The Duke Line Up

Details have emerged about the photo line-up procedure used by DA Mike Nifong in the Duke lacrosse debacle:

To obtain the identification, Durham police showed the woman photos of the 46 lacrosse team members one at a time, sources said. The woman said she was 100 percent certain that Finnerty and Seligmann were involved and 90 percent certain that a third player was involved.

...No other photos were shown to the woman, sources said, and the defense attorneys maintain that police should have included photos of other young, white men in the photo array to make the identifications legitimate.

...U.S. Department of Justice guidelines on using photo identifications call for using a photo array that includes only one suspect and at least five "fillers," or other people who generally fit the witness' description of the perpetrator, for each array.

Defense attorneys also noted that two people at the party who aren't on the lacrosse team weren't included in the photos shown to the woman. Those two people also have never submitted DNA samples to authorities for testing, attorneys said.

Jeralyn Merritt checked North Carolina guidelines, and reminds us that, although the DA did not follow the state guidelines either, that is not illegal or automatic grounds for suppression.

However, it is grounds for marveling at the weakness of this case.  With the procedures employed, anyone could have picked out three lacrosse players.  Blindfolded.

Well - I don't know what happened that night, but this DA is not helping me to find out.  My current prediction is unchanged - Nifong tries to keep a straight face about this until his May 2 primary, then the wheels fall off.

MORE:  From the AP:

On Friday, Robert Ekstrand, an attorney for dozens of the uncharged lacrosse players, said authorities have given the defense team a copy of the police report on the photo identifications made by the accuser. Ekstrand said according to the report, the accuser was shown photos of 46 lacrosse players and was told by police that all were believed to be at the party.

Ekstrand said the police should have included photos of people not linked to the case.

''There weren't any dummies in there,'' Ekstrand said. ''There weren't elements to test her, like someone known not to be near the party or involved.''

Nifong's office said Friday the prosecutor, as he has for several weeks, would not comment on the case.

Comments

[windansea]

essentially they gave her a dartboard

[Lew Clark]

That's what I wondered from the start. Did they have her pick out her "assailants" from a mixed group which included "non-suspects" or did they show her only pictures of the team and say "Close your eyes and pick three".
And what about racial profiling. The most serious crime police can commit. Why were there no Black or Asian men's pictures?

[Lew Clark]

Or women's pictures! Sexist bastards!

[patch]

"Nifong's office said Friday the prosecutor, as he has for several weeks, would not comment on the case."

I wouldn't either, at least until May 3rd...

[JJ]

There is an aspect of this case that is as old as that the flick Breaking Away.

Durham is split identity town: townies and rich college types who live in the big school that tobacco money founded.

None of the first half trusts the theater that is the judicial system. The chance of getting justice is 5% of the time. Nifong, in his defense, has got to convince the larger community that cares about their interests.

But....

[Thought]

I agree...this DA has blown this case...he has been grossly incompetent, but will try to pretend he has a credible case and drag this out until after the election. He hopes that once the election is over, then he can let the case implode in his face.

I sure hope whoever is running against him does a good job of playing up his gross incompetence in this case...

[epphan]

...And to be fair. If the woman was assulted...say by others at the party...the DA has done her a great injustice by screwing it all up.

[TM]

And to be fair. If the woman was assulted...say by others at the party...the DA has done her a great injustice by screwing it all up.

mega-dittoes.

[Sue]

It was only white men because she said it was 3 white men. Why throw in a black man or a chinese man? But they should have thrown in white men not at the party.

[MaDr]

Let's see if I've got this right. Jeralyn Merritt would usually be telling us that not following "guidelines" would be grounds for immediate dismal of the charges, is now advocating a different position/interpretation. So what's different/changed? May God bless and have mercy on the inconsistent, liberally biased members of our legal (no longer "jusice") establishment.

[richard mcenroe]

Why not just throw in a few sets of quints and triplets to make it easier for her?

[CS]

MaDr: Merritt's just pointing out that NC has a new set of guidelines for best practices in photo lineups, but that they haven't been incorporated into caselaw or statute. Thus, a failure to follow the guidelines in some regard would weaken the IDs, but likely not be grounds to exclude them if case/statutory standards were met. Incidentally, it sounds as though the DPD followed at least some of the guidelines: sequential viewing, asking degree of certainty, etc.

[Patton]

"""It was only white men because she said it was 3 white men. Why throw in a black man or a chinese man?"""

Who's to say? Did you see the serious on the head of Black Studies at Harvard on PBS. He was all about Reparations and he did a big study to find his and other blacks roots in Africa.

It turned out this African-American head of Black Studies at Harvard was MOSTLY WHITE and of Northern European ancestry.

If you showed her pictures of 5 men, two blacks, two asians and a white guy who wasn't at the party. It would be interesting to see if she picked the white guy as a suspect.

But that's the kind of thing real, actual, competent investigators would do..so its not about to happen here.

[TM]

Jeralyn Merritt would usually be telling us that not following "guidelines" would be grounds for immediate dismal of the charges, is now advocating a different position/interpretation.

I dispute that, but I am not going to sit here trying to prove a negayive. Any examples?

[Bob in Pacifica]

NYT has a timeline here:

http://www.nytimes.com/2006/04/23/sports/sportsspecial1/23duke.html?pagewanted=2&ei=5094&en=dc9335778d1046dc&hp&ex=1145764800&partner=homepage

I have a couple of questions about their times, but it's good enough to save for future reference.

It says that the police drove her to the hospital around 2:30, which would have been an hour after they arrived at Kroger's to pull her out of Roberts' car. I wonder where the "boyfriend" story came from.

According to the transcripts from when she was identifying her assaulters, the AV said that Seligmann was the man who forced her to perform oral sex on him. That would suggest she would have gotten a good view of his face. And yet he seems to have an alibi from about 12:14 on. If the women dance until 12:04, then leave the premises and then come back, if they'd been gone for just five minutes that give Seligmann five minutes to wrestle her into the bathroom, have his way with the AV, and then leave and calmly call the cab. That's a pretty tight schedule.

There were supposedly 41 players at the party, according to a team captain, and Seligmann was not included on the list of 41 the captain provided to the police. His exclusion might mean that other players were trying to protect him, or it might mean that the captain hadn't seen him, or the captain gave a list of people who were there when the dancers were, and there apparently wasn't much of an overlap with Seligmann's timeline.

+++

Agree with CS on the ID procedures. The DA opened himself up to further attacks on the credibility of the case by not including fillers, but did not do anything fatal enough to get the identification excluded.

I think being so intoxicated at during the time she was there is seriously going to weaken her credibility in identifying anyone. Presumably the fact that the DA had to have her identify pictures of her assailants suggests the photographer at the party didn't snap any pictures of the alleged rape.

[Bob in Pacifica]

This story:

http://edition.cnn.com/2006/LAW/04/20/duke.rape/index.html/

says the DA believes the alleged rape occurred after 12:30, when the dancers came back into the house.

Seligmann was long gone, having gotten the cab ride, gone to the ATM and was on his way to get some food.

If she is positive that Seligmann did it, and the DA is positive it happened after 12:30, where is the case?

+++

I imagine the DA would think it likely for the rape to have occurred right before the women leave at the end of their evening there. It seems unlikely that a woman who was brutally gangraped would leave the premises and then return.

+++

From the number of times the strippers went into and came out of the house, it seems like good neighbor Bissey got more of a show than the people inside.

[maryrose]

I hope fairness prevails for all persons involved in this awful situation. There are no winners here and the damage done to these individuals and their futures is great.

[ed]

Hmmmm.

Merritt's just pointing out that NC has a new set of guidelines for best practices in photo lineups, but that they haven't been incorporated into caselaw or statute.

Actually the US Supreme Court has already ruled a number of times on the matter of photo lineups. And, to my knowledge, the rulings require that there is *nothing* allowed that can excessively distinguish the accused.

Having a photo lineup consisting of *nothing* but potential defendants is explicitly in violation of US Supreme Court rulings on this, regardless of any NC statutes.

[kim]

I suppose it is generally understood by a victim that she is being shown pictures of suspects. If she is shown pictures of a class(numbering 47 in this case) that she is convinced contained the perpetrators, then it would be irrational not to pick three. What jury could be convinced to buy this identification?
==================================

[larwyn]

The Way We Were: Remembering the Real Nature of Journalism

AS THE WEEK of history's shabbiest Pulitzers mercifully fades from memory, let us pause to learn that the problem with journalism, like the problem with the United States itself, is that both are now and evidently will remain exactly one drink behind.

Behold the words of those who would know:

"A journalist is a reporter out of a job." -- Mark Twain
================================

You'll want to earmark Gerard's complete collection

Acknowledge double posting the link - but Press is major player in both threads.

[Hit The Bid]

Many of you here on this blog know me as the libera;, but I don't believe the story of the "victim" or that the DA has done much of anything right.

But, I was wondering if we had a toxicology report yet on the accuser(better term than always writing victim in quotes)? Was she just hammered that night? 'cause if she was wasted, I'm inclined to sweep that last little bit of doubt of the entire premise of rape right out the window/door.

[MaDr]

TM

I've seen Merritt on numerous talk shows strutting her stuff. Unfortunately I don't remember which shows and what dates, but even if I did, I wouldn't know how to obtain the transcripts. Here's a few of her views on police line ups and eye witness accounts, so make of them what you will.

http://www.courttv.com/talk/chat_transcripts/merritt.html

http://www.truthinjustice.org/lawstory.htm

http://talkleft.com/new_archives/008004.html

[Bob in Pacifica]

Hit the Bid, I have asked the same question myself. I've been told that a blood test is not a part of a rape kit.

However, if someone shows up at a hospital claiming that she was gangraped and having trouble standing or even telling her co-stripper where she lived, I would think that the question of whether or not she'd been given a rufie must have entered someone's mind.

So a couple of questions:

1.) Did anyone ask her how she became intoxicated?

2.) Did she claim to have been drugged?

3.) Did anyone ask her to take a blood test for proof of drugging?

4.) Did she comply?

If she was as loaded as she appeared to be, it would be hard for the nurse at the hospital not to have noticed her condition. Nurses trained to handle possible rape cases must have some observational training about the patients, so she must have noticed how intoxicated she was.

So if someone asked her, what was her response?

My guess is that there were no tests done, or that she never claimed to have been drugged. Otherwise, we would have seen that as part of the charges.

This raises an interesting point. The other stripper claimed that the AV (alleged victim) wasn't acting strangely when they arrived. If it turns out that the AV was drunk before she got there, that goes further to discredit the second stripper.

Right now, I await the evidence from the rape examination and whatever else the DA may have, because right now there doesn't seem to be much of a case what with the apparent misidentification of Seligmann.

[wickedpinto]

Yeah it's a line up consisting of "more right, or exactly right"

Thats silly.

"Yes he raped me!!" she says, and the prosecutor says "HE'S A LACROSS PLAYER!!! who'dathunk?"

It was a wrong lineup.

The friggen prosecutor should be executed himself for killing the lives of at least 2 young men, who will be acquitted, and for abusing a woman who might have been a victim.

She MIGHT have been raped, but the pros, FORCED her to pick a lacross player.

and the lacross players MIGHT be innocent, but their lives are destroyed.

This is BULLSHIT!!!

[steve]

anyone catch the interview with the second stripper? she refers to finnerty as the "little skinny guy". he may be skinny, but he is 6' 3". any chance she id'ed the wrong guy?

[cfw]

Too bad the photographers did not use the video functions on their cameras. Note to self: learn (again) how to use the cell phone camera and the video function on the digital camera.

Nurse and MD probably assumed that ID would be conceded and consent disputed. No doubt the Duke MD and nurse spoke to DA or police about whether to check the blood of AV. If blood was not taken, I would be shocked if that was a decision made without input (written or not) from AV and police or DA.

AV may have said "let's not test" if she knew she had illegal drugs in her system (that she put there). Was she on probation then? She could have been concerned about a violation of probation or parole terms. If DA and AV do not plan a "she was unconscious and unable to consent" approach, why cloud the ID and non-consent testimony with blood tests showing alcohol or valium or what have you in the system?

Anyone doubt she may have voluntarily ingested a few illegal substances in the last few years? Even evidence of marijuana in the blood might have been a violation of terms.

[ed]

Hmmm.

I've been thinking about this some.

Is there actually anything that proves that any of the players had a digital camera and not a digital video camera? Keep in mind that you can isolate still pictures from a digital video.

I think what is going to come out is that the players had a digital video camera running during this entire mess. Whether or not that'll prove anything remains to be seen.

[ed]

Hmmmm.

Let me put it this way. There are very few things that would make a defense lawyer confident about a case other than video. And these defense lawyers are extremely confident of winning the case. A confidence that would normally not be present because many rape cases are, aside from any forensic data, a case of competing eye-witness accounts.

But video tape trumps them all so I do think that there was a video camera running. It's also very likely that someone wanted to make a tape of the strippers and the party.

[LARWYN]

ed,
Hope you are correct and that they bring it out before this jerk DA gets reelected.

If a rape did not take place he is a disgrace to the Justice system.

If a rape TOOK PLACE he is a disgrace to the Justice system.

He cannot be allowed to continue as a DA representing the people.

[cfw]

ed -

Video can of course be defused - recall DeLorean. Soundtrack is what is missing now. What was being said as AV came out of house, etc.

I suspect the police officer who visited the house after the 911 call did not do more than a drive-by. Looks like house was not empty, according to taxi driver.

larwyn -

I agree that DA Nifong needs to be voted out. That would not end the case - just bring in a fresh DA. And this DA stays on the case until after the general election, which is after May 2.

What could Nifong do to restore confidence - get judge to set a date for venue motions, motions to suppress? Offer immediate trial, with full disclosure now of all DA and police evidence (and reciprocal defense obligations to disclose their evidence)?

He needs to appear fair (and be fair) to both sides, of course. Setting a trial date could get both sides serious about disposing of the case - say by dismissal with agreement not to discuss, and not to have any mal pros lawsuits.

Maybe Duke needs to learn to act more effectvely as a political force in Durham City and County politics. Political apathy (preferring preparation for exams) is understandable, but has costs.

[CS]

cfw, the best and most lasting way to increase fairness, both in this case and in term's of Duke's posture, is for it to grind on out. People learn from disasters, and not much else. Fortunately, it seems so far that in the process, justice likely will be done with respect to the defendants.

I'm sympathetic to anyone unjustly accused. We all know, though, that bad stuff happens to people all the time. Sometimes young males make risky mistakes that create disproportionate disasters. Sometimes it's just bad luck. The good fairy didn't sprinkle magic dust on Seligmann or Finnerty and promise nothing bad would ever happen. They're just amazingly lucky that they both seem to have decided to get some food at just the right time.

Sorry for the truisms. Must be some Sunday-morning sermonizing instinct.

[Bob in Pacifica]

I saw comments from Nifong over at Talkleft (stop hissing) about the possibility of a date rape drug. The problem is that if there was a belief by anyone, police or hospital staff, that she had been drugged, then someone would have asked her to take a test. Her refusal to take a test would prove that she got that way on her own. If they took a test and found some kind of tranquilizer or narcotic she used to self-medicate, well, now you've really got problems with your primary witness.

So what is it? If there were tests, why is Nifong holding back? Why no charges about drugging her? If there tests, he can't hold them back. If there were no tests, then why not? You've got a woman who comes into the hospital complaining she was raped who can't walk from intoxication.

Something very hinky about this.

[CS]

If Nifong had a positive date-rape drug screen, he wouldn't have to share it yet, except with the complainant. It wouldn't fall under the nontestimonial evidence statute with respect to the defendants. Nothing until discovery.

Nifong's announcing a positive drug screen right now might cut both ways. He'd make it look more likely that a rape actually occurred, but at the expense of admitting that the ID witness was impaired. If there was a drug screen, his best bet might be to hope the results get lost in the mail until trial.

Although...if the alibis start looking really good, maybe Nifong's play would be to announce a positive test, express sympathy for the complainant, and really start interrogating the team members in hopes of alternative IDs. You'd end up at trial with the prosecutor downplaying his own complainant IDs and the defense trying to emphasize them.

Refresh my recollection: what time did the SANE exam take place?

[larwyn]

Story of accusers' taxi ride.

Owner of a strip joint tells FOX:

A came to his club to audition.

After she danced she went into dressing room where she was found
"collapsed under a table"

"She was asked to leave and said she had NO RIDE"

"cab was called......when driver arrived he went to use the bathroom.....that is when she took his keys....left with the taxi"

Hmmmmmmm, adds to why they don't want anyone to know about drug tests.

[cfw]

CS -

I would not be lobbying for action against Nifong except that he is up for election.

I would suggest all Duke students at least send out notes to their Duke friends on the Facebook reminding them to vote on May 2. No need for more than that.

Brodhead might also send out an email to the students, faculty and staff politiely suggesting that all folks employed by Duke, or residing at Duke, should vote on May 2 (without telling them how to vote).

Then, maybe some aspiring Duke poli sci students should (as a research project) do exit surveys to estimate how many folks from Duke voted, and what % of those folks voted for or against Nifong.

Once Duke folks make clear that they will vote, and they care about local political affairs, Duke becomes a bit more of a player in the Durham political system. Though the county may have over 1 million residents, the city council, police and DA would likely take notice if Duke became a bit more politically active.

That said, I agree the lax players can and must "grind it out" and hopefuly learn something.

"The good fairy didn't sprinkle magic dust on Seligmann or Finnerty and promise nothing bad would ever happen. They're just amazingly lucky that they both seem to have decided to get some food at just the right time."

True, a bit like getting struck by lightning. Hopefully they can get notes and do their exams off campus. Save their parents $20,000 each for a semester of tuition.

[Gary Maxwell]

I think the County Duke resides in ( Durham County I think has about 290K in population. If half are registered voters and about 15% turn out for a midyear municipal type election that means around 22k votes cast. 5k of students and more workers could have an impact although some will vote already. But dont forget that guilty white liberal professors may be the target of Nifongs pandering just as much as the black population.

[cathyf]

Many of those students are registered to vote at their parents' address. So suggesting that they vote in Durham, too, is asking them to commit a crime. It's just so, well, like, ya know, Democratic to do so!

cathy :-)

[cheap Entropiauniverse ped]

I like to search on Internet to find where to buy cheap Entropiauniverse ped.

[LOTRO Gold]

When you have LOTRO Gold, you can get more!