The Duke Debacle

[The LA Times surely counts as major media, and they lead with the real story:

Lab director says he withheld evidence in Duke case

By David Zucchino, Times Staff Writer
5:53 PM PST, December 15, 2006

Durham, N.C. -- In the latest setback to the prosecution in the Duke University lacrosse rape case, the director of a private lab hired by the district attorney testified Friday that he withheld exculpatory DNA evidence after conferring with prosecutors.

Under questioning from defense lawyers, the lab director confirmed that DNA samples taken from the body and clothing of a stripper who accused three lacrosse players of rape did not match any of the defendants. The tests found DNA from several unknown males, Brian Meehan testified, but none matched DNA taken from 43 other lacrosse team members.

... Meehan testified that he and Nifong had decided to withhold certain results of the DNA tests in order to protect the privacy of the Duke lacrosse players who had submitted samples. Asked by a defense attorney how lab results clearing all 46 players would violate their privacy, Meehan fumbled for an answer as Nifong sat with his head lowered, staring at documents.

"It was just simple me trying to do the right thing and say: 'Let's not put that information out there in the public,' " he said. He admitted that he had violated his own lab's protocols, which require that results of all tests be reported in court cases.

Meehan added that he withheld some results in his final report in May "so as not to drag anyone else through the mud."

The media normally loves a cover-up - let's see if they love this.

Newsday, which competes in the NY Times area, also leads with the lab cover-up.  We await the Times coverage.  From Newsday:

DURHAM, N.C. -- Defense attorneys continued to hammer away at the Duke lacrosse rape prosecution case Friday, questioning a private lab director who acknowledged his report on DNA testing had omitted information that none of the Duke players were a match for genetic material recovered from the accuser.

The lab report, by DNA Security Inc., did not specifically note that all three accused players had been excluded as possible matches. "We were concerned about a report that would be explosive," lab director Dr. Brian Meehan testified. He said he and District Attorney Mike Nifong "agreed that it be limited in its scope." Under later questioning he said, "It was not an attempt to withhold information. ... Maybe it could have been done better."]

ABC News has coverage of the Duke debacle, and stand by with a calendar:

Dec. 15, 2006 — The alleged victim in the Duke rape case is expected to give birth in the first week of February, Durham County District Attorney Mike Nifong said in court today, adding that "the child was not the product of any activities'' from the night of the infamous Duke lacrosse team's party.

Nevertheless, attorneys for accused players Reade Seligmann, Collin Finnerty and David Evans, who took issue with the coincidental pregnancy's effect on their defense, sought and were granted permission from a judge to get a paternity test.

It has been more than nine months and three weeks since the March 14 party at which the woman said the three men raped her.

Help me out - from March 14, 2006 to Dec 15 2006 is "more than nine months and three weeks"?

Well.  As we handicap this case, the blessed event raises a new possibility - DA Nifong may move for a dismissal because his lead witness is too tied down with child care responsibilities to deal with the stress of a trial.

That may work better from a PR perspective than the notion that the accuser will simply plead stress, harassment, and intimidation and back out.  We had this hint of such a strategy in June:

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."

Let's open the floor to nominations - how will this case end?  Some ideas:

1 - The judge grants the defense motion and strikes the absurd photo IDs;

2 - Accuser cites baby, withdraws;

2A - Accuser cites intimidation, withdraws;

3 - The Justice Department intervenes - KC Johnson notes that Nifong *may* be vulnerable to a conspiracy charge:

The summary: Nifong knew there were male DNA other than that of the lacrosse players before indicting, and acted anyway--and, in technical terms, he entered into a conspiracy with [DNA Security head] Meehan to prevent this information from coming to light.

Let's catch Nifong backing and filling here:

Meehan’s testimony differed from a stateme

Comments

[cathyf]

Help me out - from March 14, 2006 to Dec 15 2006 is "more than nine months and three weeks"?

Journalist math?

(That is 39-1/2 weeks, and so a baby conceived on March 14, 2006 would be 1.5 weeks overdue by today.)

[clarice]

Actually, I think average baby gestation is 40 weeks.

Anyway, I vote for the first option..

[topsecretk9]

Under later questioning he said, "It was not an attempt to withhold information. ... Maybe it could have been done better.

Nifong strong armed me and I have a business - that does business with Nifong/Durham -- and so I did what he inferred should be done - because I have a business that would like to keep the business I do with Durham...

the latest victim.

[Terry Gain]

Nifong talks " the victim" into giving up the ghost. The case is dismissed "because the victim is so trumatized she can't testify".

Nifong breathes a deep sigh of relief but he's slapped with a lawsuit before he's finished exhaling.

[cathyf]

Actually, I think average baby gestation is 40 weeks.

"Gestation" is counted from LMP, with the assumption that ovulation is two weeks after LMP. (Not appreciating the difference has killed a few unexpectedly premature babies...)

[topsecretk9]

-March 14, 2006-

Was a tuesday, odd day to have a rager, was it easter week?

Anyway, a prenancy calculater plugging in March 14th as last date of mentrual period

Conception Occurred:
(about two weeks after last menstrual period)
Tuesday, March 28, 2006

Estimated Due Date: , , Tuesday, December 19th, 2006

On Friday, December 15th you would be 39 3/7 weeks preggers

Hmm...

Date of your last menstrual period: March 10th, 2006

Conception Occurred:
(about two weeks after last menstrual period)
Friday, March 24, 2006

Estimated Due Date: Friday, December 15th 2006, On Friday, December 15th you would be 40 weeks

According to the calculator...conception on March 14th would look like this (first babies are late - tend to be - though)

Date of your last menstrual period:
Tues. Feb. 28, 2006

Conception Occurred:
(about two weeks after last menstrual period)
March 14th, 2006

Estimated Due Date:

Dec. 5th, 2006

On Friday, December 15th you would be 41 3/7 weeks preggers

[topsecretk9]

Calculator notes:

Only 5% of women deliver their babies on their projected due date, so this date should be used as an estimate - it is not an exact calculation.

---

Sounds like she was messed up (mentally), maybe, possibly was prostituting or very, very promiscuous.

I say this not as a judgement call, but the obviousness of the situation...

she either found out she was pregnant and took the opportunity to blame the Duke guys

OR more likely

got out of her head drunk and when woke to a cop tugging her out of her fellow strippers car - thought she was in trouble (and in the back of mind knew she was preggers) and in a stupor condition cried rape to avoid the drunk tank (or what she perceived was going to happen)

[clarice]

The judge must throw out the ID--the photo array was against local law and unconstitutional.
With that out, we have only her clearly erroneous and varying descriptions of the attackers.
Without anything more and with an order barring her from id'ing them in court, there is no case.

As for a suit against Nifong, I expect that state like most has laws protecting the prosecutor from suit , making that hard to do.

OTOH as the Meehan testimony and other developments in the case come out, there may be a case for prosecuting the prosecutor/Meehan/Gottleib for obstruction of justice.
The really good news is the early admission applications to Duke are down 25% this year, and if any school deserved this punishment, it is Duke for its outrageous treatment of these guys.

[topsecretk9]

--2A - Accuser cites intimidation, withdraws--

My guess and by this becomes in a bizarre twist a victim of Nifong strong-arming!

"Look, I will only let this go if you say you are so scared to proceed...otherwise I am going forward"

My hunch is --- the girl never expected it would go this far - she either was looking for an excuse, a way out or dollar signs...never dreamed of having to testify and make it all the wild accusations real.

[topsecretk9]

--My guess and by this becomes in a bizarre twist a victim of Nifong strong-arming!--

My guess, and by this **comes in** a bizarre twist **--** a victim of

[Bob]

"It was just simple me trying to do the right thing and say: 'Let's not put that information out there in the public,' " he said. He admitted that he had violated his own lab's protocols, which require that results of all tests be reported in court cases.

Meehan added that he withheld some results in his final report in May "so as not to drag anyone else through the mud."

My guess here is that Meehan and the Lab just bought themselves a heap of trouble. But I'll let the lawyers on JOM, say whether or not this statement is a slam dunk to get them sued by the Duke Boys!

[Patton]

I would think Nifong can't be sued if he followed al appropriate laws and procedures..not if he acted with reckless disregard for those procedures and protocols he needs to be held accountable.

I don't know how anyone can still defend him...but someone will.

[Patton]

"""Meehan added that he withheld some results in his final report in May "so as not to drag anyone else through the mud."""

Who exactly could he be referring to? Nifong? If the girl had semen all over her from other men, isn't it Nifongs responsibility to find out if they were the actual rapists, regardless of her testimony
that it was Duke players.

[Jane]

Oh I think the boys have a pretty good case against the lab. I'd take it.

[Patton]

Nifong has inserted himself at least twice that we know of that he didn't belong.

Once on the police ID line up (which he screwed up) and once with the lab results.

Both times trying to make the Duke boys guilty. He needs to be removed, period.

[Kevin]

Mike Nifong pushed through a shaky, at best, accusation of rape against three white Duke students in the middle of an election campaign in hopes of consolidating the African-American vote. (Durham is roughly 45-50% African-American, and within the black community in Durham, there is long standing low key hostility directed towards Duke University and its perceived wealth and "whiteness").

Well, to all the citizens of Durham who voted for him- Congratulations! Your vote just raised your taxes for the forseeable future. When this case gets dimsissed (and it will), the three students and their families will sue the City and the DA's office, and will likely receive a substantial settlement, if only to avoid the embarassment of a civil trial that would lead off every national newscast for its duration (Greta Van Susteren would probably MOVE there).

Further, Mike Nifong's misconduct in this case is grounds for disbarment, if not worthy of a prosecution for civil rights violations. His actions have been exceedingly ugly and obvious from the start. He should be ashamed of himself.

[Patton]

Imagine if Nifong had done the exact same things and the girl had been white and there was three African American athletes.

Jessie Jackson would be on his third march through town and the media would be camped out at the rascist pig Nifongs house hoping to catch him in his KKK outfit.

[clarice]

If you want to know how truly awful the Meehan testimony was go to Professor Johnson's blog. http://durhamwonderland.blogspot.com/2006/12/nifong-and-naf.html

I see a very good case for obstruction of justice and violation of the defendants' civil rights.

(Imagine how much more outraged coverage this would get were the races of the parties switched. It's a modern Scottsborough boys case IMO.)

[SteveMG]

My guess here is that Meehan and the Lab just bought themselves a heap of trouble.

Not only in this case but all the previous ones prosecuted by Nifong using DNA evidence from that lab. If one, why many ones?

My guess is that there're a lot of attorneys with clients in jail in Durham who will be having short holidays this year.

Nifong too.

SMG

[clarice]

K.C. Johnson hints at that. This is the first time Meehan has ever been cross-examined, and the wise defense counsel simply called him to the stand without advance notice.

I again urge everyone to read his take on the cross-examination. It is clear that Meehan had no knowledge or interest in the state law,"exculpatory evidence", or the proper role of a state contract forensic lab.

[Tom Maguire]

-March 14, 2006-

Was a tuesday, odd day to have a rager, was it easter week?

IIRC, it was spring break week and the lacrosit team was on campus for practice.

[NifongTranslateLiar]

I sense a couple of retaliatory strike capabilites, my favorite of which is Obstruction, Lying, Election fixing, leading ultimately to disbarrment and financial ruin.

This Nifong character is all that is wrong today. Outrage is the least of what we should feel. Vengeful is perhaps the sweetest.

[Other Tom]

If the photo ID's are thrown out (as they surely will be), can't the accuser simply identify them from the stand during the trial? Not that such and identification would carry much weight...

[clarice]

No. The (sound) argument against that is that the tainted photo id process planted the notion in her head that these were the guys.

Then, you get to the varying descriptions she gave before the photo array:Including that one of the defendants had a moustache when the evidence is clear he never had one and the id of a guy who was never there.

And that's just for starters.

[clarice]

Here's another interesting factoid. On Greta last night it was stated that N.C. does not have transcripts of grand jury proceedings..this means that there is no way to test whether the gj had any reasonable basis for the indictment, or even to learn what the prosecutor presented to it.

Surely,Meehan's underlying findings were not.

Looks to me like the lawyers in N. C. have a lot of work cut out for them, revising their criminal proceedings.

[lawhawk]

Wait a moment on the dates. You're working from the date the article was posted, not the date that the story claims she was going to give birth, which is February 2007!

The alleged victim in the Duke rape case is expected to give birth in the first week of February, Durham County District Attorney Mike Nifong said in court today, adding that "the child was not the product of any activities'' from the night of the infamous Duke lacrosse team's party.

Work back from February, and the conception date is like the first week of May 2006 or nearly 2 months after the rape allegedly occurred.

[clarice]

Meanwhile, on Greta the family spokeman(?-She appears to be a trannie) said the accuser gave birth this week.And Greta named three other family members who confirmed that was true.

Go figure.

[topsecretk9]

--The alleged victim in the Duke rape case is expected to give birth in the first week of February, Durham County District Attorney Mike Nifong said in court today,--

Um...then that baby was born six or seven weeks early?

Premature - OK happens, but sounds like to me, someone was not being very honest about the "conception" time:

...FOX News' Greta Van Susteren said the information came after conversations with the accuser's father, mother, grandmother and aunt. The family said the woman had the baby on Thursday.

The new information came after an interview with the accuser's cousin, Jakkie, who was aware of the pregnancy but not the delivery at the time of the interview.

Jakkie told FOX News that the accuser was due for birth nine months after the Duke University lacrosse team party where the accuser alleged that she was raped....

[clarice]

Thanks TS, that is how I remembered that show.

[windansea]

They gave the accuser a morning after pill when she was examined at hospital on the night she claimed she was raped.

[ed]

Hmmm.

1. What I find absurd about Greta's show is that she keeps on bringing back that former sex crimes prosecutor Wendy what-her-name-is. And each and every single time Wendy gets pretty much the whole case wrong in her zeal to throw every man in existence into prison.

2. Doesn't North Carolina have the Open Discovery law? Isn't it the law that the prosecutor must share everything he has without any discretion on his part?

3. Am I a prude for thinking that perhaps a mother of two, this last isn't her first child, should perhaps not be having sex with 5 different men in one day?

4. It's fairly obvious that the accuser made her accusations in order to avoid getting into trouble for being high on drugs. It's also fairly obvious that afterward she continued on with this nonsense in the hopes of a big payday.

5. Other than the civil rights aspects of this case the only reason I'm continuing to follow it is to find out just how massive the lawsuits against the DA's office, DPD, Durham County and other individuals and groups is going to be.

Frankly I'd take on the most obvious targets, extract an extremely painful amount of money from them and then proceed to hammer flat every last person in Durham who defamed these guys.

[clarice]

Ed,
1. Wendy is NUTZ
2.N. Car. does have an open discovery law which you have well described.
3. The accuser reportedly told the cops she'd had no sexual relations for a week preceding the "rape".

[Patton]

""Am I a prude for thinking that perhaps a mother of two, this last isn't her first child, should perhaps not be having sex with 5 different men in one day?""

I see nothing wrong with it, as long as these were loving, caring and respectful relations. Perhaps she's just a fast dater...

[Cecil Turner]

Doesn't North Carolina have the Open Discovery law?

Apparently so, per that excellent summary by Prof Johnson that Clarice linked. He suggests the collusion between Nifong and the lab to keep the exculpatory evidence out of the report (and hence from the file the Prosecution had to provide to the Defense) amounted to a criminal civil rights violation. And I'm having a hard time seeing why he'd be wrong.

[vnjagvet]

North Carolina has a very victim friendly Deceptive Trade Practices Act:

75.1.1 Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

A practice is unfair if it is unethical or unscrupulous, and it is deceptive if it has a tendency to deceive. Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987).

§ 75-16 provides, "If any person shall be injured. . .by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person,. . .so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict.

Looks to me like based on the testimony under oath yesterday, Mr. Meehan has subjected himself and his company to significant treble damages.

The statute also provides for attorneys fees to the prevailing party if the perp refuses to settle.

My legal foundation will take that case on a contingent fee. It is worth the net worth of Meehan's company or the limits of whatever liability insurance it carries.

Clarice will help, I know. Right, Clarice?

[clarice]

Sure..the problem is that Meehan's operation seems to not be a deep pocket one.

First let's examine its assets and insurance coverage.

[Jane]

1. What I find absurd about Greta's show is that she keeps on bringing back that former sex crimes prosecutor Wendy what-her-name-is.

Wendy Murphy? If that's the one, I know her personally and she is just as obnoxious in real life.

Don't tell her I said so.

[clarice]

HEH! Obnoxious is one thing, her analyses, however, are bizarre.

[SunnyDay]

I think sometimes she and BOR go out of their way to get the most obnoxious outrageous "differening opinion" they can find. It give the program an "edge."

Then they pay them big bucks to all argue at once while the time runs out, so you feel like you've been in on a good, satisfying fight.

[Jane]

I'm not surprised, I think she only practiced law for a couple of years as an asst DA, and I don't think she made much of a mark for herself. I have to turn the channel when she gets on TV because I find her so obnoxious - in a Gloria Alred sort of way.

[TCO]

It's not up to the accuser to decide to withdraw. Rape is a felony and as with all felonies, it is prosecuted by the government. It is the government's decision as to prosecution or not. Even with a reluctant victim, the state can (and usually should) just compell testimony by subpoena. It is not up to victims to drop or press charges. One hears this confused a lot in the press and in conversations.

[clarice]

True enough, but prosecutorial discretion can only go so far--when there is no case(and there isn't one here) the charge should not have been pressed and the case once brought should be dropped. No reasonable person could on the facts find guilt.

[billy missle]

The moral of this story?
Maybe rich white boys in college should spend more time in study and less time hiring strippers. Play with fire and you get burned. Now we continue with the fine lawyering they bring upon thier head.
Legally innocent..morally bankrupt.
**************************************
I want to wish all of you here a merry christmas and a happy new year.
Billy Ray Missle

[SunnyDay]

The moral of this story

Good luck with that. ;)

[ed]

Hmmmm.

From what I understand:

1. The LAX players used to go to a strip club until the law concerning minimum age limits made it so that the youngest players could no longer go to a strip club.

2. The reason why the LAX players went to strip clubs at this particular time was both as a tradition for the team, an initiation for new players and because the LAX players would have to miss out on spring break.

3. The reason why the LAX players hired two strippers was because the entire team couldn't go to a strip club.

4. I've been in situations like this where you're expected to show up to a party you'd really rather not go. You can bet that a fairly large number of LAX players would have been far happier with a couple of kegs and the tv turned to ESPN.

5. Never understood why some men liked strip clubs. I generally prefer spending my time with women who neither view me as a walking wallet nor as a job.

6. Wendy Murphy. Yeah she's the one. Frankly comes across as extremely nutty.

7. I find it curious how so many people all over the web seem to think that justice is really only suitable when the defendent is either a minority or poor. Otherwise, and particularly when the subject is white and relatively weathly, the term "deserved" seems to crop up on a regular basis.

I know about white guilt and everything, but really now. This stuff has gone overboard. I can't help but wonder when the backlash will come when whites no longer feel any such guilt and when their eyes open to the racism that they've been subjected to.

But then again I'm asian so I can say things like that.

[ed]

Hmmm.

Just in case: the previous wasn't necessarily a response to anyone. Just general observations.

[Specter]

I think the moral is different Billy.

While I don't approve of the young men's behavior of hiring strippers, or even inappropriate comments and slurs, I will say that there would not be strippers if there was no market for such things. Just take as an example the number of strip clubs out there (including Chippendales where women watch men). There is a market and the market has "vendors" who provide the "services".

I think the true moral is that we are seeing that our legal system is in serious need of repair. That a DA can use a case like this for political gain; can hide exculpatory evidence if desired - shows that there may be a rampant problem. Also remember that one of the police investigators filed an amended report after the defense had pointed out holes in the prosecution's case - and that report attempted to fill those gaps. It shows what appears to be an active conspiracy on the part of LEA, prosecutor, and the lab. I personally think this is going on all over the country - the new breed of LEA/Prosecutor raised on "Hill Street Blues", "Law & Order", and now the infamous "Shark". And while it may not be all prosecutors, the incidence of prosecutorial misconduct is rising.

Immunity needs to be done away with. If you can't strike back at obvious immoral and unethical behavior, then the problem will never be resolved, and will likely continue to worsen.

[clarice]

I wonder when Asian Americans will stop supporting a party whose support of AA makes admission to top colleges so much harder for ASians..

[clarice]

Too many prosecutors see their positions as stepping stones to higher political office and have taken advantage of their posts to that end.

Earle: DeLay prosecution
Nifong:Duke team
Spitzer:Corporate officials
?: Arthur Anderson
Comey:Martha Stewart
Fitzgerald:Libby

[TCO]

Clarice, I was just trying to make a specific point (and I'm not a lawyer, so correct me if wrong). No need for your comment in apparent apposition.