Two weeks ago when I quoted Dan Abrams as saying "Drop the charges" on the Duke rape debacle, I thought the prosecution case could not get any weaker.
I was wrong - it could get a lot weaker:
New court filings in the Duke lacrosse rape case suggest that a second exotic dancer initially told Durham police that the alleged victim's rape claim could not be true and that it was "a crock." According to the 32-page motion filed on Wednesday by defense attorney Kirk Osborn, the second dancer, Kim Roberts, told police that she was with the alleged victim the entire time at the March 13 party except for a period of less than five minutes.
But in Durham police search warrants made public earlier this year, the alleged victim told police she had been raped, beaten and sodomized for a 30-minute period by three Duke lacrosse players in a bathroom. Roberts also initially told police, according to the motion, that the alleged victim never went back in to the house at 610 N. Buchanan Blvd., even though authorities have said in court documents that the two left the party and later returned at the urging of some of the partygoers.
Instead, the motion says, Roberts -- also identified as Kim Pittman -- locked the alleged victim in Roberts' Honda Accord while she proceeded to the back of the house to look for some of the accuser's personal belongings. Osborn, who filed the motion on behalf of 20-year-old Reade Seligmann, also argues that investigators deliberately omitted information as they moved forward with the case.
Wednesday's motion also claims that the initial examination performed on the alleged victim did not reach a conclusion as to whether she was raped and that the only trace of physical trauma included a scratch on the alleged victim's knee and heel. Osborn writes that the alleged victim said she was hit, kicked and strangled, but that the investigator in the case, Benjamin Himan, omitted that "the examining physician … at 3:14 a.m. [on March 14] found no neck, back, chest or abdominal tenderness."
He also writes that the investigator's probable cause affidavit omitted that the sexual assault examination found that "no condoms, fingers or foreign objects were used during the alleged sexual assault." The motion also states that the nurse who did the examination was not technically certified as a sexual-assault nurse, but that she was still "in training."
...The motion also states that prior to going to the lacrosse player's party that the accuser "had a function at a hotel room with a couple where she performed using a [sexual device], which clearly could have caused signs or symptoms of vaginal penetration."
...In an April interview with The Associated Press, Roberts, 31, said she does not know if an attack actually happened, but said she has "to wonder about their character," referring to the suspects in the case.
"I was not in the bathroom when it happened, so I can't say a rape occurred -- and I never will," she said.
Now I understand that this is a defense motion and they have cherry-picked the most favorable bits of the evidence disclosed to them.
However, given his already weak case, I can't begin to imagine how the DA hopes to skate past all this at trial. Well, there isn't going to be a trial, so why wonder.
ABC News is stronger on the objective of the defense filing:
Defense attorneys in the Duke rape investigation are aiming to cut the heart out of the prosecution's case — they want the alleged victim's photo lineup identification of three lacrosse players thrown out of court.
In motions filed Thursday, defense lawyer Kirk Osborn argued that Durham police withheld key facts contradicting the alleged victim's account when they obtained a court order to photograph and take DNA samples from the Duke lacrosse team members.
If that evidence is tossed, well, hard luck for DA Nifong. But this filing also works well in the court of public opinion - it will be interesting to see the prosecution response.
It is also encouraging to see that the NY Times has regained interest in this case.
UPDATE: The NY Times has taken a whole new tack here! On Sunday, Nick Kristof slowly eased the Times readership back into low earth orbit - let's excerpt his bonding attempt with the (presumably) liberal times readership:
As more facts come out about the Duke lacrosse scandal, it should prompt some deep reflection.
No, not just about racism and sexism, but also about the perniciousness of any kind of prejudice that reduces people — yes, even white jocks — to racial caricatures. This has not been the finest hour of either the news media or academia: too many rushed to make the Duke case part of the 300-year-old narrative of white men brutalizing black women. That narrative is real, but any incident needs to be examined on its own merits rather than simply glimpsed through the prisms of race and class.
Racism runs through American history — African-American men still risk arrest for the de facto offense of "being black near a crime scene." But the lesson of that wretched past should be to look beyond race and focus relentlessly on facts.
Interesting - I would have thought that the "reality-based community" was well represented amongst the Times readers, but Mr. Kristof seems to be speaking to the "narrative based community". Do these people really need to be reminded that facts matter?
Well. Mr. Kristof then highlights the many flaws in this case and commences to demonize the DA:
Granted, traumatized victims and witnesses can be terrified and confused. We don't know what happened, and we should avoid stereotyping the accuser because of her job — but we should also avoid stereotypes of lacrosse players as "hooligans."
That's what the district attorney, Mike Nifong, called the Duke athletes. As I see it, he may be the real culprit here. For starters, his many public statements seem to violate the North Carolina rules of professional conduct; Section 3.8f bars prosecutors from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
Mr. Nifong may have had a motive for prosecuting a case that wouldn't otherwise merit it: using it as a campaign tool. Heavily outspent in a tough three-way election race, he was the lone white man on the ballot, and he needed both media attention and black votes to win. In the end, he got twice as many black votes as his closest opponent, and that put him over the top.
Works for me - we may have a bipartisan consensus that Nifong is the villain of this piece. And even the narrative based community ought to be able to rally against a politically ambitious white Southern prosecutor.
Meanwhile, the Monday Times takes a long look at this story (buried deep in section A):
Prosecutor's Silence on Duke Rape Case Leaves Public With Plenty of Questions
DURHAM, N.C., June 9 — When a woman hired to dance at a Duke University lacrosse team party claimed that members of the team raped her, Michael B. Nifong, the district attorney for Durham County, responded with an aggressive, unflinching and very public investigation.
"There's no doubt in my mind that she was raped and assaulted at this location," Mr. Nifong said on national television after the case surfaced in March. Mr. Nifong called other lacrosse players "hooligans" who had aided, abetted or covered up for the rapists. Local police officers seemed equally certain that they had a horrific crime to solve.
But in the intervening months, the case has come to appear far less robust. Three players have been indicted, but evidence that has surfaced, much of it turned over to defense lawyers by prosecutors and then filed in court with defense motions, has thrown the woman's claims into doubt. Mr. Nifong, so vocal at first, has refused to speak publicly about the case since the beginning of April.
The result is a growing perception of a case in trouble. Increasingly, the onus is on the district attorney. People in Durham are asking what Mr. Nifong is up to, whether his prosecution was influenced by politics — he was in the midst of a campaign when the case began — and what other evidence he might have.
"I have no doubt that Mike believes her," said H. Wood Vann, a lawyer in Durham who once represented the woman in a joy-riding case and has also done general legal work for her parents. Mr. Vann said that he wanted to give her the benefit of the doubt but that few other people in town do, and he added that many wonder why Mr. Nifong persists.
"At some point in time he's going to have to get to a tipping point," Mr. Vann said. "His case is going to hell in public opinion. He's suffering death by a thousand cuts."
If we can cite Fox and MSNBC, as noted above, then the cable coverage turned against Nifong several weeks ago; now the stronghold of conventional lefty wisdom in the print media seems to have turned as well. It will be interesting to see whether Nifong can sustain this charade past his November election - the accuser's father has already hinted at an exit strategy (from the Friday Times):
The woman's father said in an interview Thursday that she was seeing a psychiatrist and was in no condition to testify. "I don't know how long it'll be before she gets back in her right frame of mind," he said. "It could be years."
Her father said he believed his daughter's account of the matter and hoped the district attorney would move ahead with the case. The woman, who is no longer living with her parents, could not be reached for comment.
The strain on the accuser was too great, Nifong mishandled the press, he was outlawyered - folks who want to believe the accuser will still have plenty of excuses for endorsing a dismissal of the case.
MORE: A baffling analysis of the white/black vote in Nifong's race. After a quick read I reach exactly the opposite conclusion of the author:
Durham voters did not vote along racial lines in DA contest, says VU professor 6-12-2006
NASHVILLE, Tenn. – The district attorney prosecuting the rape case against three of Duke University’s lacrosse players received significant support from both black and white voters in the recent Durham primary, according to a voting analysis by Vanderbilt University political scientist Christian Grose.
“Given that about the same percentage of blacks and whites supported Michael Nifong, the results do not suggest a racially divided city,” Grose said. Nifong obtained felony indictments against white student-athletes accused of kidnapping and raping a black dancer hired to perform at a team party. Grose’s precinct-by-precinct analysis showed that Nifong received 44 percent of the black vote and 46.2 percent of the white/nonblack vote.
Just over half (50.6 percent) of the total number of white voters cast their ballots for Freda Black, the other white candidate in the race. She also received support from 25.2 percent of the black voters. Meanwhile, the only African-American candidate in the race for district attorney, Keith Bishop, received 30.8 percent of the black vote and 3.2 percent of the white/nonblack vote. “Bishop was endorsed by the Durham Committee on the Affairs of Black People, a powerful African-American group for endorsements,” said Grose, a Duke University graduate. “Many times, although not in this DA election, the committee can guarantee much black voter support.”
Nifong received a larger percentage of the black vote than the other two contenders, but he did not get a majority of the black vote. His percentage of the white vote was slightly less than 50 percent. “Nifong basically did well among both blacks and whites, demonstrating that Durham voters do not seem to be polarized along racial lines, at least on this issue,” Grose said. “In addition, the voting results suggest that Nifong’s high-profile attention to this case could have helped him with black voters.”
So the black candidate had roughly zero appeal to whites. Nifong had much more crossover appeal to blacks than his other white opponent. Might the case have helped? By the last sentence (which seems to be at odds with the headline), the professor and I agree.
(SIDEBAR: Didn't Kristof say Nifong had two black opponents? Not so fast - per Kristof, "he was the lone white man on the ballot", but his other white opponent was a woman. What a clown - is Kristof communicating or obfuscating?)