. Basically, I was told it is up to the voters. Maybe the voters need to look at other elected officials too?
As has been noted several times, NC courts have the power to dismiss a case in the face of massive constitutional violations, quite apart from the absence of evidence. Of course, the amount of evidence available will affect the nature of the violation, but there is a basis for immediate dismissal even if the stripper identifies one or more players.
The accuser has now given birth according to WRAL.
Nineteen days before, the accuser said that she was 100 percent certain she saw Krom at the party.
IMAGE 40 (Collin Finnerty)
Accuser: He is the guy who assaulted me.
Gottlieb: What did he do?
Accuser: He put his penis in my anus and my vagina.
Gottlieb: Was he the first or second one to do that?
Accuser: The second one.
Gottlieb: Is he the one that strangled you or not?
The above portion represents the facts that will put Nifong in serious jeopardy for civil and criminal events. He willfully chose to stand by the statement even though he never had anyone confirm her version. She says the accuser put his penis in her anus and vagina. Nifong has dropped the charge of rape because the AV can't recall what a penis is. Well it happened or it didn't. Since Nifong has now capitulated on this point and dropped rape charges, what is he accusing CF of doing? It isn't rape. there is no other allegation of sexual assault by CF.
The point is Nifong knows he has no case and continues same anyway. That is malicious and intentional harm to the rights of CF. The AV can not testify at the lineup motion or even during trial. She will be impeached by each and every prior statement. She can't even prove a crime occurred let alone ID the suspect. This is BEFORE the defense presents the alibi and other exculpable evidence. the Judge will be discussing jury charges which "False in one False in all" will surely be used. For Nifong to continue is intentional abuse of CF's rights.
KC, can you please stop posting so many updates?
They are very remarkable, but each one makes me more and more angry. This anger causes me to follow the case even closer, and I think I might get fired from my job soon.
Ah nevermind, keep writing them- I could always go work at McDonalds, and Nifong might even be my assistant manager soon.
Accuser: He put his penis in my anus and my vagina.
It will be interesting to hear how the accuser is going to make the case for now knowing that a penis was put in her anus but she no longer is sure whether or not one was put in her vagina.
Nifong is counting on the new mommy to break down and say she is no longer sure who violently assaulted her...
That way he can drop the case, say he was interested in justice all along and all the racists can maintain the lying stripper criminal was really raped only poor gal just can't ID the right guys.
It serves every agenda except justice and the truth.
Thus, the only thing the defendants can do is sue her and Durham to put an end to that type of nonsense once and for all.
I forgot one other point. This is the "second' person that put his penis in her anus and vagina. Well that is not what she is saying now. Regardless of what she says and does nifong is responsible. Same with Police and other witnesses. Nifong is responsible to know the case, know what is evidence, know any changes and know his responsibilities to the citizens of his County. he has chosen to do nothing.
Doesn't the State of NC have a state Bureau of Investigation, within the NC State Police. Why can't they step up to the plate and investigate Gottlieb and Himan. I believe this could happen, since the DPD's own internal affairs division doesn't appear to care if investigators violate their own General Orders. I know from experience that if officer violate their own general orders then they should be investigated, especially if they are violating someone's civil rights. Doesn't the state of NC have a civil rights division in the state Attorney General's office? Most states do. The state of NC has to have one of the worst judicial systems in the nation.
WRAL reporting CGM gave birth this morning via c-section.
CGM giving birth now is a very good thing in my opinion. It shows:
1. That Nifong can't keep her out of court on Feb 5 by saying she just gave birth, it will be 1 month later.
2. It shows she was perhaps due sooner than February and was sleeping around even more quickly than she claims following the night in question.
Is there no lie too obvious for Nifong?
Stupid question I guess.
I still can't get over the fact that so many lawyers in NC came to his defense early on, and the consensus was that he had been an honest, fair prosecutor. Was everyone lying to stay in with the old boys network? Did his character test come so late in life?
I watched the video of the ID's again. Is anyone else struck by the fact that she seems so unemotional, so motionless during the ID session? Maybe I've watched too much TV, but it seems to me that someone who was violently gang raped would show some evidence of trauma--emotion, body movement, etc...She was too composed, too detached.
"I hope you devote lots of space in your book to an attempted description and analysis of what makes Nifong tick. Just his academic redord alone indicates he is not dumb, but this whole thing is about as dumb as you can get."
Maybe the only reason Nifong has a good academic record is because he took multiple choice tests that had no wrong answers throughout college... just like the one he conducted in the lineup process.
He probably developed his liberal mindset from being taught by professors similar to the cowards in group haty hate. What a DisgrAce.
She was probably high.
Let's not forget the judge found something in her medical records compelling enough to give them to the defense, which is virtually unheard of in a rape case, and another bad precedent for real rape victim courtesy of Mike Nifong.
It seems obvious to me that she attempted to put a halt to the case by giving descriptions that didnt' match any players and by repeatedly failing to ID anyone in the first few go rounds.
I also suspect she was threatened by the Durham PD with a false rape charge if she did not ID anyone, that, in tandem with the photo array where she was guaranteed a bullseye no matter who she chose gave Nifong the result he wanted.
The fact that police would go along with such a charade is more evidence of why any law abiding citizen should stay away from Durham North Carolina.
Why does anyone think Nifong will drop the case if the ID is thrown out? He didn't drop it when the DNA turned up nothing...He didn't drop it when all the other exculpatory evidence came rolling in... He'll use his "we'll try this the old fashioned way" excuse to pursue this to trial and simply have the AV point out the defendants in court as her attackers.
Just wish Greta Van Sustran would not make such a big fuss ..she is creating a media feeding frenzy!!!!
It so detracts from the fact we still have 3 boys under the cloud of prosecution and we all know what NC is like for Justice ?
Greta and company pushing big time that the prostitute is a Victim....sickening?
Nifong is out of options. His misconduct has been exposed, it is questionable whether even a 100% black jury in Durham would find the boys guilty.
The only way he can save his job and his law license is to drop the case.
He is going to strong arm the false accuser into 'forgetting' exactly who anally, orally and maybe vaginally assaulted her and then drop the case. He will say he was only in it for justice all along.
That is why the defendants must continue to press the issue via civil suits.
Just as one example of how bad a trial would be: the false accusers father went on TV and said his daughter TOLD HIM she was assaulted by a broom, yet this was not in any documents we know of, so the defense will be able to ask both the accuser and her father in court if she did tell him she was assaulted by a broom. If he says, no, she never said that, then he's exposed as a liar and a fraud. If he says yes, she did say that, then she would be asked why she never mentioned a broom for X months or told this to the nurses and doctors and why it appears nowhere in the allegations....
There are so many instances to trip her up and show her for the liar she is that a trial would be pure suicide.
I'm glad Greta is calling for the ADA's to go public.
I would love to see an ex ADA break the silence and give us some insight into Nifong's reign of madness.
The truly pathetic thing is the guy is so incompetant he can't even run a proper cover up/railroad job on anybody outside of traffic court.
The "Prostitutes" family all come across as pathalogical liars.
None of them can lay in bed straight anyway!!
"...He'll use his "we'll try this the old fashioned way" excuse to pursue this to trial and simply have the AV point out the defendants in court as her attackers."
The defense Motion to exclude the Fauxto IDs includes a request to prevent the AV from ID'ing them in Court (if the IDs in April are suspect why should an ID a year later be valid?).
Nifong's just "cooling the mark"--letting this continue a bit longer so the voters who supported him won't see he conned them all along.
I think that is what he WAS doing...playing a waiting game until he could drop the charges before trial...but he miscalculated the difference between top of the line legal representation for innocent people and the typical public defenders for guilty clients he is used to.
He has been outlawyer at every turn. In most states he would never have been able to get away with ten months of not bothering to answer a single one of the defenses motions and having the 2nd? motion hearing occur almost a year later. Another example of why the NC bar and DA's are telling Nifong enough is enough. They don't want the old boys network exposed any more than it has already been: no transcripts at a grand jury hearing? Never heard of that...
He overplayed his hand this time, the only hole card he has is the desire of his profession to protect their own.
Why would anyone even dare go near North Carolina unless he had a relative there who was a DA?
FYI I don't think Easley has any power, other than the "bully pulpit" over Nifong, but for the record, both he and his wife Mary are former NC prosecutors.
At one time I worried that Nifong might be able to get away with his it really wasn't a photo array scam. That is clearly what they hoped to do when they set this up.
I doubt it now after he has been caught in so many laws. Remember there is no longer a Durham Co. rotating judge on the case.
"Why does anyone think Nifong will drop the case if the ID is thrown out? " 11:46
The case will be dropped because if the photo ID and subsequent in-court id's are suppressed, there is not a shred of evidence left. It is one thing to go forward on weak evidence, but it is impossible to go forward with no evidence.
1. Nifong ordered DPD to conduct the lineup without fillers so this tells us little about DPD.
2. Nifong's only goal was to get 3 indictments and win his primary. He had no goal beyond that.
I am not sure the judge is going to suppress the photo ID, judges are notoriously lenient with bad prosecution proecudures, he may say 'hey, she sounds minimally credible to me' we will let the defense present the line up facts to the jury.
Of course, if the judge quashed the case that would be Nifong's best out, then he can blame the cops and procedures, say he still believes in his case, but he CANNNOT go forward legally.
That prevents the false accuser from being shown up as a liar, gets him off the hook for trying his case and allows him to keep on saying he believes the false accuser and hasn't changed his mind since March 05 about the case.
It may not save him his job as DA, but it would be better in the long run than being annilated at trial. Of course, he may simply be too stupid to realize this, since he gives every indication of not only being a dishonest liar but a very, very bad lawyer.
WRAL reporting Crystal (aka Precious) gave birth yesterday!
Could a judge throw out the line up ID evidence but still allow an in-court ID?
"If the hearing goes forward it will give the opportunity for the defense team to question the accuser. All the coaching in the world isn't going to prepare her for the onslaught that I'm sure the defense has in store."
It is quite possible that the defense counsel will put the accuser through the gauntlet at the February 5 hearing, but to play the devil's advocate here, let me suggest this. It is also very possible that the defense counsel will limit to their examination to the bare minimum to support their motion to suppress. This is an important tactical decision for them to make. In the event that they do not prevail on the motion to suppress (unlikely in my view), they do not want to tip their hand and give the accuser a dry run practice for what is in store when they get before a jury. In most cases, defense counsel do not shoot all their ammunition in pre-trial hearings for this very reason. This is, however, a very unusual case so it is hard to predict how counsel will handle the situation. They are experienced and this is the type of call they are being paid to make. It seems to me very possible that we will not see a full fireworks show on February 5.
I would say there is a high liklihood that the accuser will give an entirely new set of stories on the stand, if she ever gets there, or if questioning goes beyond 'I don't know anymore if these are the guys that brutally raped, kidnapped and assaulted me'..there is so much amunition in the line up/ID procedures there isn't any need to go beyond that at this juncture.
"Could a judge throw out the line up ID evidence but still allow an in-court ID?"
The answer to this question is yes and in most cases this would be a likely outcome. To suppress an in-court id the judge must find that the unlawful photo id has so tainted the case that an in-court identification is unreliable as a matter of law. I think that defense counsel has made an exceptionally good argument for suppressing an in-court id in their motion and their case has become even stronger in light of the dropping of the rape charge. For those who have not read the defense motion, it would be well worth the time to take a look at it.
The problem with tearing her apart in front of a Durham jury is that they are likely to react "that smug mean white rich lawyer is picking on that poor black girl who's a new mom" and ignore the fact that she can't get her story straight.
How can an in-court id at this point NOT be overly-suggestive? In fact, how can it not be ridiculous given that the only college-age boys at the defense table will be the Defendants whose pictures have been published time and time again.
I'm not a criminal lawyer, but it seems nonsensical to even allow such a thing to happen in this case.
So, if the lineup is thrown out, how can the case survive?
I would like to point out that if the judge just throws out the ID process and an in court ID, it really doesn't let Nifong off the hook. He still believes a sexual assualt and kidnapping took place. So now he has to start over from scratch, and continue the investigation into the allegations. He is absolutely out of his mind.
above 1:05 pm post to answer your question, it can't survive. Judge Smith can toss out the case now or on Feb 5. hearing. If he does allow an in court ID then I would recommend that the defense be allowed to seat Collin, David and Reade somewhere in the courtroom and froce Crystal to look for them. If she even tried to say Sorry I don't see them in the courtroom, then have their lawyers call out their names and have them step forward. Case Over.
This would be the only fair thing I could think of to do, because your right thier faces are everywhere I can Id them and I have never spent one second in the same state as any of them.
How could the judge let things proceed in such a way? Without the id lineup, there doesn't seem to be probable cause to pursue these kids. How can a judge allow the probable cause to be established in a court proceeding which should not even be happening in the absence of probable cause ?!
That seems to be an utter manipulation of the legal system.
"So, if the lineup is thrown out, how can the case survive?"
Technically, the suppression of the photo id and suppression of an in-court id are two separate issues and it is possible for a judge to suppress the photo id without suppressing an in-court id. I think that you are correct in viewing this as an absurd result in this case, but it is a possible result.
In most cases where this type of issue arises, the original, but improper id was the result of some type of heat-of-the-moment mistake/incompetance by the police. Observers should be aware that it is unusual for evidence of deliberate and calculated misconduct to be on the table.
Where a good case otherwise exists and the police made a stupid mistake, throwing out the enire case is an extreme sanction that courts are reluctant to impose since it will usually result in a dismissal. Here, where there were earlier photo line-ups that did not result in an id and the only id is the unnecessarily suggestive one, I think the appropriate sanction to suppress everything.
If you suppress the photo id the case can't go to trial. You need something to go to trial. In other cases where the case goes to trial after suppression of the id, there is other evidence, medicla evidence or other witnesses or a confession, that justifies bringing the case to trial, at which time the issue of an in court id can be made.
Here, if you suppress the non-line-up line-up, the case can't go forward because the three defendants are unconnected to any criminal acitivity, no id, no medical evidence, no confession, no third party witnesses.
In the cases you discuss, which allowed in-court id, was there other evidence that arose to the level of probable cause to charge the defendent?
How can a case get to the point of an in court id when the basis of the arrests is gone? Shouldn't the proceeding stop right there rather than allowing the prosecution to "create" probable cause?
1:23 please remember we are dealing with the legal system of NC, there laws are not up to date like the rest of the country. Nifong and most of the judges back each other.
I have always thought that Nifong did something with the DNA samples that the Lax team gave.
I don't put it past anyone down there. Just look at the election for DA.
Just after Nifong won, Judge Stephen the first judge to handle this case and the one to sign the warrant for the Lax team DNA tossed his support behind Nifong.
this is NC...it appears anything can happen...so don't be surprised if the line up is booted and Nifong continues the case.
Still astounds me that NC allows no record of any kind on the grand jury hearings...sounds more like the KGB than anything in the US.
Hopefully a few NC Legislators get up the nerve to propose laws to correct some of the crap that went on in this case.
Durham should be ashamed!
After hiding from the public while he took the oath of office, Durham District Attorney Mike Nifong explained something: "The problem" isn't him. "The problem" is Durham.
Apparently it was Durham that, without examining all the evidence, announced to the world that three Duke lacrosse players were "hooligans" who probably raped a stripper.
Apparently it was Durham that, in violation of the law and Nifong's past practice, conspired with an expert witness to hide evidence that would have weakened the already flimsy case against the players.
Apparently it is Durham that, according to the State Bar, committed ethical violations and Durham that, according to Nifong's fellow district attorneys, should let someone else handle the lacrosse case.
"I don't feel that I'm part of the problem," Nifong said. "Durham has some healing to do. And I need to be part of that healing process, and I need to have something to do with how we move forward."
One of his former assistants and former campaign managers said the best way Nifong could help Durham heal is to step away from the lacrosse case. "How can anybody who comes through those doors up there, from a traffic ticket to a murder trial, trust that they're going to get a fair trial?" she asked.
It's a fair question, and not only in Durham.
When Gov. Mike Easley appointed him to fill the DA's vacancy in 2005, Nifong said he that hadn't sought the job in the past because he'd lacked perspective. But with age and experience, he said, he'd realized that, "It's not really about winning. This is really supposed to be about justice."
Unless, of course, there's an election coming up.
I'm not a lawyer, so this may be a stupid question. Why, given the apparent misinformation provided to the grand jury by Nifong and the DPD, can't one or more of the citizens that sat on the grand jury come forward to say what was said by the DA to get these indictments?
There are laws in NC to protect the rights of the accused. It's just that Nifong ignored them and his buddies on the bench are too afraid to challenge him (and the black community).
The fact that this case has gone on this long is good proof of this.
"Mr. Nifong suggested we put together the mug shot type photographs into a group since we are under the impression the players at the party were members of the Duke Lacrosse Team and instead of doing a line up or photographic array, we would merely ask the [accuser] to look at each picture and see if she recalled seeing the individual at the party. If in fact she could recall, just let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual."
Despite all logical and legal reasoning to the contrary, I suspect that Nifong will still attempt, in his own double-speak way, to continue with his charade that this was not intended to be an official line-up and that any spontaneous statements by the FA about any alleged assault cannot therefore be excluded. This is typical of his delusional sense of his own self-importance and exaggerated sense of his own legal abilities. Here are a few Nifong nuggets that I believe support my analysis:
1) On the double-speak -- his nonsensical comment about "ceremonial ceremonies" vs. "get back to work ceremonies". How do you expect even his high school-aged son next to him to follow that one?
2) How about the drivel about how he needs to be a part of the healing process because he simply uncovered the problem rather than being a part of it?
3) Early on, he made a statement about how the defense lawyers in the case were afraid to try a case against him.
One of KC's earlier posts is entitled Delusional. I think it's obvious why. I've said all along that Nifong reminded me of Captain Queeg in The Caine Mutiny. Right about now, he's got to be mumbling to himself about the strawberries (or in this case, the DNA, for starters) while juggling the ball bearings in his pocket. Follow the comments made all along about how his behavior is utterly illogical absent some instability. I don't see how anyone could routinely issue the statements he does, usually with an all-knowing smirk on his face, without having some sort of problem. It's just not possible for someone without a problem to be so out of touch with reality that they actually believe that listeners won't see him for the transparent liar that he is.
Can you imagine the travisty of justice had the DA tampered with the DNA? If the duke three we facing NC justice with tests that indicated their DNA was on CGM, their lives would likely be over...
C-section? I'm not surprised. What newborn would want to go down that well-plowed furrow?
You're all wasting time talking about the line-up and/or in-court id's. This case isn't going to make it to February 5, and Crystal Mangum is not going to be giving any testimony on the witness stand (not in the "criminal sexual assault and kidnapping" trial, that is; maybe in the civil and/or criminal prosecutions that follow).
In Durham grand jurists are now put to death immediately after they provide the appropriate indictment to Herr Nifong. That way the secret proceddings stay secret.
A Durham theme song:
We’re a city all despise
We always compromise
Our principles when needed.
We try to keep it real
We’ve got a Third World feel
Where due process goes unheeded.
(from Right Angles)
I think what does away with in court IDs is that Mangum participated in something like 3 to 6 photo arrays. That is a real problem for allowing in court IDs.
The lack of probable cause before trial is an interesting issue.
Now if by chance the judge throws out the pre trial ID but allows in court ID, could the defense invite all 44 members of the lacrosse team to sit at the defense table during her direct and have them change their seats after each recess and see if she could pick the same three again?
For those of you who are interested, here is a link to a good academic analysis of the law regarding the suppression of eye witness identifications. http://www.pdsdc.org/Cpi/CH_21.pdf
I got a response from the Edwards campaign. It was an email asking me
to organize a local group.
Nothing about the case of course.
Senator Gregg has written me personally in the past so I'm curious as to what he will say on the matter. I've heard that other Senators just state that it's not their job.
1:42p.m. yes I can imagine what could have happened if the DNA of Collin, David and Reade were found on Crystal and that is what scares me to death. Knowing that there is a DA like Nifong and a Police Department that hates an entire college, is unreal.
To 1:49 JLS
I can't conceive of a situation where the lawyers or parents of the other LaCrosse players would allow them to be part of an in court id under the circumstances. God knows what would happen to a player she id's if he were different from the defendents.
I thought by in court id, it was meant that she would point to the defendants as they sat at the defense table--the typical id that is done in trials AFTER probable cause has already been achieved.
But, if the in court id were to happen as JLS portrays, then I think that the line up participants should be white members of the DPD--perhaps their rookie class. That would be interesting indeed.
Just don't think Nofing will risk putting CGM on the stand. Look for a written announcement that because of all the publicity and pressure, the new mom has decided not to testify and to drop everything, followed by another no-press sign on the door.
Provides about as much cover as this slimeball, who has caused so much damage to so many, can get at this point. Really, he was taken big enough chunks out of enough people's lives that his cost to society far exceeds the damage done in a typical murder case.
Speaking of which, if CGM goes missing beteen the end of this "case" and the start of proceedings against Mr. Nifong, he's going to be the first person anyone thinks of in terms of motive and opportunity.
Anyone doubt that he's in the process of transferring all assets to the wife or investing in a FL property for his retirement?
New mommy/sex worker/college student just wants to be alone, please respect her privacy...
Nifong will blame the defense, say he really wanted to take the case to trial, continue to be a big hero to stupid blacks, and the NC legal community will write him a letter telling him not to hide exculpatory evidence anymore, wrist slap.
I do think though that he is going to be a pariah among most circles in Durham that he previously was traveling in.
A judge in Durham would be very reluctant to throw out the case because it would open him up to retaliation from the district attorney's office.
For example, the D.A. could simply refuse to schedule felony cases before that judge, relegating him to hearing only misdemeanor cases for the rest of his career.
In this case, the more I study it, the less I see any positive resolution possible. The governor is supporting Nifong; powerful political forces are still arrayed against the boys; the network of prosecutors, judges, and police still supports Nifong; the Department of Justice has evinced no interest.
True, some prosecutors called for Nifong to resign, but that's just words, it means nothing. The judges and police all collaborated with Nifong to, for example, refuse press access to the signing in.
I am not criticizing these folks. They are corrupt, true, but they have families and jobs they need to protect. I am just saying that as a practical matter, without gubernatorial or federal intervention, a bunch of angry letters just won't affect corruption that is entrenched to the degree it is in Durham. Since the feds and governor have basically said they aren't interested, there will be no justice for the Duke 3.
I know that those of you who are not lawyers tend to hold an idealized view of the law as place where justice wins out in the end and wrongs are righted, but that just isn't how the criminal justice system works.
I think you are over estimating the protection he's getting.
The one two punch from the bar and the DA's was a very clear message to Nifong that if he doesn't take care of business--get off the case--his career is over.
The false accuser's 11th hour forgetfulness about the penises that she knew at one time were inside her and his statements that he's continuing on with the case unless she recants her IDs was the last straw.
Nifong will be obliterated in the courtroom and everyone knows this.
He has to find a way to get the case dropped or his career is finished.
Feminist blog(www.amptoons.com)posed the question to several experts:
"If DNA evidence fails to prove that an accused person raped an alleged rape victim, does that prove that the accused person could not have raped the alleged victim?"
One of her posted responses was from "Jennifer Friedman,J.D., Deputy Public Defender and Forensic Science Coordinator with the Los Angeles Public Defender’s Office, who has litigated several high-profile cases where DNA testing played a pivotal role and is also the founder and former head of the Los Angeles County Innocence Project." Jennifer Friedman was quoted as saying
“If someone is excluded, he is definitively excluded.”
When does Nifong become eligible for a full pension? How many sick and vacation days is a state employee allowed to carry from one year to the next?
Could it be that he is trying to string this out as long as he can to retire with a full pension and not care about being disbarred?
The fair answer is no, absence of DNA doesn't mean a man is not guilty of rape, just like presence of DNA doesn't automatically mean he's guilty.
There are plenty of examples where a man is guilty of rape and there is no DNA evidence...the rape wasn't reported for a few days or weeks, he wore a condom, he didn't ejaculate.
In this case, though, the chances of a man ejaculating in the victim's mouth and her being given a rape exam within 5 or 6 hours, and her stating she didn't brush her teeth, etc. is virtually nil.
The proximity of the alleged attack to the rape exam, plus the woman's statements that no condoms were used that at least one man ejaculated is what make her claims obviously false.
So far the facts bear out that anon 2:23 is pretty much on the mark. If he were not, this case would be over with long ago. NC is simply a legal cesspool where the likes of Nifong can get away with criminal activity. Unfortunately, I beleive these boys may still end up not as criminals but as political prisoners.
Here's the sad thing. As a country, througout our history, we have sacrificed many young lives (war) to end this same kind of behavior in other countries...and here it is right in our back yard.
I am thankful, however that the NC legal system is not duplicated in other states and jurisidctions (recently our DA got sent away for 4 years for less than what Nifong is doing).
So even though they had Crystal identify everyone at the party & who supposedly assaulted her, they never had Kim Roberts do it? Is it because they believed Kim when she said Crystal's story was a crock?
"A judge in Durham would be very reluctant to throw out the case because it would open him up to retaliation from the district attorney's office."
A judge who is not willing to make calls against a DA is has no business calling himself a judge. Moreover, such bias in favor of the DA would become glaringly apparent quite quickly and result in an uproar from the defense bar and over time from appellate courts. DA's have alot more to be concerned about in getting on the bad side of a judge than a judge has to be concerned about getting on the bad side of a DA. I've seen lots of prosecutors "kiss up" to judges, but never the other way around.
"For example, the D.A. could simply refuse to schedule felony cases before that judge, relegating him to hearing only misdemeanor cases for the rest of his career."
DA cannot refuse to schedule felony cases before a judge. Such power would violate basic principles of Constitutional law.
The police and DA made a concerted effort not to 'know' anything that would cast doubt on the false accuser.
That's why they never followed up with Kim, why they harrassed the poor cab driver, refused to view/hear the alibi information, refused to allow the defendants to take lie detector tests, failed to interview the false accuser, failed to read full reports about her non injuries and her trips to the ER trying to get meds, her mental history, her previous 3 man gang rape and beating allegation, her having resumed stripping days or at most a couple of weeks after her violent attack and all the rest of it.
the current judge is not a durham judge. Nifong is irrelevant to him. Plus, from a selfish standpoint, if he kicks the case it coudl be his springboard to bigger and better things, a federal judgeship, court of appeals. If he goes along with Lifing, he will be as despised as that fool
2:23 I totally disagree with you. I think this case has grown so big, so high profile and Nifong's practices so egregious that in the end the powers that be will have to do more than give him a slap on the wrist. You are being impatient here.
The Feds haven't stepped in because, they haven't needed to yet. Congressman Jones just asked them several weeks ago. Do you think they are going to drop everything else just for this? No. More importantly, there are a number of issues before the judge that the feds and many others aren't going to deal with until the judge rules.
Look at the charge by the Bar. That is unprecedented. If they were going to slap him on the wrist, they wouldn't have done that. I believe they announced that as a result of the Dec 15 hearing and revelations of the exculpatory evidence. I think the Bar charge is a shot across the bow to Nifong to step down. If he doesn't then they can get more serious.
They still have the option to pursue other charges such as the lineup and the exculpatory evidence problems.
But they won't until the judge rules on them. However, the bar charges do give the judge the cover to rule harshly against Nifong. He can throw the book at Nifong knowing that he won't be all alone doing it. Once the judge throws the book at Nifong, the Bar and a lot of other people will too.
Nifong's only hope for a way out now is to put the blame on the AV. If she backs out or discredits herself on the stand, he can drop the charges and get some respite.
I do have a question for some of the legal eagles here. If the judge tosses that lineup doesn't that automatically toss the case? The lineup was the key to getting the indictment. If the lineup is tossed doesn't that toss the indictments?
"Despite all logical and legal reasoning to the contrary, I suspect that Nifong will still attempt, in his own double-speak way, to continue with his charade that this was not intended to be an official line-up and that any spontaneous statements by the FA about any alleged assault cannot therefore be excluded."
The legal principles involved in the motion to suppress the photo id are not limited to formal line-ups. They involves any type of eye witness identifications that are unduly suggestive. Accordingly, it is a red-herring to discuss whether the photo id session was a line-up. It does not matter if the procedures were so suggestive as to make the identification unreliable. The same legal principles would be involved if a defendant were arrested and handcuffed and the eye witness id's him as he was walked through the police station on the way to lock up.
This BS about the gov. and others having no authority is just what I said, BS!
Remember when the bounty hunters were getting crazy in the 90's? First thing they had lawyers say is "there are no laws regulating these bounty hunters/bail agents". Quite a few got away with all kinds of crimes because of the legal spin.
Then some bail agents went to the wrong house and killed a few people. They went to prison and things have significantly tightened up. Prosecutors and legislatures realized they had been put on. You can't break the law and then claim the law doesn't apply to you because your name is not written ON THE LAW. Every person has to obey all civil, criminal, etc laws. Nifong also has to obey all ethical rules, EEOC, Civil rights, etc.. he swore an oath to this yesterday. Things will heat up soon when the civil cases are filed. That is why Duke profs(newest post) are now coming out.
This is an insignificant point for those not close to the game but an important one to whose who are: LaCrosse is a town in Wisconsin and a brand of work boots. The game is lacrosse. FYI
"This is an insignificant point for those not close to the game but an important one to whose who are: LaCrosse is a town in Wisconsin and a brand of work boots. The game is lacrosse. FYI"
I thought that looked wrong after I typed it. I just didn't take the time to figure out why.
NY Times tonight (from AP wire)
Here is the article:
RALEIGH, N.C. (AP) -- A former Duke University lacrosse player sued the university Thursday alleging that one of his professors unfairly gave him a failing grade because he was a member of the team.
Kyle Dowd graduated in May 2006, two months after a woman said she was raped by three of his teammates at a lacrosse party. The allegations set off a tumultuous few weeks in Durham, with almost daily protests by people who criticized lacrosse team members for a pattern of rowdy behavior.
Dowd, who was not charged in the case, claims in his lawsuit that visiting professor Kim Curtis gave him an F in a politics and literature class that nearly prevented him from graduating, even though he had earned C's on his assignments to that point.
''Defendant Curtis engaged in extreme outrageous and unethical conduct ... due to personal bias and prejudice,'' the lawsuit says.
The university later changed Dowd's grade to a D, citing a calculation error.
He and his parents ask in the lawsuit for the grade to be changed to a ''P'' for passing.
Dowd and his parents, Patricia and Benjamin Dowd, are asking for a total of $60,000 in punitive and compensatory damages. The lawsuit was filed in Durham Superior Court.
University officials declined to comment, saying they had not yet seen the suit.
Seriously, is there any precedent for requiring an in-court ID to be conducted as Victim in Massachusetts suggested at 1:17 (defendants seated in court gallery among similar-type people, witness has to pick them out rather than just pointing to the person sitting at the defendant's table)? I'm sure that the defense has thought about it but I would appreciate finding out if they would be allowed to do so.
As a Duke alum, I have followed this case and your razor sharp analyses since the inception. Thank god there are still people like you in our society who can see through the fog of political correctness and the myriad personal biases to expose the core issues. Your persistence and tenacity in the pursuit of truth are making a difference.
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