Duke Rape Case Hearing

I confess that I don’t know much about how the legal system functions; however, I do have a serious question:

Is the prosecutor, by law, required to do everything in his power to seek out the truth rather than just to try to win the case?

It seems that the prosecutor, at least in this case, is fully vested in just winning and has refused to consider any exculpatory evidence.

A sidenote:

Apparently, the accuser has just brought on a high profile civil attorney that has won million for clients in the past.

Gee, anyone see that one comin – this case is nothing more than legalized blackmail.

Is there a gag order in place?

“Justice will be served, rapist!”

Uh oh. I bet the Korean Merchants Association’s insurance rates just tripled.

If someone really yelled out “you’re a dead man walking”, should not that person have been arrested for harassment and threats? I don’t understand this so called justice at all. Why are these people allowed to threaten this kid? Where is Joe Cheshire? Reid needs Joe.

A report I just read said Defense showed up prepared to do battle over discovery. Nifong did a document dump and claimed in court to have produced all items which may be of an exculpatory nature to the Defense. Another report said its his entire file, which I doubt. But 1200 pages is a good start. Now where is the tox report? If he did not produce it expect the Judge to be told about with an a request for an order to compel its production. The Judge seems to say he was not going to get into issuing orders on stuff that is normally done voluntarily. That was a message to both counsel. Play nice and share your toys.

Answer on the gag order is no one asked for one. Nifong knew if he brought it up the Defense would beat him up in front of the Judge about all the stuff he has said. Defense would say they have an ethical duty and repsonsibility to their client to respond and that is what they have done.

How important is DNA Evidence?

Mid-Atlantic Innocence Project: American University 145 cases involved DNA evidence and 80% of rape exonerations were due to DNA. This is class warfare case and I hate that is has divided the Durham Community. African Americans are just looking for vengeance and not justice. The very fact that Civil Rights Leader Dr Martin Luther King, Jr has given his life for equality and justice is now being abused by radical African Americans groups who don’t represent African Americans, but only their own agenda. They are blinded by anger and most of them don’t even know about our history (Black History). I believe the DA has used this case only to promote his own political agenda and didn’t allow this case to fully show itself. He looked like an idiot when he thought that the DNA will point out the true suspects, but no DNA was found. I have been a Law Enforcement Officer for 10 years and when the Police Officer arrived to the scene and makes his observation, he will note the initial behavior of the victim and should have recored any statements from her, even if she had just blurted out anything that didn’t make sense. I wonder how many African Americans would feel if the tables were reversed and it was a white stripper and 3 black football player who were charged and no DNA Evidence were found. ALL of our so-called Black Leaders would have came to their defense and I really believe Durham would be in an uproar. I hope in this investigation the Police should have taken photos of her boyfriend to make sure he didn’t have any injuries consistent of the struggle she claimed she had against the rapist.

I echo the comments of (Belle – #12); Fox news reported someone yelled (what amounts to a death threat) at the defendant, quote “you a dead man walkin’”. Charges should have been made immediately. What’s the defense attorney thinking?

La Shawn, I agree with you regarding the nasty names, but I think “you a dead man walking” is a death threat. Anyone of us, I think, might be charged with something if we had called that out to a defendant going into the court house. But as seems to be the rule with this case, no one in the system seems to be concerned with these kids getting a fair shake.

Technically speaking “Dead Man Walking” is a slang term used by prison guards when escorting death row prisoners from their cells to the execution chambers. I imagine one could make a plausible argument that the use of the term in this instance is “free speech” about the culpability of the defendants with regards to a crime not a death threat. The defendant are not in the custody of the persons making the chant.

Oh, btw, Bill and LaShawn: Let’s not nit pic at Kirk Osborn’s “performance” and come to conclusions about his skills as a trial attorney at this stage. I didn’t see any of the hearing, but I wouldn’t expect any attorney to put on his “My time to shine…” personna at a discovery hearing.
(At least I wouldn’t….)

Osborn’s got an AV rating from his peers in Martindale-Hubbel; he’s passed his “boards” as a specialist in Criminal Law here in NC; and, of note, he was successful as the appellant’s attorney in State v. Wilson, a 1995 NC App opinion involving one of the “Little Rascals Day Care” defendants. Reason for the appellate victory? The assignment of error cited “prosecutorial misconduct at trial” during closing argument, and the Ct of Apps agreed, reversing Ms. Wilson’s conviction.

A lawyer with a brief bank on prosecutorial misconduct, eh? Probably not a bad choice to have on the defense team here ….

I agree with Tater; the defense is not showing their hand, and likely watching silently for a reason. I look forward to the cell phone records and the tox report.

Belle where did you find out about the “stripper catatonia” that she has when she is arrested. That is quite a find.

The policeman wrote in his report that she passed out

Belle the tox report on this earlier 4 felonies showed a blood alcohol level of 1.9. Yikes! the girl do like her long tall cool ones.

1.0 even .8 is legally impaired in a lot of places. Above 2.0 they start thinking about pumping your stomach for fear of alcohol poisoning. She was wasted.

Remember this the next time that someone starts going on about daterape drugs. No evidence exists anywhere at this time about date rape drugs. She more likely in myt opinion has some soda pops before she got there. May have even mixed in a few downers for a real slow down.

The second stripper did not volunteer to the police that she had been at a “service call” to dance with the false accuser. She told the police that she was just a good Samaritan who picked up this girl as she was being harassed by some frat boys. Is it possible that she did not want the police to know that she had been with the false accuser in case the false accuser claimed that the second stripper took her missing money? Maybe Stripper 2 was angry and felt that the boys and/or the false accuser were ripping her off. I read that there was an argument over money and that she was angry as she left the house. Maybe she told the boys that she was going to call the police on them. I bet that is why one of the boys was overheard to say, “she’s going to call the police” . Plus, she would have to tell her employer that she only received a small part of her payment, instead of the whole 400 bucks – remember now that she was already on probation for stealing 25K from a former employer. Rather than do that, is it possible that she took the money from the false accuser. I bet she had a fit when the whole thing spun out of control! She probably had to spin really fast and was afraid of repercussions regarding the probation.

Civil attorney link.
http://www.foxnews.com/story/0,2933,195753,00.html

“You know the more I think about this the more the idea that the other Hooker stole Crystal’s money makes sense. ”

- problem: purse, money and cell phone were left at house, which police found later

“The second stripper did not volunteer to the police that she had been at a “service call” to dance with the false accuser. She told the police that she was just a good Samaritan who picked up this girl as she was being harassed by some frat boys. Is it possible that she did not want the police to know that she had been with the false accuser in case the false accuser claimed that the second stripper took her missing money?”

problem: she remainded when dropping off accuser, also even the boys used false names to avoid being associated with strippers – even strippers don’t want to be associated with strippers, but telling the police is worse

Thanks, Belle. I hadn’t seen that story from 2 days ago. Willie Gary, eh? Ol’ “Wings of Justice” himself — I’ve heard that’s painted on the side of his private jet, the one he flies out of Miami to other states when he appears pro hac vice…

We do have plenty of defense litigators here in NC who have been up against him and members of his firm. In fact, a few years ago defense lawyers were successful in getting a superior court judge in a med mal case to revoke the pro hac vice admissions of two of his associates, and the Ct of Apps upheld the trial court. Grounds? The Gary Firm was making too many appearances up here and was seen to be abusing the privelege of pro hac vice admission to practice in NC without its lawyers being admitted to our bar.

Willie Gary may be checking out the scene in Durham at this point in time just to be part of the action … “high profilin’” may be the current motive. If the criminal case is tried to a verdict of “not guilty” and there’s a sense that the prosecution was beaten badly, Mr. Gary may conclude it’s not worth his investment of time and expenses to pursue a weak civil case.
If the boys’ families threaten to mount a defense instead of paying a “shakedown settlement to avoid the costs of defense,” maybe even Mr. Gary
wouldn’t try to play a bad hand.

Consider this, too — while the families of the three young men may be perceived as “wealthy”, are their sons enjoying big bank accounts yet in their own names? Heck, I know I was judgment proof coming out of college 30 years ago … well, I guess someone could have executed on my Chevy Vega.

It’d be unlikely to have insurance money available to pay off a verdict in civil court, too, as intentional torts (assault and battery, rape, murder, stuff like that…) aren’t covered.
Go after the rich parents? What grounds? Foreseeable they’d raised rapists? Just ’cause they knew or should have known those underage drinking citations were red flags?

Oh well. Enough speculating. It’s late.

Tatercon,

You came to the defense of the defense lawyer. All the facts and figures aside, he comes across as weak and intimidated.

Ockham’s Razor Theory states that in a complex environment with many variables, the simplest (most obvious) solution is usually correct.

He seemed wimpy to me, therefore I believe he is wimpy. Low energy – intimidated. Hey I could be wrong and he could be Clarence Darrow, but I don’t think so.

Tater, I think that the civil case will be against Duke. Duke has all but laid it out very nicely for the F.A. to secure her financial future. They seem to have admitted that the climate at Duke and that of the lacrosse team in particular was a major factor in the alleged rape. Duke has admitted that the team home had problems with the neighbors. Duke “released” the coach, which can be interpreted as an assignment of blame. Duke had a commission of sorts which pointed out all the ways Duke mishandled the case. There have been accusations that racism and town/gown relations contributed to the environment that allowed the supposed attack to occur. Duke has really not come out to defend the school or it’s Lacrosse players, at all. I believe that they have bowed to the PC environment of most major universities and I think it will come back to bite them big time. The player’s families may have some money, but I bet that combined, they don’t have a fraction of what lies in the Big Fat Duke Coffers, just waiting to be fished like a trout from trout farm pond by some flashy attorney. After all, going after Duke will be easy money and a lot of it. I think Duke messed up big time with this one and I bet that the Alumni are going to be pretty steamed.

“Duke has admitted that the team home had problems with the neighbors. Duke “released” the coach, which can be interpreted as an assignment of blame. Duke had a commission of sorts which pointed out all the ways Duke mishandled the case.”

The commission’s findings and other subsequent remedial measures probably can’t come in as evidence. Just an fyi.

Don’t think so, assuming that NC has a parallel rule to Federal Rule of Evidence 407:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, *evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.* This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

“it’s a national travesty that three men were indicted for a non-existent rape fueled by already tense racial and class envy” (#2).
Are there voices in the Durham black community that believe the three men?

Bill Mitchell: “Here is the one BIG question – why can’t the Republicans in Durham County find even ONE person to run againts Nifong in the general election?”

I have heard that Durham is basically a one party town with many people with republican beliefs registered as democrats. Raliegh is different.

“Ockham’s Razor Theory states that in a complex environment with many variables, the simplest (most obvious) solution is usually correct.”

I don’t know what happened, but I do know that the simplest theory is not a poorly-planned conspiracy among forty plus students or even a poorly planned false accusation conspiracy (she works as an escort and could not even obtain any DNA on her and let’s have our false accuser be drunk when making the accusations).

The simplest theory is that the accuser was found drunk and bruised by the police, and she did not want to implicated her “boyfriend,” herself in the escort business, or any of her own illegal drug activities and lied to the police. Making false statements such as, “I didn’t do anything,” happens in most arrests. In her case, the false statement was mostly likely, “My “boyfriend” does not hurt me, it was those white boys who took advantage of me.”

“Duke’s response was appropriate; the procedures followed in securing the arrest and indictments were appropriate; taking a year before trial in a case with so many witnesses and so much evidence is appropriate;”

The sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,….

Sorry but in America, one year is not speedy.

In America, the only legal response is: “You want a speedy trial; you get a speedy trial.”

“Oh, the other legal response to a request for a speedy trial is, “Sorry, we are busy and can’t give you a speedy trial. Case dismissed.””

Any legal basis for that? That’s preposterous on its face, to dismiss a case and not hear the merits of the victim’s case…because it isn’t moving fast enough.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,….

Sorry but in America, one year is not speedy. ”

How long do rape trials with multiple defendants usually take? I assume you have some factual basis for the statement other than “it doesn’t feel speedy to me, and Thomas Sowell said it wasn’t speedy enough for him, so it isn’t speedy enough for me.” Let’s see come comparable cases.

The defense made a massive request for evidence in their first motions. If they get even half of that, there’s a ton of evidence out there that must be reviewed. That takes a *lot* of time.

Preparing witnesses/conducting depositions takes a lot of time as well.

It will take time to find the truth here–your impatience doesn’t rise to the level of a constitutional violation.

tvd,
Many states have a 6 months to trial rule. There is NO reason this trial could not proceed. In Mecklenburg co. the largest county in the state, we do not take a year to try a rape case. This is politics pure and simple, after nov election nifungo will find a way to quietly let this die.

As to Duke responding correctly, you must be smoking dope or you are brain dead. Knicking the entire team off campus during exams, because the black panthers are coming to town is not what I call acting correctly. I know what I speak about, I was in the dorm when the boys in my son’s frat were told to leave. Duke has acted shamefully and those of us who can make a difference will, when the time is right. Broadhead, Duke’s president, is the real “deadman walking” he just doesn’t know it yet. Kemp

tvd:

You are completely mistaken. Cases have been and continue to be dismissed on grounds of denial of a defendant’s right to a speedy trial, that right would be meaningless otherwise. Delay in order to allow time to prepare a complicated case is ALWAYS the prerogative of the defense. If the defense is ready to proceed, the prosecution is generally afforded little flexibility other than to comply. The prosecution should therefore NOT bring charges unless ready to proceed immediately to trial. The prosecution, for its part, enjoys neither any right to procedural delay nor any right to bring speedy indictment. If Nifong isn’t ready to go to trial, he should NOT have sought indictments until AFTER his investigation was complete, but prosecutorial preparedness wasn’t the point, now was it? Nifong needed his Great White Defendants and a bill of indictment in time for the 2 May primary — and he GOT them.

Why are defendants guaranteed the right to a speedy trial in the first place? It is because the circumstance of being under indictment unavoidably imposes costs on the accused, and the continued burden of such costs would effectively work punishment absent attainder. How much does it cost to float a $400,000.00 bail bond? How much will it cost to keep the defense legal teams in readiness? The accused can neither return to school, nor proceed to professional careers. There are restrictions imposed on their movements and other activities (e.g. to facilitate their sureties). Their lives are effectively on hold. What opportunity costs are they thus absorbing? All these costs and more will be mounting over the next year plus while Nifong sits on his fat, stupid a$$, trying to figure out how to remove it from the sling into which he put it in the first place. It’s OUTRAGEOUS.

Now, what is REALLY at work in the Duke case? North Carolina, unlike the vast majority of States, reportedly does NOT have a speedy trial statute, i.e. one imposing statutorily defined standards of timeliness in criminal proceedings. I’ve read some reports, in fact, indicating that there once HAD been such a statute, but that it had recently been repealed. If true, this would be amazing in and of itself. At any rate, according to various reports, prosecutors in North Carolina generally control the crimial docket within very broad limits, so the delay we’re seeing in the Duke case is certainly of Nifong’s manufacture.

Why is Nifong stalling? The short answer is because he HAS to. All substantive discovery was supposedly completed by yesterday’s proceeding. Only a few peripheral items remain, such as the Accuser’s cell phone records, etc. This means that the defense is now in possession of more or less the prosecution’s entire case. My sense of the matter is that the prosecution has NO evidence beyond that which has already been revealed publicly, with the exception of the “rape kit” examination detail, which is certainly not dispositive considering that the accuser is a prostitute. This in combination with the defects in victim identification procedures, makes it almost certain that there is ZERO admissible evidence of any crime committed by the accused. If the case were to go to trial tomorrow, motions to dismiss would be filed on the grounds of insufficient evidence, and they would be granted. Nifong would be quickly exposed as the corrupt, race-bating fool that he is.

What does delay buy Nifong? It buys him a great deal, quite frankly. Given a long enough delay, there’s a possibility that almost anything could happen to reverse his sagging fortunes. Against all odds, the police could complete a “Hail Mary,” uncovering new, damaging evidence. Nifong would have more opportunity to intimidate other lacrosse players into testifying against the accused. One of the accused’s family could suffer financial reverses and no longer be able to sustain the crushing bond and costs of the legal defense, opening him up to prosecutorial extortion to turn “State’s evidence.” The accused, for that matter, could die, in which case no trial at all would be forthcoming. Consider; it is not inconceivable that the accused might be murdered by members of the New Black Panther Party. Having NO trial, in fact, might well be Nifong’s most attractive outcome.

Turning our attention to the accuser, there are LOTS of possibilities here. She could withdraw the complaint. She could flee the jurisdiction or refuse to testify. There being no accounting for the actions of hopped-up whores, she could also meet her end via any number of circumstances. She could commit suicide. She could OD or die of alcohol poisoning. She could be killed by a john, a “boyfriend,” or her pimp. She could die in an automobile accident. The possibilities are almost endless for her, but the outcome would be the same for Nifong — he would be spared any trial and the resulting ignominy. I say bring this case to trial NOW and give unto Nifong every last measure of his due.

“I assume you have some factual basis for the statement other than “it doesn’t feel speedy to me, and Thomas Sowell said it wasn’t speedy enough for him, so it isn’t speedy enough for me.” Let’s see come comparable cases.”

For every “comparable” federal case:

Title I of the Speedy Trial Act of 1974, 88 Stat. 2080, as amended August 2, 1979, 93 Stat. 328, is set forth in 18 U.S.C. §§ 3161-3174. The Act establishes time limits for completing the various stages of a federal criminal prosecution. The information or indictment must be filed within 30 days from the date of arrest or service of the summons. 18 U.S.C. § 3161(b). Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1).

——-
I don’t know every state’s time limits. Are few are 6 months, but can’t override the Constitution, and I don’t know if the 6 months has been legally tested.

“Any legal basis for that? That’s preposterous on its face, to dismiss a case and not hear the merits of the victim’s case…because it isn’t moving fast enough. ”

Sorry, but it’s a not uncommon defense ploy – but it usually needs the help of 1) the government doing nothing for months (becasue of a weak case or hoping for a plea bargin) and 2) a complex case that the government can’t try in a week.

UNK: There are still some elements within the Constitution’s Bill of Rights that are restrictions upon only the federal government’s powers, and are not necessarily applicable to the States, unless grafted (I’m sure there’s a better word) upon the states through the US Supreme Court interpretation of the Due Process clause of the 14th Amendment.

“Speedy Trial” act in NC was repealed in 1989. I’m no constitutional scholar, but I suspect “Speedy Trial”, unlike “right to counsel”, “Miranda rights”, etc. hasn’t become grafted upon the states through the Due Process clause.

Remember, most of the articles of the Bill of Rights begin with “Congress shall make no law…”, but unless the Supremes have said a state law violates the Due Process Clause of the 14th Amendment, states can still have powers to adopt what’s best in their criminal procedures acts.

But what do I know — I’m a civil atty and I’m just blabbering about what I remember from Con Law I in 1977….

“You are completely mistaken. Cases have been and continue to be dismissed on grounds of denial of a defendant’s right to a speedy trial, that right would be meaningless otherwise.”

Of course it’s happened–I wasn’t trying to read out the Sixth Amendment. The more relevant question: has it happened in comparable cases?

“Delay in order to allow time to prepare a complicated case is ALWAYS the prerogative of the defense.”

Yes, they appear to have taken it. Poisoning the jury pool by selectively releasing favorable evidence will probably delay things further.

“It is because the circumstance of being under indictment unavoidably imposes costs on the accused, and the continued burden of such costs would effectively work punishment absent attainder. How much does it cost to float a $400,000.00 bail bond? How much will it cost to keep the defense legal teams in readiness? The accused can neither return to school, nor proceed to professional careers. There are restrictions imposed on their movements and other activities (e.g. to facilitate their sureties). Their lives are effectively on hold. What opportunity costs are they thus absorbing? All these costs and more will be mounting over the next year plus while Nifong sits on his fat, stupid a$$, trying to figure out how to remove it from the sling into which he put it in the first place. It’s OUTRAGEOUS.”

Yes, it’s hard out there for accused criminals. I’m glad you’re sympathetic. Perhaps they should refrain from conduct indictable as sexual assault.

“so the delay we’re seeing in the Duke case is certainly of Nifong’s manufacture.”

Based on a statute that you *think* might have been recently repealed? Yeah, the defense has no incentive to keep the meter running, right?

“…Consider; it is not inconceivable that the accused might be murdered by members of the New Black Panther Party. Having NO trial, in fact, might well be Nifong’s most attractive outcome.”

I’m excerpting, because the last two paragraphs here are wild, unfounded speculation. A conviction is entirely possible. None of the evidence presented by the defense has been subject to any scrutiny/impeachment at all. There’s a big pile of evidence that hasn’t been seen.

Pretty much everyone posting in support of the accused assumes their innocence. But there’s a difference between being presumed innocent and proven innocent.

As a final point on the delay/inconvenience and the Splendid Trial, what sort of system would you suggest? One where defendants can walk away from a charge based on their own say-so? That’s all that this unscrutinized evidence adds up to, you know.

“Most complex rape or murder trials may take a year or longer ONLY WHEN the defendants waive the right to a speedy trial. For example, as with the O.J. case, the defense often wants time more time to prepare their case.”

I assume that probably has to be an explicit waiver, right? No waiver by conduct/estoppel stuff?

Still, it makes sense to delay a complex and/or inflammatory case like this one, particularly when the defendants are walking around free. Opportunity costs aren’t a compelling reason to push a trial up too quickly–I mean, if that were the case, they’d have tried the WorldCom CEO about two days after his arrest.

tvd:

You are a complete legal ignoramus. Everything you have said is completely WRONG. First, the accused are required to prove NOTHING. That’s what the presumption of innocence is all about. It is the exclusive burden of the prosecution to prove an assertion of guilt. If the prosecution fails, the accused are by definition “Not Guilty.” Second, irregardless of your “expert” opinion as to how much time the defense should take to examine the evidence, it is their place alone to make that determination. If, in the defense’s judgment, they are ready to go to trial NOW, the prosecution must accommodate. If Nifong is too unprepared, too busy, too slow, too stupid, or too corrupt to meet that challenge, the case should by law be DISMISSED on the grounds that the accused have been denied their right to a speedy trial. Last, without resort to the defense’s exculpatory evidence, Nifong cannot prove any assertion of guilt against the accused. He has no evidence whatsoever that inplicates any of the three specific people he’s charged in the case. There is NO admissable identification of the accused — NONE. That, coupled with an absence of DNA or other forensic evidence, spells D I S M I S S A L.

Here is some interesting commentary from a Maryland law professor and former appellate attorney in the MD Attorney General’s office. His comments on the treatment of “Mr. Elmostafa” is in reference to the taxi driver recently arrested in Durham on a stale, meritless warrant over 2 years old. It was this same cab driver, lest we forget, who provided important alibi testimony for one of the two lacrosse players originally indicted. This is a facinating read, and sums up the obvious pattern of abuse engaged in by Durham County District Attorney Michael Nifong.

————————————————————————-

I am a professor of law and I divide my time between the University of Maryland School of Law and a graduate program in legal and ethical studies at the University of Baltimore. Criminal law is one of my teaching interests. Before I began teaching, I worked in the Criminal Appeals Division of the Maryland Attorney General’s office. I have been posting on the bulletin board under the name Thurber Whyte. You already have a crack legal team assembled there and I hope some of them will weigh in here as well.

You ask about Mr. Elmostafa’s arrest and Nifong’s conduct generally. As to Mr. Elmostafa’s situation, a warrant is an order to all peace officers to take some particular action. They have an affirmative duty to obey that order. The claim by police that they were just doing their duty by executing the warrant ordinarily would be quite plausible.

However both the timing and circumstances make are suspicious and do seem to indicate that the warrant was executed to at least discredit Mr. Elmostafa or, worse, to intimidate him.

First, it is true that police do routine background checks on witnesses to see who they are dealing with. However, Mr. Elmostafa has been known to police for quite some time and was interviewed by them shortly after his account of Seligmann’s cab ride was published. The police would have or should have discovered his outstanding warrant at that time. If duty we calling them, it would have done so at that time, not several weeks later. Second, it is also probably not a coincidence that his arrest occurred on the very same day that the Nifong and/or the police leaked information about results of the second dna test. The theme for Thursday seemed to be ‘The Empire Strikes Back.â?

I also find it suspicious that Mr. Elmostafa was arrested by not one, but two persons identified as the same detectives working on the lacrosse case. Serving a warrant does not require any investigation and is usually done by ordinary police officers or, in many jurisdictions, sheriff’s deputies. I sincerely doubt that these detectives were trying to finally get to the bottom of The Great Hecht’s Shoplifting Caper of 2003.

Naturalized citizens and resident aliens are particularly vulnerable to threats of prosecution. Conviction, even for a minor offense is grounds for loss of citizenship and deportation. Thus, the police have even more leverage to use on Mr. Elmostafa.

Attempting to alter the testimony of a potential witness or discouraging a witness from appearing at trial is obstruction of justice. If Mr. Elmostafa’s account is accurate, that the investigators asked him if he had anything new to say about the lacrosse case and when he said ‘no,â? took him to the magistate, then the police detectives involved committed a felony.

Finally, I would like to know what kind of warrant this was. If this was a bench warrant for failure to appear in court at the appointed date, then it might very plausibly have gone unnoticed or unacted upon. However, if this warrant was issued at the outset of the case and not executed because the police investigated the matter and, on the basis of their investigation, decided that Mr. Elmostafa was not in any way complicit with the person who did the shoplifting, then their failure to execute the warrant was a conscious decision on their part. If so, that decision would make a mockery of their claim that they were doing their duty by executing the warrant. Because all charges in the case were resolved against the principals, I suspect that the latter scenario was the case. I would very much like to see what is in the police report. If the police had decided not to pursue charges against Mr. Elmostafa or execute the warrant, that fact would have been indicated in the report and would have been seen by the police when they did their background check.

As to Nifong’s conduct generally, it is both unethical and unprofessional. Because you are soliciting legal opinion, I want everyone to know that not only are you correct in assuming the worst, but that the more you know the worse Nifong’s conduct appears.

Without getting into too detailed of a bill of particulars, he has violated, not one but likely, several ethical rules. There is little doubt at this point as to his egregious and systematic violation of the rule against publicly commenting on matters likely to be tried in court. Not only is he tainting the jury pool by trying the case in the media, he is using the opportunity to do so to make arguments to the jury pool that he could not make in court. Calling the defendants ‘hooligans,â? suggesting that innocent people do not need lawyers and inviting the inference of guilt from the silence of the accused are things that would bring instant and vigorous rebuke if uttered in open court and could potentially be grounds for mistrial or contempt of court.

The preamble to the rules of ethics used in North Carolina states that Lawyers should ‘cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.â? Although this is established as an ideal rather than a rule, it, nevertheless, provides another lens through which to these arguments. By making these sorts of arguments and generally acting as a demagogue, Nifong has done the opposite. He has spread misinformation about the law and sought to undermine its most cherished values, such as the equality of all persons before the law, the right to and importance of assistance of counsel and that the accused should be tried in a manner that respects their fundamental rights. Such statements also bring the profession into disrepute.

How serious are these matters? I handled a case on appeal where Mike Nifong’s counterpart in a local county referred to the defendants as ‘muttsâ? (as in Mutt and Jeff) in closing argument. This was fairly innocuous, but still out of bounds. I conceded the wrongfulness of this type of argument, but the case was still a clear winner for the state because the error was harmless given the overwhelming evidence of guilt. Ordinarily a case like this would be submitted on brief without argument. However, the Chief Judge of the Maryland Court of Special Appeals scheduled the case for oral argument and assigned it to his own panel so he could personally yell at me as the representative of the state and let me know that, even though the conviction had to be affirmed in that particular case, he would not tolerate this sort of conduct. There was no other argument or any questions from the panel. It was that important to the Chief Judge. I called the state’s attorney and ! tell him that the Chief Judge had a message for him.

Nifong also likely violated the rule against directly contacting persons represented by counsel when police went to interview the team members at their dorm. A basic legal principle is that a person cannot do through the use of an agent what he himself cannot do personally. Caselaw I have seen suggests that this is the principal applied where a prosecutor uses or encourages police to question suspects represented by counsel. The circumstances suggest that Nifong sent officers to get information he desperately needed in order to go forward with his indictments. Indeed, Nifong himself has been quick to tell us that he is the one directing the investigation, not police. This conduct is a serious matter and typically leads to reprimand or sanction in the state where I live.

Nifong, also likely violated the rule that requires prosecutors to pursue charges only were they personally believe that the accused has committed a crime and not simply because they believe they can secure a conviction. Many prosecutors try to avoid this duty by being agnostic or simply not thinking about it. However, Nifong went beyond that and took a position of willful ignorance by refusing to consider or even look at the exculpatory evidence presented to him by defense attorneys. Willful ignorance is not a defense to any guilty act and, even if the defendants did commit a rape, Nifong violated the rule by consciously shielding himself from any evidence that might have made him think twice about his decision to prosecute.

The worst part about Nifong’s unethical conduct is that he knows better and that the conduct is willful. When called on these matters, he becomes indignant and treats them as his entitlement.

Mike Nifong also comes up woefully short in terms of his professionalism. At the outset, he stated that this case was so important to him that he was assigning it to himself. Published reports seem to indicate that Nifong had a solid reputation as an effective advocate. The operative word there is ‘had.â? Nifong has not tried a felony case in several years. Moreover, rape cases are extremely tricky to try. Without getting into a lot of detail, juries hate hearing rape cases involving acquaintances and, worse are prone to apply their own questionable standards rather than the legal ones they are told to apply in order to acquit. Downtown juries are usually the worst in this regard. Having experience trying rape cases is absolutely vital. Most district attorney’s offices in a city the size of Durham would have one or two prosecutors who specialize in sexual crimes. If Nifong were truly serious about winning this case and, according to his lights, seeing justice ! done, he would never in one million years have assigned this case to himself.

Nifong was hasty in bringing the indictments. His timetable for doing so was apparently driven entirely by his election needs. The police still have not completed their investigation. As I write, the second round of dna tests have just been returned. First, he ordered the police to violate their own standards for photo identifications and those accepted as critical for proper identification just so he could generate some names to insert in his bill of indictment rather than wait for other evidence. Second, if other evidence does identify another person or persons who can be tried, Nifong has potentially undermined that case by linking it to the fortunes of cases cases against two men who may have solid alibis.

I do not believe that Nifong is an incompetent attorney. However, he has manifested an inclination to take risks in order to advance his own interests and, in doing so, to act in a manner contrary to the interests of the community that he is purporting to serve.

Remember when I told you that rape cases are difficult to try? One of the reasons is that jurors often come to court with the belief that women typically make false allegations for a variety of reasons, particularly vindictiveness. If at the end of this process, the complaint in this case does turn out to be false, Nifong has set public attitudes towards rape back 50 years by embracing the media attention that came with the case rather than quietly getting all of the facts and filtering this case out of the system.

In my time, I have worked with or had the opportunity to observe local prosecutors of varying levels of competence. Many of them were extremely zealous advocates. However, the overwhelming majority of them were highly ethical and professional in their outlook and approach to their work and generally good folks. I say that not because I worked on the prosecution side. If anything, I have an extremely low tolerance for this sort of foolishness because, as an appellate attorney, I was the one who had to try and clean up after inept or overreaching prosecutors. Aside from a couple of prosecutors in the federal system, I have never heard of anyone as unethical and venal as Mike Nifong.

I hasten to add that I am not expressing an opinion at this point as to the guilt or innocence of those accused or any others likely to be indicted. The evidence that has been made public so far does indeed caste serious doubt on the allegations. However, the prosecution may have more evidence that they are not disclosing at the moment. The actual truth cannot be determined until all facts are known and weighed together at trial. Your query was about Nifong’s conduct. Of that I am quite certain, however.

Jason Trumpbour, Trinity 88, Law 91

How strange that a Duke graduate would defend Duke.

Methinks “tvd” has got himself some legal book larnin’, too.

I like his way of challenging assumptions, and I like his respect for procedural and evidentiary rules. His admonishments are reminders we need to be prepared for the case to shake out at the proper time, in the proper forum and under the proper rules.

The instant gratification we get from Internet news sources, followed by instant analysis by the MSM and blogoshere pundits, isn’t going to resolve the Duke issue as fast as we might like.

Again, I’m heading to bed.

Aw, shewt, one final thought — I also liked it where “tvd” said, “Hopefully, it’ll hold up…” when he commented on the currently known exculpatory evidence. That means his heart is in the same place as mine.

And hell, I’m even a Carolina grad.

tvd:

In U.S. v. Wade (1967) The U.S. Supreme Court upheld the right of the accused to be represented by counsel during a corporeal identification.

In Foster v. California (1969) the Court ruled that witness identifications of criminal suspects issuing from suggestive procedures should be suppressed as evidence. The procedures employed in Foster made the defendant’s identification an inevitability in the Court’s opinion.

In Simmons v. United States (1968) the Court ruled that IN-COURT identification of a criminal defendant could also be suppressed in the aftermath of pretrial identification processes that introduced a “very substantial likelihood of irreparable misidentification” when viewed within the totality of circumstances.

Each of the foregoing impinges to one extent or another on the identification procedures employed in the Duke case. First, the accused were subject to identification without benefit of counsel. Though done through a photo ID process, their persons were available for direct inspection, thus lending substance to the hypothesis that corporeal ID was eschewed specifically to deny the accused the benefit of counsel. Second, the photo ID process was also suggestive to the extreme. In fact, the accuser was presented NO photos depicting people other than lax team members. The ID process being equally a test for witness as well as suspect, the mechanics used in this case completely relieved the accuser of any burden to establish veracity. Third, having selected the accused through a grossly suggestive process, any future abilty of the victim to render reliable personal ID in court has been destroyed.

Meaningful relief for the defense could predictably include exclusion of the accuser’s photo lineup ID as well as any live, in-court ID by her of the accused. Though appellate courts have often in the past been inclined to treat suggestive identifications as issues best left to the finder of fact, empirical studies have cast increasing doubt on the trustworthiness of eyewitness testimony, and the courts are beginning to listen, State v. Laquan Ledbetter (2005) in CT being an important recent precedent.

Absent eyewitness testimony identifying the accused as the perpetrators, what is there to connect them personally to the allegations being tried? The answer is NOTHING. With no identification evidence whatsoever, defense’s predictable motion to dismiss will be granted. It is of course possible that the court could work a grave injustice by denying any or all of these motions, which supports the generally accepted notion that trial is an honor best AVOIDED.

As pertaining to claims emanating from the Constitutional right to a speedy trial, Wingo is, indeed, the controlling case. In general, though, the courts are disinclined to entertain interlocutory appeals on speedy trial grounds, regardless of the factual circumstances, rather opting for strict adherence to the doctrine of finality. The rationale for this, in part, relies on a presumption that interlocutory appeals, themselves, introduce untoward delay. Absent a successful motion for speedy trial or motion to dismiss in the face of protracted delay, it would seem that the defense is stuck with Mr. Nifong’s abusive timetable. The legal system in North Carolina continues in its failure to distinguish itself other than in opprobrium.

I wish someone would set up a defense fund for these innocent boys! I would be the first to contribute. How ’bout it LaShawn?

I find it telling that Nifong has continued his malicious prosecution of Evans on the noise ordinance violation from January even though his “co-defendant” was found not guilty. The judge in the case has even said, “This court can make better use of its time than engaging in such cases as this.”

Add to that the comment from Nifong that he didn’t think the accuser’s cell phone wouldn’t provide any evidence for the defense. No. Only the accuser and her father BOTH said she called him once she arrived at her location that night. It would only provide a more accurate time for her arrival at the party. And, if there are any additional phone calls made after, say, 12:10 a.m., that wouldn’t be important. I can imagine Nifong arguing that Seligmann AND the accuser are both on the phone while she’s being violated.

“The accused lost an irreplacable opportunity to object to the process and to insist on alternate procedures of greater probative value.”

You’re ducking the question. Irreplacable doesn’t mean valuable. As for alternative procedures, why take the risk? If you (as a defense attorney) insist on the most airtight lineup process, and your client still gets fingered, you have big problems. Here, the defense can object to the process by virtue of attacking it at trial or through motion practice.

“Beyond this, by virtue of procedural defect, the accused has been denied the opportunity to demonstrate veracity as a witness.”

By virtue of a bad lineup process? How?

“The accuser enjoys no right to due process in these proceedings and consequently suffers no injury if her testimony is excluded from consideration.”

Sure. Except that her alleged attacker walks free, and she doesn’t get a chance to tell her version of events. I suppose there are ways in which that can be characterized as “suffering no injury,” but I doubt it.

In any event, that probably presents a Confrontation Clause problem, although I don’t know who would raise it.

“As for the substance of that testimony, procedural defect renders it impossible to evaluate on the merits.”

We’ll have to disagree on this point. The process may make the testimony less credible, but it can still be evaluated on the merits.

“The finder of fact would therefore be compelled to evaluate the efficacy of the process, rather than the veracity of the witness, which is beyond his competence.”

Not at all, at least as it relates to the credibility of the witness and the accuracy of the testimony. This is, on its face, an elitist position. You really think that twelve people can’t tell the difference between “lineup of all lacrosse players” and “lineup of random people”? It’s not that hard to explain, you know.

“It is my contention that eyewitness testimony by the accuser identifying the accused should properly be suppressed as evidence in accordance with my reasoning above.”

To supress this, the judge would have to find that there was no way the accuser was telling the truth (not his/her job), or take judical notice of something similar, which is an impossible standard under the rules of evidence (I think to take judicial notice, something has to be universally accepted, but I don’t recall the language of the rule precisely).

Your reasoning above doesn’t state any rules or any law. The accuser’s testimony is first-hand, eyewitness testimony. That kind of evidence cannot be suppressed on the basis of witness credibility. She gets to tell her story, and the defense gets to raise all the issues you’ve mentioned as to the inadequacy of the process, the fallibility of eyewitness testimony, the unreliability of cross-racial identification, anything they want to. If the defense had support for a motion to dismiss, they’d have moved for that instead of for more information.

My last post may have been unintentionally insulting to street gang members.

I don’t even think street gang members would hang around and become accessories to rape. Gang members may not have gone immediately to the police, but most would have physically and legally distanced themselves from rape. A few gang members may have even called the police anonymously as that stripper did.

tvd said:

“The accused lost an irreplacable opportunity to object to the process and to insist on alternate procedures of greater probative value.”

You’re ducking the question. Irreplacable doesn’t mean valuable. As for alternative procedures, why take the risk? If you (as a defense attorney) insist on the most airtight lineup process, and your client still gets fingered, you have big problems. Here, the defense can object to the process by virtue of attacking it at trial or through motion practice

SteveDinMD: On the whole, I consider it poor counsel to knowingly and willingly allow a client to suffer misidentification in the hope of creating grounds for possible appeal. I consider it far better to AVOID trial in the first place. Absent identification by the accused, no one would have been indicted in the first place.

tvd said:

“Beyond this, by virtue of procedural defect, the accused has been denied the opportunity to demonstrate veracity as a witness.”

By virtue of a bad lineup process? How?

SteveDinMD: She has been denied this opportunity by virtue of being subjected to a “test” with no wrong answers. Do you mean to implicitly advocate in favor of the standards of corporeal identification applied in the Scottsboro Case? Would you favor the following inquiry presented in the context of such ID process: “Ok, little Miss White Lady, which of these here NEEgroes is the one that RAPED ‘Ya?” I certainly hope not. At any rate, the defense should not be made to suffer irreparable harm because of actions on the part of the prosecution rooted in either incompetence or nefariousness.

tvd said:

“The accuser enjoys no right to due process in these proceedings and consequently suffers no injury if her testimony is excluded from consideration.”

Sure. Except that her alleged attacker walks free, and she doesn’t get a chance to tell her version of events. I suppose there are ways in which that can be characterized as “suffering no injury,” but I doubt it.

SteveDinMD: Only the accused have a right to a fair trial. Nevertheless, the accuser may tell her version of events. She may not, however, regurgitate information fed to her by the prosecution, misrepresenting it as eyewitness testimony.

tvd said:

“As for the substance of that testimony, procedural defect renders it impossible to evaluate on the merits.”

We’ll have to disagree on this point. The process may make the testimony less credible, but it can still be evaluated on the merits.

SteveDinMD: Yes, we disagree. The ID process employed made no demands of recollection or truthfulness on the accuser. Had she selected ANY 3 photos, such selection would have resulted in indictments for the 3 unfortunates so fingered, whoever they might have been. Moreover, there is no way for the court to assess the extent to which any such ID was made through accurate recollection, honest error, or willful fraud. It therefore has zero probative value and should be excluded.

tvd said:

“The finder of fact would therefore be compelled to evaluate the efficacy of the process, rather than the veracity of the witness, which is beyond his competence.”

Not at all, at least as it relates to the credibility of the witness and the accuracy of the testimony. This is, on its face, an elitist position. You really think that twelve people can’t tell the difference between “lineup of all lacrosse players” and “lineup of random people”? It’s not that hard to explain, you know.

SteveDinMD: I use the word competence in a legal sense, as pertaining to a jury being ill suited to decide issues of law. Such issue in this case being whether process suggestiveness rises to the Simmons standard, when viewed within the totality of circumstances. I believe it does, but this is not a matter for the jury’s notice. Sticking strictly with process efficacy for the moment, would you permit a jury to weigh the relative merit of an identification made using a Ouija Board? Using a deck of Tarot Cards? What about a photo lineup of 46 photos of a SINGLE suspect? Some “processes” are so patently defective that a jury should be relieved of any need to consider them in evidence.

It appears that our lawyer friends are use to getting paid by the word or the hour. These posts are stating the obvious over and over. Let us get to the real question.

When and how can the boys force a hearing for dismissal of the evidence?

Do they have any remedy in the Federal courts for the speedy trial problem?

Can the US Attorney open a civil rights violation investigation for the boys? That is investigating Nifungu?

Chesire and Wade are probalby the two most connected Defense Attornies in the State when will they act? And a final question, when is Russell Robinson, the head of Robinson, Bradshaw, going to step up to the plate. He’s the chairman of the Duke Endowment and his wife is on the exective board of the board of trustees at Duke. It is time for you all to start putting the pressure on EVERYONE to get Nifungu off this case. Let’s stop posting and start knicking some a** . Just a thought. Kemp

Steve,

Good points, I did not think any Federal remedy was available until after the trial, but what about the defense asking for a hearing on the evidence? I doubt also that any US Attorny will touch this until it is over, but I am looking for hope that this can move along so that the two boys can get back into Duke and finish their studies. As I posted earlier, my son says Reade maybe going to Yale next year. Still not sure that is 100%. Colin probably has some option too. My point about removing Nifungu was actually a hope that the venue could be moved, but I don’t see that as a possiblity until trial. In any case, the real question is when can the defense go to a judge and demand a hearing?

Nifungu is an ole Chapel Hill hippie, his law school classmate that I’ve talked to were NOT inpressed with him. So keeping him does no harm. Gosh, I wish he’d gotten into Duke, maybe he won’t be so bitter. Ha Ha!

Kemp

SteveDinMD writes – ““Ok, little Miss White Lady, which of these here NEEgroes is the one that RAPED ‘Ya?”

tvd responds – “Not analogous in any sense. Why are you so insistent on bringing race into the discussion?”

Chris Ford replies back –

No, it is you that implicitly brings up rape when you imply that the 47 Lacrosse players are somehow so bound by common ties that all 47 would lie and cover up about a major crime. Hmmm, now what commonality do we assign to this “Band of Evil Brothers”? Class, race? (Leaving aside the black player who probably “acts white” in the eyes of the black Durham political community and NCCU activists).

Indeed, many believe the more of “other people” being there, there was, to rebut the stripper’s claims, the more credible her claims are, because YOU KNOW that THOSE PEOPLE STICK TOGETHER. That is just how THEY are. THEY think SO ALIKE that they didn’t even have to meet after the party to work out a cover story because THOSE PEOPLE are expected to lie and know the story THEIR PEOPLE expect them to give from the day they were born.

Which is totally racist and preposterous of you, tvd.

If as SteveDinMD did in another example, the roles were reversed, the transparent racism of your position would be obvious even to you. A white stripper claims she was raped when she wandered into a party given by members of the NCCU Eagles Marching Band. 47 attendees were black, one had his white GF with him. All 47 deny anything happened. Whites hear about the charges and readily term them believable and dredge up 100-year old sentiments and grievances, saying that because blacks are tribal, they tend to rally together and lie instinctively about such things. And that 47 “lying” to save 3 brothers accused actually makes them believe the white womans story even more, and if there were double “THOSE PEOPLE” at the party, the white accusers claims would be doubly credible on top of what they racially believe already.
================================

SteveDinMD & Others – If something very fishy is happening, it may involve other than Nifong. We Americans have a tendency to believe anything boils down to a single “mastermind” when in fact it seldomly does. There are other players. The Town Manager has extensive ties to the police department and to NCCU. There is an ambitious young detective on the case as the lead investigator. Some of the more dubious tactics – attempting to interrogate team members without retained counsel present on “dorm raids”, pressuring the taxi driver, the set up of the “pick which of these 46 Duke players raped you” was done by a veteran Sargent assigned as co-lead investigator. We don’t know the SANE nurse and how vehement she was that the stripper was raped, what gender politics the SANE nurse might hold, how influential she was in getting others to believe a gang rape happened.

Clearly…oops…based on impressions of cops before the “official party line emerged”…the cops handling the incident initially believed they had a drunk, non-credible accuser whose story changed by the minute. Then something happened that reversed all that opinion and people started all falling in line.
====================================
SteveDin MD – She has been denied this opportunity by virtue of being subjected to a “test” with no wrong answers.”“Do you mean to implicitly advocate in favor of the standards of corporeal identification applied in the Scottsboro Case? Would you favor the following inquiry presented in the context of such ID process: “Ok, little Miss White Lady, which of these here NEEgroes is the one that RAPED ‘Ya?”

Tvd responds – “Not analogous in any sense. Why are you so insistent on bringing race into the discussion? Besides, that seems a logical inquiry. If I say a blond guy assaulted me, I should hope that the lineup consists of blond guys. Doesn’t the lineup have to match potential suspects?”

Actually, SteveDinMD is dead on mark. The way it worked way back when was that the Negroes or say red-headed whites in the vicinity of a crime were rounded up. Then interrogated by cops, those with alibis let go. Those with no alibis were then presented to the eyewitness. “Which Negro did it??” There was then no wrong answer. A Negro was pinned with the crime and guaranteed to swing. Or some red-head. Obviously, this practice was modified over the years so that witness ID fell under rules where “no wrong ID”, “pick a suspect, any suspect” fell by the wayside..except, it seems, in Southern backwater Durham..

Tvd goes on – “This lineup is not so patently unreasonable. It’s not as though this is the first time a lineup has been used in similar manner. I’m not convinced that this was totally proper, but it’s not something that shocks the conscience, or there wouldn’t have been an indictment.”

It is, to say the least, highly unusual, even in the South these days. All 46 white Duke players voluntarily assembled and had photos taken. They were available for a physical lineup. They weren’t invited because their lawyers would have asked about who the “dummies” would be. It was like being accused of murder and finding yourself being ID’d in a lineup of one. In fact, it is identical to the Scottsboro technique. “Which of these 22 Negroes in front of you who were on the train raped you fair white women??”

And indicted? Sorry, the American grand jury system is the disgrace of Western Law. It is a prosecutorial rubberstamp unless the accused are offered an opportunity to testify in front of it. Which the accused weren’t in the Duke rape case.
=======================
Tvr asks imploringly: “I mean, you do believe in the rule of law, right?”

No, not really, and disagreeing does not make one a “vigilante” any more than those railing at laws written by past ruling elites pushing their Jim Crow politics, laws enriching their fatcat peers make past generations “vigilantes’ when they opposed many laws they properly saw as unjust and against their interests.

One can support certain principles like not penalizing the innocent, fairly punish the guilty, and double jeopardy while having no respect whatsoever for the idiots on the OJ jury, our runaway tort claims system that punishes the innocent with financial blackmail and unrecoverable costs after a malicious lawsuit. Or laws that are written specifically to steal tax dollars from the people purely to enrich power elite’s personal or corporate cronies, laws that gender discriminate against men in family court, or court officers deep in politics that use law and their legal powers to screw people to advance their careers or incomes.
======================================

The more that I think about it, one of the unstated reasons for defense delaying a trial is that witness testimony both fads and is less credible over time. “It was over two years ago, how could you remember every minute?”

Usually decaying witness testimony works in favor of the defense, except in alibi cases, especially complex alibi cases that depend on multiple alibi witnesses to cover the entire timeline (party).

I am not a lawyer, and just throwing this out, but wouldn’t this be good speedy trial grounds for reversal – combined with the court’s rejection of the speedy trial motion.

Please note, I am not arguing for reversal or dismal, only that the state should provide the constitutionally guaranteed speedy trial to avoid future problems.

Kemp: I see you’re quite the animal rights activist over at Ace’s place today …..

UNK said:

The more that I think about it, one of the unstated reasons for defense delaying a trial is that witness testimony both fads and is less credible over time. “It was over two years ago, how could you remember every minute?”

Usually decaying witness testimony works in favor of the defense, except in alibi cases, especially complex alibi cases that depend on multiple alibi witnesses to cover the entire timeline (party).

I am not a lawyer, and just throwing this out, but wouldn’t this be good speedy trial grounds for reversal – combined with the court’s rejection of the speedy trial motion.

SteveDinMD: I believe that argument would exist, but it would not likely be the defense’s strongest card. You, yourself observe that its primary usefulness would be in arguing for a reversal of a CONVICTION. That’s not where I would choose to be. My sense of the matter is that the defense will fly or fall on the admissability of the accuser ID. If it’s excluded, the case should be over. If it’s not excluded, and the result is a conviction at trial despite the accuser’s credibility issues and the exculpatory evidence, inadmissability of the ID should probably be the first claim in the petition to the Court of Appeals.

Here’s one more note of caution. An appeal based on denial of speedy trial citing “faded witness recollections” would probably not meet the court’s definition of reversible error. Having a witness die or disappear would be far better from an appeals standpoint, otherwise the court could rule that the passage of time and impermanence of memory are rightly within the competence of the finder of fact to assess.

At the risk of sounding like a Northern elitist, what type of legal system are you running down in NC?

I know this is probably an exception and even up North, people of varying intelligence run the legal system, and mistakes are made. But a prosecutor and judge essentially saying, “We don’t care about the constitutional right to a speedy trial” and so on.

It’s good in the past when many blacks were falsely accused of rape by white women, that NC had a speedy trial rule and rape-victim-shield laws were not invented.

It would have been more of a nightmare for blacks, if the stereotypical Southern Sheriff of the 1930s could throw any darkie in jail on the word of a white “woman” for years (or 20 months) without trial (or for any crime for that matter), and the trials would have been even more of a joke if it was “unfair” to impeach the white woman with her past consensual negro-loving, rough-sex and her criminal history.

Dear lawyers, I am curious,

What are the various ways this case could be dismissed prior to going to trial?

If and when it is exposed to be a total fraud, what remedies are available to the Accused?

What can happen to the Accuser?

What can happen to Nifong?

Why is the burden of proof so much lighter in civil cases than in criminal?

What was the rationale for removing the “speedy trial” statute from NC law? I can’t imagine any reasonable justification?

Thanks in advance for the answers

Chris Ford:

“No, it is you that implicitly brings up rape when you imply that the 47 Lacrosse players are somehow so bound by common ties that all 47 would lie and cover up about a major crime. Hmmm, now what commonality do we assign to this “Band of Evil Brothers”? Class, race?”

The hell I did. The simplest explanation is always the best, and the simplest explanation is that all of them are ON THE SAME TEAM. I suppose voluntary association doesn’t mean anything when you can easily rail about race or class. If pointing out that members of the same voluntary association have some interest in preserving the integrity of that organization is racist, then fine.

“No, not really, and disagreeing does not make one a “vigilante” any more than those railing at laws written by past ruling elites pushing their Jim Crow politics, laws enriching their fatcat peers make past generations “vigilantes’ when they opposed many laws they properly saw as unjust and against their interests.”

The ruling elites weren’t the ones pushing Jim Crow politics and hanging folks from trees. That was mob justice, which you endorse when you endorse a system that only works in your eyes when it comes to the right result in your eyes. That’s elitist–why is your moral judgment any better than anyone else’s? Even to the extent I agree with your points, the fact that you don’t believe in using the rule of law to get there means that you have no concept of justice outside of what feels right to you.

“One can support certain principles like not penalizing the innocent, fairly punish the guilty, and double jeopardy while having no respect whatsoever for the idiots on the OJ jury, our runaway tort claims system that punishes the innocent with financial blackmail and unrecoverable costs after a malicious lawsuit. Or laws that are written specifically to steal tax dollars from the people purely to enrich power elite’s personal or corporate cronies, laws that gender discriminate against men in family court, or court officers deep in politics that use law and their legal powers to screw people to advance their careers or incomes.”

Show me where this is the rule, and not the newsworthy man-bites-dog exception that proves that 90% of the time, the system acts as it should. I’m of the opinion that the Duke case (and the OJ case, and the frivolous lawsuits that make the news) is newsworthy because of their rarity. Now, if you believe the media, that sort of thing happens everyday.

tvd said:

The ruling elites weren’t the ones pushing Jim Crow politics and hanging folks from trees. That was mob justice, which you endorse when you endorse a system that only works in your eyes when it comes to the right result in your eyes. That’s elitist–why is your moral judgment any better than anyone else’s? Even to the extent I agree with your points, the fact that you don’t believe in using the rule of law to get there means that you have no concept of justice outside of what feels right to you.

SteveDinMD: Who, then, if not the “elites” were sitting in state legislatures passing articles of secession to protect that quaint little local tradition called slavery? Did not these same elites and their progeny also adopt the body of Jim Crow law in the generations following? If the elites weren’t dirtying their hands doing the actual lynching, they at least placed their seal of approval on the process. Our own time, though different in the bill of particulars, is in many ways yet susceptible to injustice under color of law. It’s the nature of self government. It places great demands on the electorate as the ultimate protector of liberty. That said, I would NEVER trade the U.S. legal system for a civil law European equivalent. I’ll take a jury every time — even in Durham.

All of your “pedagogical devices” are hypotheticals based on complete guesses. Coulda-woulda-shoulda, in other words. And you continue to hold to the assumption that there is no evidence, which undergirds all of your hypotheticals. You don’t have enough information to proceed as if that were established fact, and until it is, none of your points hold up.

I have trouble believing that a group of black men would not be indicted for raping a white woman in Durham. If there’s *any* sociological stuff going on here, it’s gender-based, but that’s inherent in any race.

I reiterate–it’s not society’s fault these men were indicted. I believe in individual personal responsibility. I know there’s a rush for everyone to paint themselves as a victim in today’s society, but these young men have hardly been lynched.

Being lynched requires vigilante justice of the sort that you and Mr. Ford advocate–the mob feeling that “this is *unjust*, so it falls to us to enact punishment before the processes of law take place”. Being lynched requires a system that is stacked unfairly against the accused…and I note that these young men are being treated as well or better than most criminal defendants.

“Did not these same elites and their progeny also adopt the body of Jim Crow law in the generations following? If the elites weren’t dirtying their hands doing the actual lynching, they at least placed their seal of approval on the process.”

I am not a historian, but I think by the 1930s, the Scottsboro Trial, the Southern white elite was trying to stop lynchings.

Imagine having a Duke rape case every month. Reports and pictures of a lynching every month in Northern newspapers in the 1920s and 1930s were very harmful to the South’s reputation and business prospects. Even white Southerners got tired of being questioned about every lynching: “Governor, you want to be president, but John Doe was just lynched in your state?”

Many Southern elites, often lawyers, while prejudiced, thought that even blacks deserved a trial.

I think the myth of “blacks have no white or Jewish friends in the struggle” is more the result of radical blacks trying to increase their victimhood than historically accurate., but I digress from the topic of this post.

(Sarcasm on)
If we don’t need to give people a speed trial or reasonable bail, why don’t we just put people in jail for a year or two or five and save ourselves the cost and trouble of a trial and avoid all this unpleasantness.

Bridges in Shelby doesn’t either, but in Charlotte Ole Hickory house does, though the que isn’t much, sauce is way to sweet. In Lexington there are are two or three joints with beer. SC BBQ shops seem to have more beer sellers(hog heaven in Pawleys comes to mind), maybe that’s why SC always votes GOP? The answer is always take out, but then the puppies get cold. Kemp

“It makes me think – god help me if I ever get falsely accused – I will be ruined even though I am totally innocent!”

You’re a male. Males deserve everything they get. (sarc/off)

“Is there any record of someone being thrown in jail for having cried rape falsely?”

I still like the remedy in Deut. 19.15ff

“If a malicious witness takes the stand to accuse a man of a crime. . . and if the Winters proves to be a liar, giving false testimony against his brother, then do to him as he intended to do to his brother. . . The rest of the people will hear of this and be afraid, and never again will such an evil thing be done among you.”

So sad. We gotta start praying for these boys and for that awlful stripper woman to end up in jail for her lies.

Any one know why Nifong is trying to hide evidense that the stripper was on the phone during the time she claimed she was raped.

“Any one know why Nifong is trying to hide evidense that the stripper was on the phone during the time she claimed she was raped. ”

I don’t think it was shown that he was trying to “hide evidence” just that he did not know (if the evidence has been processed.) – just as the police did not apparently know about the phone calls (alibi) that one accused made (or at least did not follow up with the cab driver or girlfriend he called).

My guess, and it’s a guess, is that the police reached the conclusion that there was not currently enough evidence to pursue until politically pushed. An alternative explanation is stupidity or “oversight.”

Kemperman, at 116.

Law school friend of mine who grew up there described the way you can tell whether a Lexington, NC barbecue joint is good or not: The good ones will have a condom machine in the men’s room….

Hey, I’m not making this up!!!

…only proves the claims of the accuser are MORE CREDIBLE for that – indicates to me folks like tvd are locked into their beliefs by viewing the class through a lens of identity politics dependent on race or class.”

Who brought up race and class initially? YOU. Who continues to bring it up over and over and over again? YOU.

There are certainly folks who believe race and class are key to the case–but I’m not one of them, and don’t you dare try to pin some “identity politics” card on me, just because I disagree with you on the merits of the legal system.

Keep my name out of your mouth that way. Thanks in advance.

“Who brought up race and class initially? YOU. Who continues to bring it up over and over and over again? YOU.”

No, you were the one that initially said it was quite credible to believe a lying whore with an extensive criminal record over 47 young men with relatively spotless records because “THEY” were all alike, bonded to silence or lies to save “PEERs”….Then your proclamation of the lineup tactic as “perfectly credible so the suspects ID’d are to be limited & linked to just the team the rapists came from”. You drip presumptions of race and class.

There are certainly folks who believe race and class are key to the case–but I’m not one of them, and don’t you dare try to pin some “identity politics” card on me, just because I disagree with you on the merits of the legal system.

I do dare, because the whole logic of your argument is predicated on biases based on race or class. That a mass cover-up is wholly believable given “THEY ARE ALL ALIKE”.

If it’s not your 46 white players risking prison for rape or perjury for someone they met, sometimes, just 6 months earlier – out of class and race solidarity, then what are you saying, tvd? That all athletes, NAACP members, soldiers, Glee Club singers automatically lie for one another?? Try other nutty cover-up conspiracies like how TWA flight 800 was shot down by accident and then concealed by over 1100 USN sailors, hundreds at the Pentagon, civilian air traffic controllers, Canadian divers…THEY were almost all of the Ex-military class.

“Keep my name out of your mouth that way. Thanks in advance.”

Try arguing intelligently and without the race or class bias you bring and others will stop bringing up your name. Far be it from me to want your name on my mouth.