"Drop The Charges"

Dan Abrams on the Duke lacrosse debacle last night:

[F]irst up on the docket, the Duke University rape investigation where defense sources are telling us that the 1,300 pages of material handed over to them Friday makes them that much more confident that this case is a terrible hoax, their words.

They say police reports show the accuser changed her story more than once. She initially never mentioned to the police officer who picked her up at the Kroger grocery store that she was raped, much less raped by three members of the Duke lacrosse team. And after being taken to a psychiatric hospital in Durham, the accuser reportedly changed her story saying she was raped. From there, she was bought to Duke University Hospital. And once again, the defense says she changed her story, saying she wasn`t raped.

They say this is just one of many inconsistencies in her account. Defense sources are also confirming to us that the medical report indicates that the accuser suffered no vaginal or anal tearing, just what was described as swelling in the area. Remember we reported that to you on Friday.

And there`s more.  Defense sources telling us that after the first round of DNA testing came back without a match to any members of Duke men`s lacrosse team, the accuser told police she had sex with three men the weekend before the party and that the semen from any of them could be found in her body. She even gave the police their names, one of them her boyfriend, the other two men who regularly drove her to and from her exotic dancing gigs.

"My Take" -- if all of this is true, add that to everything else we know, defense alibis, no relevant DNA when the authorities said they would find it. Photos from the party, the faulty identification process and the consistency of the young men`s stories, take all that together and I say it`s time to drop the charges.

Unless the D.A. has one or more of the players who were at the party ready to testify against the others, this case is cooked.  But the D.A. would be obligated to tell the defense if they had those witnesses. From what I`ve been told, the prosecutors don`t have that witness or witnesses at least so far. What they do have is an inconsistent account from the accuser, whose story apparently does not even jibe with that of the second stripper at the party.

Fox had a similar story.  And this case is even weaker than Dan Abrams' description - what he left out was the absence of any toxicology report showing the woman had been given a date rape drug.

UPDATE:  From Greta Van Susteren:

If the state of the prosecution's evidence is as the defense has said — or sources close to the defense — then the DA needs to step up immediately and dismiss the case.

From Thomas Sowell:

If there is a smoking gun in the Duke University rape case, it is not about the stripper who made the charges or the lacrosse players who have been accused. The smoking gun is the decision of District Attorney Michael Nifong to postpone a trial until spring 2007.

That makes no sense from either a legal or a social standpoint, whether the players are guilty or innocent. But it tells us something about District Attorney Nifong.

...What purpose does the delay serve?

...At some point, this case will have to be either prosecuted or dropped. If it is going to be prosecuted, there is no reason not to go full speed ahead right now. But if it is going to be dropped, or if Nifong knows that a judge is likely to throw it out of court, then the time at which that happens is crucial.

It was out of the question for Nifong to drop the case before the recent election, no matter how flimsy the evidence might be or how much of that evidence exonerates the accused instead of showing them to be guilty.

Even after being re-elected, the district attorney cannot let his indictment collapse in public while there is nationwide attention focussed on this case 24-7.

What will be different next year? The public will have either forgotten the case or be tired of hearing about it. The D.A. can even turn the case over to some lawyer on his staff to take into court and see it either get thrown out by the judge or fail to convince a jury.

Comments

[clarice]

Stuart Taylor had an even stronger argument. He notes that the team members were certainly pressured by their families to save themselves by turning state's evidence if they had any information supporting the claim and not a single one did.

Not only should the case be dropped, but Nifong should be subject to professional sanction.

[Gary Maxwell]

Talk about absence of evidence.

We were told by Nifong through the press ( Newsweek in this case ) that a tox report might show a date rape drug. No tox report even done.

We were told as well as the judge, that the DNa testing would conclusive show the guilty party. Except that no DNA of any player is found inside her, after two labs do testing.

We are told this is because the boys wore condoms, except that the accuser told the SANE nurse that no condoms were used and no used comdoms were located at the premises. but her fake nails were still in the wastebasket, so what they put the used condom in their pocket?)

We were told by the accuser father that a broom was used, except that the search warrants dont show the PD ever looking for a broom.

A conviction for stealing a car and driving while intoxicated ove twice the legal limit for impairment.

Plus everything that Abrams and Maguire said.

Sheesh.

[Gary Maxwell]

Yale Galanter attorney in her own words:

Oh, they`re ecstatic. I mean this was a treasure trove of defense material. And it really -- as weak as we thought Mike Nifong`s case was before he turned over this 1,300 pages, the two tapes, and the one disk scan last Thursday, today, it`s even worse than we could have ever imagined.

Look at what we have here. We know that these -- that she told the police different stories, inconsistent stories, people were in the bathroom with her. But let`s just look at what the bottom line story was that we believe Mike Nifong indicted these boys on. They forcibly raped her for 30 minutes in the bathroom.

They used no condoms at all. We now know that there are no abrasions, tears, bleeding in the vaginal area. What I`ve been told the report says, Dan, is that there was swelling only. There was tenderness in her breasts and other areas. There may have been a little redness, but the only abnormality in the vaginal cavity or the vaginal area was swelling.

We know that there was no DNA. We now know that there was no toxicology done. If these three boys actually had intercourse with this woman anally and vaginally, some of their cells would have been there, there were not...

[clarice]

Remember that when a prosecutor claims a rape specialist says there were "injuries consistent with rape"..As I understand it the nurse's testimony was based solely on the scrapes and cuts on her body which filmed evidence shows occurred before she entered the house.

Does this mean problem in some perfectly food rape cases? You bet.

But we now know that such testimony may often be largely bunkum.

[clarice]

*****Does this mean there may be a problem in some perfectly Good rape cases? You bet**********

[Javani]

Clarice, you're up on this case. How much did they pay the two, $400 each was it?

[clarice]

Don't remember that, Javani. It doesn't seem important to me.

[Javani]

"Don't remember that, Javani. It doesn't seem important to me."

You should reconsider. I read that both the women were paid $400 each.

$400 for just "stripping"? That's the going rate in a small city in North Carolina?

[clarice]

Every single member of the team says they had no sexual contact with the accuser, and there is not one bit of forensic evidence indicating they did. Moreoecver, her dance partner says she witnessed no such thing. Over all, I regard that as far more probative evidence that what the women were paid for their performance.

[Gary Maxwell]

Durham is no small city. Raleigh Durham and Chapel Hill are all one and together make up the Research triangle and support Raleigh Durham Airport which is a pretty thriving metropolis.

The accuser is almost certainly a hooker. Seems that when Nifong found no match on the first DNA but had semen presents she remembered that she had sex that weekend with three people and they are the three men who DNA was matched against the rape kit sample and voila! a match with the previousl y described "boyfriend". Two other guys are said to be her drivers and said that they drove her that weekend to 5 different motel rooms. You decide based on that if I am in error.

[Forbes]

Javani, I believe I heard it was $400 total, or $200 each. And yes that's the going rate if you need to know.

[Javani]

Clarice:

"Every single member of the team says they had no sexual contact with the accuser,"

I have heard only one guy say that exactly, for himself. Usually I hear "the real story will come out."

"and there is not one bit of forensic evidence indicating they did."

Who wouldn't wear a condom in this situation. Or they didn't finish the deed. Hooker might have supplied the condom.

"Moreoever, her dance partner says she witnessed no such thing."

By her admission she left. Even if she hadn't saying she saw it brings up the prostitution angle, which might shine on her too.

"Over all, I regard that as far more probative evidence"

I think interesting is how fast the Dukies cleared out of the house. Remember the phone call and the quick police reponse to the house? They found no one there. Lickety splitsville I suspect the boys realized it was time to run.

I suspect at minimum they were paying for a female on female sex show. The "broomstick" was too much, and the friend and victim left. The Duke boys talked the victim into coming back in, and earn her $400. Light sex acts agreed to went too far and some raped her, everyone unsure what was consented too. She started screaming, everyone skedaddled.

Her friend sensed enough it was a bad situation, and Forbes I double checked. The early artticles say $400 each.

[clarice]

You are entitled to your view, but I think it is a distinctly minority one. Defense counsel has said all the men denied they'd had sexual contact with the accuser. And every forensic analyst says even if the men used condoms there would be traces of lubricant, hair, fibers on or in her body and yet none were found.

[Charlie (Colorado)]

Javani, you've got exactly no evidence at this point except inconsistent, uncorroborated, and highly suspect statements by the complaining witness.

I'm with you that $400 each for stripping alone is high --- but even if she is a hooker, that's not evidence that she was raped (just as it's similarly not an argument that she wasn't raped.)

The evidence does suggest she had vigorous (swollen tissues) sex with three men in the period immediately previous to the rape kit test. But there's no forensic evidence of any sort that we've been told about that connects any of the Duke players with the sex.

Coming up with "well, this coulda happened, and then this coulda happened, and then this coulda happened" isn't a case, it's wishful thinking.

[ed]

Hmmm.

What I find especially curious is the police report written by the first police officer.

Evidently he felt that the accuser was *not* drunk but was only playing. This is because when he wave an ammonia capsule under her nose she only started breathing heavily instead of coming directly awake.

This might explain why there was no tox screen. Neither the nurse nor the doctor believed that she was either drunk or incapacitated.

Which throws a vastly new monkeywrench into this mess.

[paul]

One element Dan wants to (but won't):

How could tiny white penises do damage...

[Carol Herman]

Hasn't someone filed ethics charges against NiFong, yet, with his Bar?

By the way, IF condoms were used, where did they go? The garbage can should have been full of them! And, they weren't.

The women may have been paid $400 "to do it with each other?"

Of course, LaCrosse isn't exactly a reason one would go to college, is it? It doesn't pull in those who sit on the fence "deciding" if they want to go to Duke. Or not. Doesn't speak well to the school's priorities. Since many high school seniors wouldn't pick a school that's storm damaged, Tulane in New Orleans, comes to mind. OR TO DUKE! This bad publicity doesn't hang well on anyone's credential.

But college administratiors, being what they are, the college, itself should FIRE the idiots who didn't take pro-active action. And, instead dumped on their LaCrosse team. Like throwing the perverbial "sh!t" at the fan, so to speak.

Unlike Twana Brawley, when the names stuck all over Al Sharpton, for Duke, it's the white guys who've formed a circle to shoot at each other. NiFong. And, Duke's administrators. They deserve each other.

Why can't NiFong's license to practice law be taken? Disbarments don't happen often enough? Bad move for NiFong is that people are paying attention.

For the kids caught in this spiral? Big legal bills. No up side.

[Carol Herman]

The vaginal swelling? Post coital. You mean she didn't have her orgasm? Oh, well. In a civil case, after this is over, I hope the defense can sue those taxpayers who thought NiFong deserved re-election. It's gonna come from somewhere. And, it is the stuff that makes lawyers rich.

[Tom Maguire]

I think interesting is how fast the Dukies cleared out of the house. Remember the phone call and the quick police reponse to the house? They found no one there. Lickety splitsville I suspect the boys realized it was time to run.

Indeed it was - underage drinking, supplying alcohol to minors, various kids on probation, etc.

There was pretty clearly bad blood when the dancers left the other one phoned in the phony racial harrassment charge, which looks a bit trumped up in context.

[Tom Maguire]

I suspect at minimum they were paying for a female on female sex show. The "broomstick" was too much, and the friend and victim left. The Duke boys talked the victim into coming back in, and earn her $400. Light sex acts agreed to went too far and some raped her, everyone unsure what was consented too. She started screaming, everyone skedaddled.

I'm not sure how helpful speculation is, although I suppose I could offer my theory involving extraterrestials and Australian dwarfs.

But from a "reality-based" perspective - at this point, based on what has been reported, just what *evidence* might NiFong have that could justify this prosecution with some reasonable chance of a conviction?

Is this really going to be a pure she-said, they-said, complete with alibis for some of the "they"?

Maybe something evil was done and these lacrosse guys are trying to get awy with it.

Or maybe she is an opportunist hoping to get lucky with a follow-up civil suit.

But based on what has been reported, what might NiFong have? I don't see anything.

[RLS]

This whole thing looks like a 2nd grader's algebra homework - it just does not add up.

Besides everything that has been mentioned here, how did four people (allegedly struggling) fit into a single bathroom? And then manage to forcibly vaginally, anally and orally assault a (presumably) struggling woman? And not leave their or her DNA all over the bathroom?

I*nquiring minds want to know.

[clarice]

Not this one..

[ed]

Hmmm.

Here's a question. If you were a DA prosecuting a rape case what evidence could the defendant produce that would convince you that he was innocent?

Seligman had eyewitness testimony, ATM timestamped photos, receipt from the fast food place and a timestamped record of his room key being used.

If you, as a DA, excluded any and all evidence of these types then what evidence would you accept?

Frankly I don't think there is anything at this point other than perhaps being already arrested and in jail. And perhaps not even then.

Additionally what was Nifong doing when he made insinuations that perhaps a date rape drug was used? He had to have known that no tox screen was done right from the beginning.

[clarice]

A prosecutor should not bring charges in the absence of sufficient evidence in hand to persuade himself that he has a reasonable chance to prevail on the merits.The reports we are getting are from the defense and are based on the prosecution's evidence file produced under state law to them.

No reasonable person looking at the evidence coulld conclude there is a reasonable basis to think he could prevail on the merits in a rape case trial.

[Steve White]

A simple question away from the evidence, statements, etc: what rights do the defendants have, under North Carolina law, to force a speedy trial?

The Constitution guarantees one, and I understand (but certainly can't quote) various federal court rulings on this. But the states have their own constitutions and rules, so I wonder if the defendants really have to wait til spring, 2007, to get their day in court.

If I were a defendant, and assuming everything in this thread were true (no/virtually no evidence of a rape, and certainly no DNA of mine in the mix), I'd be demanding my trial start next week, and screw Mr. Nifong's political ambitions. I'd point out that justice delayed is justice denied, how I can't get on with my world-class education at Duke U, etc., while this is hanging over me, etc-etc.

That might really throw things for a loop, but Mr. Nifong may, under NC law, be entitled to schedule the trial whenever he wants. Anyone know?

[clarice]

There is no such provision in the state's law. One defendant asked for an early trial date and the judge refused it.It would take a great deal of time and money to try to get that issue resolved now and would probably not reach a final decision early enough to substantially change the trial date.

[R C Dean]

Can the defense bring a pre-trial motion to dismiss in a criminal case?

Could they ask the judge to order an immediate trial?

Does the defense just have to lay down and accept the prosecution's delay of the trial?

[Gary Maxwell]

Well here I go playing a lawyer on the internet. The only person who wants to drag this out is the dolt Prosecutor. Two of the boys want to go to school in the Fall and one wants to go on with his life and new job, likely a major distance from Duke.

At some point the Defense will, after making sure the judge is quite aware of what cards Nifong does not hold, file a motion to surpress all photo lineup identifications. Probably will have sworn affidavits of the officers involved that says, "we did not follow our regular procedures on direct order which we understood emanated directly from the DA." The judge will rule that they can not be admitted and Nifong like the jerk that his is will say the Judge has ruined his case. And years from now someone will still try to tell you they were guilty. And of course OJ is out searching for the real killers too, and they must play a lot of golf cuz that seems to be where he searches.

[PaulV]

The killer of OJ's wife and the waiter does play a lot of golf

[ed]

Hmmmm.

The judge will rule that they can not be admitted and Nifong like the jerk that his is will say the Judge has ruined his case.

A la The Ronnie Earle.

[CS]

Clarice, Nifong almost certainly believes he can prevail on the merits, and, of course, that his belief is reasonable. You know how longterm prosecutors are. The defendant almost always did it. Cleverness and fanciness are the refuges of scoundrels. Good courtroom moves trump almost anything.

More to the point, if Nifong empanels the right jury, he only has to ensure that they dislike the defendants a fraction more than they do the complainant, and they'll convict despite lack of forensic evidence and the presence of alibi evidence.

I'd say Nifong's a long way from bagging this one. The judge isn't going to dismiss. The AG isn't going to take over for purposes of dropping the charges. The state bar isn't going to discipline Nifong, for heaven's sake. The only thing that will avoid trials, in all likelihood, is if the complainant breaks and recants.

[Gary Maxwell]

Well if you are right she will be obliterated on the stand. And if I were the Defense counsel only after exhausted appeals on a change of venue would I focus on the jury composition. And then I would likely say no feminists, no university professors and no Nation of Islam members for starters.

[CS]

That's right, she'd be blown away. I was focusing on the near term. This is a patently bogus batch of cases, so the expectation here as elsewhere is that there'll be a dismissal or the equivalent before trial. Won't happen, I think, unless the complainant caves. Nifong's office has less to lose from going to trial and getting blown out than from dismissing. Plus, there's always the possibility of a reverse-OJ, under some jury-selection scenarios.

Venue change? Can't argue for that based on the inherent composition of a place. And it's unclear if anyplace in east Carolina will be untainted by media accounts by then.

Um, I don't think any of the three categories of venireman you mention can be excluded for cause. You obliquely raise a good point, that jury selection would be wild and wooly.

Yeah, they didn't do it, and yeah, it's a potential miscarriage of justice, and yeah, it sucks for them. But was the cocoon so thick and fluffy that their parents never taught them that the world bites? They know now, and I contemplate all those big checks for bonds and legal fees without too much sympathy. Let's hope that's the limit of the damage. But Justice isn't going to descend in a deus ex machina and let these guys off early. The worst part about many sh*t sandwiches is that one must eat them slowly.

[Gary Maxwell]

If I didnt know better I say CS you are enjoying watching them twist in the wind. Hope the world never bites you.

[Sue]

Could they ask the judge to order an immediate trial?

Already asked and been denied. I believe the judge said they weren't going to be getting any special treatment, the case would be treated like all the others. Or something similar.

[Gary Maxwell]

What I had read of the exchange with the judge was something like one of the defendants counsel asking for an immediate court date and saying his client wanted to attend classes in the Fall. the Judge response was I cant ensure you that. I read that different than a flat no.

I still dont know why if the Constitution says a speedy trial that it does not apply to NC. If the judge refuses him, he should ask for an immdiate appeal and keep going until someone who can read plain English hears him. Interlocutory appeal? I think. (Prof Clarice instructed previously on another matter).

[clarice]

I do not know hoe lengthy the procedures involved in an interlocutory appeal would take. It would certainly add to the costs of the defendants and may not substantially reduce the time they have to wait for a trial.

[Gary Maxwell]

Clarice any cases around that prohibit prosecution simply because they defendant was denied their constitutional right to a speedy trial? Perhaps that is what the defendants will do ask politely, wait and when it does not happen smile and say "too late". I asked and you ignored Mr Judge, sir.

[clarice]

I think the issue usually atises in the following way: Before or at the start of trial, defense moves to dismiss because he was denied his right to a speedy trial. If that motion fails, he preserves his right to raise it on appeal. And on the appeal level that the issue is resolved.

[CS]

Gary, nothing in my comment suggested enjoyment. It's as if these kids drove drunk and busted themselves up badly. Sympathy, irritation at foolishness, relief that things aren't worse, resignation to prolonged discomfort and permanent damage.

On speedy trial: as noted, NC has no speedy trial statute, so it's case-by-case under the NC and federal Constitutions. The judge's response to the request for an early trial date seems to be based in normal docket considerations. There'd have to be a showing of substantial disadvantage to the defendants or unfair advantage to the prosecution. "Disadvantage" doesn't equal "inconvenience." The Sixth Amendment isn't a prophylactic solution for a crowded docket and a jerk prosecutor, nor is it a post facto one, absent more serious harm. Besides, at this point, delay might well help the defense more than the prosecution.

Factual query: if the complainant was being driven to "engagements," where was the driver during the events in question? I've never, ever, heard of a driver not doubling as bodyguard/bouncer at parties like this. Until now, that is.

[kim]

Duke lacrosse reinstated.
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