Having read through the NY Times account of their interview with DA Mike Nifong, I Boldly Predict that Mr. Nifong is planning to drop the remaining charges against the Duke Three at the Feb 5 hearing, or before. Here is the key excerpt:
Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.” And in a three-hour interview on Thursday, Mr. Nifong said he would not hesitate to drop all the charges if the accuser expressed doubt about the identity of the men she has accused when she sees all three defendants at a pretrial hearing set for February.
“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said. On the other hand, he continued, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”
...
Although the woman identified three lacrosse players as her rapists from an array of photographs, Mr. Nifong said she would get a better look at them at the pretrial hearing in February. “You can’t always tell from a photograph,” he said, adding, “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”
Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.
As KC Johnson notes, Nifong does not have any obligation at all to present the latest iteration of the accuser's story to a jury. And honestly - if she says "yes, it’s... one or two of them", how can he possibly go to trial after her conclusive ID of all three? A summary of her effort to date with the photo ID process is already crippling to her credibility. And considering how many times the photos of these three have been printed and aired, if she wavers in an identification it is because she wants to waver (or Nifong wants her too). But here is a helpful hint for the courtroom appearance - the three younger, athletic looking men at the defense table are the accused; the older folks are attorneys (Hey - unless the defense puts a few fillers at the table, or some athletic associates).
Setting that aside, the above excerpt reads to me as if Nifong chose an interview with some sympathetic Times reporters to begin laying the groundwork for his eventual surrender.
And why would he do that? There may be several small benefits to Nifong if he collapses the case on his own initiative. First, if he announces during the Feb 5 hearing that, due to newly-discovered uncertainty by the accuser, the remaining charges must be dropped, then the judge will not have to rule formally on the question of whether Mike Nifong orchestrated a photo ID process that was flawed. Keeping such a ruling out of the record may be of small help in a civil suit or disbarment proceeding.
And in a similar vein, by throwing in the case himself Nifong can argue that he has been acting in good faith and simply tried to give his witness her day in court. Again, that is not much, but a little show of belated reasonableness may look better than having the judge formally throw out the photo IDs, thereby forcing Nifong to drop the case unwillingly.
I am convinced that at this point Nifong is simply looking for a resolution that does not include his eventual disbarment and a hefty civil suit against Durham. A long excerpt about his precarious legal situation is here.
Other Bold Predictions are welcome in the comments.
COMEDY CLASSIC:
On Thursday, Mr. Nifong acknowledged knowing about those [DNA] test results before any players were indicted last spring. He also acknowledged that the results were relevant and “potentially exculpatory,” and he said he should have given the results to the defense before May 18, the day he signed a filing that said “the state is not aware of any additional material or information which may be exculpatory in nature.”
But Mr. Nifong denied the defense team’s contention that he had deliberately tried to hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he had not realized that he had failed to turn over those specific DNA test results. “That wasn’t something I was concentrating on,” he said.
Don't let the DNA results distract you, Mike! Focus on the big picture, not pesky details.
HE SHOULDA CONCENTRATED HARDER: Fron the Times follow-up on Nifong's suppression of DNA evidence, it is clear that it was not just one May 18 filing that went awry:
As Mr. Meehan and Mr. Nifong now agree, the two discussed all of DNA Security’s main findings, including those that were omitted from the final report, during two meetings in April.
Defense lawyers point to court hearings in which they repeatedly pressed Mr. Nifong to reveal all the evidence he discussed with Mr. Meehan during those two meetings.
According to transcripts of those hearings, Mr. Nifong repeatedly told Judge Smith that there was no evidence discussed during those meetings other than the test results reflected in the DNA Security summary report.
On June 22, when questioned by Brad Bannon — the discovery expert on the defense team — Mr. Nifong denied that Mr. Meehan and he had talked about anything else he had to disclose to the defense.
“The report itself they have,” Mr. Nifong told Judge Smith.
At a hearing on Sept. 22, Judge Smith asked: “So you represent there are no other statements from Dr. Meehan?”
“No other statements,” Mr. Nifong said. “No other statements made to me.”
Defense lawyers also point to a court filing Mr. Nifong signed on May 18, when he gave the defense some 1,200 pages of evidence records, including DNA Security’s 10-page report. “The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant,” Mr. Nifong said in the filing. “Should we learn of the existence of any such material or information in the exercise of due diligence, we will notify the defendant.”
Mr. Nifong acknowledged in the interview this week that he was keenly aware of the test results Mr. Meehan had omitted from his report when he signed that court filing on May 18.
He denied, though, any effort to hide the results or delay their release. He has long been known locally for giving defense lawyers open access to his evidence, even before a state law required that. And, he said, even if the test results should have been turned over months earlier, the defense still had the evidence well in advance of any trial date — which had not yet been set.
“So it’s not like this is something we discover on the fourth day of a five-day trial and say, ‘Oh, by the way,’ ” he said. “I mean, that’s not what’s going on.”
Lest there be any doubt, the defense attorneys are getting ready to switch over to offense:
Trial judges in North Carolina have broad authority to impose sanctions when prosecutors violate discovery rules. The state’s criminal discovery law requires prosecutors to share test results, regardless of whether they were delivered in writing or orally. Likewise, the North Carolina State Bar puts the onus on prosecutors to “make timely disclosure” of evidence that “tends to negate the guilt of the accused.”
If these rules are violated, the judge can dismiss charges or hold lawyers in contempt. In extreme cases, North Carolina law allows a judge to remove a district attorney from office for “willful misconduct.”
But the severity of the sanction often turns on whether the error was innocent sloppiness or a deliberate attempt to conceal evidence.
Mr. Nifong insists it was innocent, but defense lawyers are scouring transcripts of hearings and other records to build a case that Mr. Nifong’s error was in fact a calculated strategy to withhold or at least greatly delay the release of crucial evidence. Joseph B. Cheshire of Raleigh, a lawyer for one of the players, said he intended to take “specific legal steps” to seek sanctions or Mr. Nifong’s removal from the case.
Nifong is going down - the question is, how far?
You've got one: the Massachusetts Board of Bar Overseers.
Walter,
Oh I know all about the BBO, I pay my dues religiously every year. But we also have the MBA, which is what the NC Bar sounded like. That' a voluntary association. The BBO (from what I know) is just a handful of lawyers, some hired, some appointed who are supposed to answer ethical queries (I've never known them to actually come up with an answer) and who preside over cases brought before them.
OTOH The MBA which is the sister org of the ABA is more of an educational and social group. We also have MATA (MA Academy of trial attorneys). Typically defense lawyers, and non-trial lawyers belong to the MBA, and the plaintiff bar inhabits MATA.
And let's not talk about New York, where the Supreme Judicial Court can be over-ruled by a mere court of appeal....
Oh I know, and that may be the reason that every NY lawyer I ever met had a huge bark and no bite.
Posted by: Jane | December 30, 2006 at 08:41 AM
SAM another grim milestone
Posted by: PeterUK | December 30, 2006 at 08:44 AM
Jane-
I'm sorry I didn't respond sooner (and this is going to be soooo worth waiting for):
I think the charges would have been brought if they were poor, and the defendants would probably have copped a plea by now - unless of course you make the case that Nifong would have actually paid attention to how un-credible the victim is if the defendants were poor. I doubt that for some reason.
[snip]
The real issue concerning, Nifong, Earle and Fitzgerald seems to boil down to the fact that they all seem to be putting politics in front of justice.
But that's just it. Without the rich lacrosse players, the political situation just isn't there for Nifong. We can go back to the previous accusation of being raped by three men that this very accuser made...they were poor and the charges went nowhere.
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As for the second sentence, I do think other prosecutors say the kinds of stuff that the complaint outlines. I just don't think it gets highlighted in the same way, because that takes attention and money. And yeah it's wrong, but defense lawyers says a lot of stuff too. We don't have a gag order on trials the way that Canada does. And everyone spins.
Perhaps for what the complaint outlines, that is true. I think his overall behavior brought about the complaint though, his words are just a small part of his aggregious behavior, but maybe the easiest part on which to take action.
Posted by: MayBee | December 30, 2006 at 09:06 PM