Duke: Rape Charges Dropped, Assault And Kidnapping Remain

We are long past an abuse of prosecutorial discretion and fully into a fantasy land where DA Mike Nifong needs to present some sort of case in order to delay the day that Durham faces a civil suit and he faces disbarment.  The latest plot twist, via the Times:

DURHAM, N.C., Dec. 22 — The district attorney today dropped rape charges against three former Duke University lacrosse players, but plans to go forward with sexual assault and kidnapping charges, his office said.

Michael B. Nifong, the Durham district attorney, made the decision after learning on Thursday that the woman who complained of rape could not be sure that she had been penetrated with a penis, a distinction that would determine whether what happened to her meets the legal definition of forcible rape in North Carolina, according to court papers filed today.

When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.

Penetration with an object is considered sexual assault, not rape, officials said.

There also is no DNA evidence found on the woman from any of the accused men, investigators have said.

“With the absence of DNA and her not knowing what was going on, it’s the right thing to do and it probably makes the rest of the case stronger,” the source said.

And as new facts emerge, her story will change to accomodate them as well - Nifong has already bent the rules of space-time and decided that alibis don't matter.

KC Johnson is ballistic, as am I.  He also has some worthy Times-bashing here and here.  I especially like his guess as to why we are learning thie now as opposed to, say, last April:

The decision to accept the accuser's latest version of events has nothing [i.e., a lot] to do with the fact that it might make Nifong's decision to withhold the DNA evidence seem less pernicious.

Comments

[clarice]

I think K.C. Johnson deserves an award for his fine work.

[Thomas Morrissey]

I think K.C. Johnson deserves an award for his fine work.

Without question,and Liestoppers as well.

[Sue]

Greta had some really harsh words earlier. She told Trace that what she was saying on air was mild compared to what lawyers were saying off camera. She also made an excellent point. These young men have the means to fight the charges. How many are sitting in jail that Nifong prosecuted that didn't have the means to hire high dollar lawyers using the same tactics that are coming to light?

[Other Tom]

I am way beyond exasperation with this bullying coward. Thinking back to what little I can remember on the subject from law school, I believe there is a huge hurdle to overcome before one can get personal satisfaction through the legal process against an abusive prosecutor. I have some doubts that it can be done here, although like so many others I am hopeful.

What does give me some comfort is the fact that, much as we talk about the horrible damage to the lives and reputations of these boys, I think they will ultimately recover. Nifong, however, will not. However long he lives, the lead sentence of this bastard's obituary is going to be about what he did in this case. I'm sure he knows that, and I hope he is reminded of it daily for the rest of his life.

[clarice]

For the past ten years or so Nifong has only been prosecuting traffic cases as I recall, so it is unlikely he has done as much damage to others as he has to these defendants. That's the only good thing I can think of.

I do not know what N Carolina's statutes on prosecutorial immunity are, but perhaps he and Meehan and Gottleib are vulnerable to suit for conspiracy to deprive the defendants of their civil rights.

Of course, I want him disbarred and thrown out of office.

[anon]

The decision to accept the accuser's latest version of events has nothing [i.e., a lot] to do with the fact that it might make Nifong's decision to withhold the DNA evidence seem less pernicious.

Am I the only one who thinks that Nifong is not the passive recepient of information from the accuser, but is pretty much telling her what to say?

[Specter]

Is the defense able to bring a "taint" or "credibility" hearing? Or do they have to wait until the accuser is on the stand and make her look like a flaming liar?

[Pagar]

" Nifong, however, will not. However long he lives, the lead sentence of this bastard's obituary is going to be about what he did in this case."
If that happens, it will be a complete change from what normally happens to Democrats.
John Kerry-meets with enemies of America during wartime. Stands in front of Congress and confesses to it. Nominated to be the Democrat Presidential candidate.
Ted Kennedy- leaves a woman to drown while he goes home and sleeps it off. Reelected to the US Senate over and over. Conspires with the Communists to affect American elections.
Nobody seems to care.
Mr. Berger admits to stealing classified
documents. Rumors continue to float that he will be given back his security clearance after _ years. Probably will be given a high
government post if a Democrat is elected the
next President.
Rep. Jefferson keeps $90,000 in his Congressial freezer and is reelected.
Mayor Nagin, can't follow his own evacuation plan. No drivers for the buses,
their union won't permit it, etc. People
die because of a botched evacuation plan.
Bush is blamed, Democrats claim he should have known the drivers weren't going to show, etc. Mayor Nagin is reelected.
Democrat Senator after Senator report to Syria to find out what they are supposed to do, Or to report what they know? And of course, are welcomed back in the US with open arms.
I just can't see any serious consequences
befalling this individual based on what seems to happen to other Democrats.

[maryrose]

Why am I not surprised that the rape case got thrown out of court? If the stripper left of her own free will what's with the kidnapping chagres? Was she kidnapped to the bathroom? Where do these young men go to get their reputations back? I agree with clarice throw the bum out and disbar him. He only brought the charges to get re-elected.

[jd watson]

I predict Nifong will go all the way to trial, stretching it out as long as possible. He dropped the rape charges to avoid having his mishandling of the DNA evidence from coming up during trial. He will argue that he had a responsibility as the DA, given the charge by the victim, to pursue the case, and at least some expectation of convictions, given the testimony of the doctor and nurse who examined her and her own confused testimony. He can attribute her multiple, conflicting stories to her trauma, intoxication, mental instability, whatever -- an "inaccurate in details but still true" theory.

With some circumstantial evidence, playing the race and class cards, and a sympathetic jury, he could get a conviction. If the "victim" refuses to testify or her credibility is shredded, he can blame the loss on her. Either way, he has partially immunized himself against any charges of prosecutorial misconduct.

What he can not afford to do is drop all the charges, because the next day he and the county will be hit with civil suits and there will be pressure for an investigation by DoJ, State AG, and NC Bar. As long as the case is ongoing, there is little possibility of an investigation and none of a civil suit.

[billy missle]

Merry Christmas all..
oh wait.. I should..
Please accept with no obligation, implied or implicit, my best wishes for an environmentally conscious, socially responsible, low-stress, non-addictive, gender-neutral celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasion and/or traditions of others, or their choice not to practice religious or secular traditions at all. I also wish you a fiscally successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calendar year 2007, but not without due respect for the calendars of choice of other cultures whose contributions to society have helped make America great. Not to imply that America is necessarily greater than any other country nor the only America in the Western Hemisphere. Also, this wish is made without regard to the race, creed, color, age, physical ability, religious faith or sexual preference of the wishee.
By accepting these greetings, you are accepting the aforementioned terms as stated. This greeting is not subject to clarification or withdrawal. It is freely transferable with no alteration to the original greeting. It implies no promise by the wisher to actually implement any of the wishes for herself/himself/others, and is void where prohibited by law and is revocable at the sole discretion of the wisher. This wish is warranted to perform as expected within the usual application of good tidings for a period of one year or until the issuance of a subsequent holiday greeting, whichever comes first, and warranty is limited to replacement of this wish or issuance of a new wish at the sole discretion of the wisher

[Specter]

lol

[SunnyDay]

Hahaha!!

[Tom Maguire]

If the "victim" refuses to testify or her credibility is shredded, he can blame the loss on her. Either way, he has partially immunized himself against any charges of prosecutorial misconduct.

What he can not afford to do is drop all the charges, because the next day he and the county will be hit with civil suits and there will be pressure for an investigation by DoJ, State AG, and NC Bar. As long as the case is ongoing, there is little possibility of an investigation and none of a civil suit.

I partly disagree - I think he gets hit with the civil suits and disbarment proceedings the same day he drops the case (unless he makes the announcement at 4:59 PM).

I agree that he needs to maneuver this so that the witness is reason the case blows up.

However, I don't know how he skates past the fact that she was not credibile last April, and is still not credible.

[Krystal Gale Magnum]

Crystal Gail Mangum, who isn’t a rape victim, claimed in graphic detail that she was gang raped vaginally, orally, and anally by three men in a bathroom - medical and police evidence never supported such a claim, yet Mike Nifong rail roaded three innocent boys, destroyed their reputations, and dragged this case out for almost a year. Ms. Mangum swore under oath months ago that she was 100% sure that two of the boys raped her and 90% sure that the other one raped her. Crystal destroyed the lives of innocent boys and Mike Nifong had a great part in the propogation of this rape lie. They both deserve prison time

[Tom Maguire]

An extensive look at Nifong's situation here:

In addition, there is another basis to change venue: Durham County itself has a special interest in conviction, due to Mr. Nifong's misconduct as lead investigator as well as prosecutor

As Professor John F. Banzhaf III, Professor of Public Interest Law at George Washington University Law School, and successful orchestrator of legal actions against several major governmental figures, including former Vice President Spiro T. Agnew, noted in an email to me, the Duke case could create a major civil liability not only for Mr. Nifong, but also for Durham County.

Professor Banzhaf:

"As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney....

"Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances -- and this may well be one of them -- where that immunity doesn't apply,"..... Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District
Attorney Michael Nifong is protected from law suits....

"Generally, district attorneys -- acting within their narrow role as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and doing so wrongfully and only for political purposes, he might not be held civilly liable."

"On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an advocate performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an investigator or administrator. In such cases he enjoys only qualified immunity, and can be held liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known.

"Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an 'investigator,' entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an 'investigator' or an 'advocate,' depending on the function being performed, and thus the function being performed determines whether or not absolute immunity applies.

"For example, since only qualified immunity applies to functions such as providing legal advice to the police and cooperating in police investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity. It would also appear that granting numerous interviews with the media is outside the protected role of an advocate, especially if the information goes far beyond what is stated in court documents, and includes even name calling.

"Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability. Considering the emotional suffering -- not to mention the legal and other out-of-pocket expenses -- this criminal proceeding has subjected the defendants to, a jury could award a very significant verdict to compensate them....

"Congressman Walter Jones has called for a federal investigation to determine if Nifong's actions constituted prosecutorial misconduct and denied the students their civil rights. In his letter to the Department of Justice, he spell out allegations which could make Nifong personally liable:

'First, Mr. Nifong directed the Durham Police Department to knowingly violate suspect identification procedures for police personnel in North Carolina,' Jones continued. 'These procedures require that during any suspect identification process, a suspect’s photo must be shown with those of non-suspects. Mr. Nifong not only directed that this not be done, he also directed the police to tell the accuser that she would only view photos of Duke lacrosse athletes who were at the party. By doing so, Mr. Nifong ensured that the accuser could not make a mistake no matter who she identified because she would inevitably identify Duke athletes.' Since these actions all occurred during the initial investigatory phase, Nifong cannot claim absolute immunity...."

May Judge Osmond Smith do Durham County the favor of mitigating the damages by dismissing the Duke case as soon as possible!

[topsecretk9]

Bush is blamed, Democrats claim he should have known the drivers weren't going to show, etc. Mayor Nagin is reelected.

Democrat Senator after Senator report to Syria to find out what they are supposed to do, Or to report what they know? And of course, are welcomed back in the US with open arms.

Sounds like Tom Delay is right, the Dems just have a better PR operation....I mean if you pay Jane Hamsher enough money, she'll just keep saying, and saying, and saying...like the energizer bunny, Joe Lieberman is Satan -- it's in the "saying and saying and saying" that they pay for...and it works...well not in Hamsher's case, it failed. But she keeps --for a prominent position in the DNC- saying, and saying, and saying, Joe Lieberman is the quivalent to a chid molester, or Satan.

[topsecretk9]

It's in the disciplined "saying" -- which is scary that it works...talk about cults and Nazism. Scary Crazy, really.

[topsecretk9]

Look for Nifong to elicit more exculpatory statements from the "victim" -- hoping he can blame the whole mess on her.

[quest33]

Another problem for Nifong, is that the blacks, in particular the NAACP, are beginning to see the bad publicity this is building up for their cause.

e.g. A black girl is raped by 2 white boys. Ok, that should be a slam dunk, but now the question is raised "Is this another Durham/Nifong/Lacrosse type event?" "Is this just a political play to the black community?"

This case can cause great harm to any black female being raped by whites. The NAACP will resent this. Nifong should have gotten the facts and details straight. He could have said we are working with great diligance, and then when he got the evidence, he could present it and then make a case or not and the girl could make up her mind knowing what might happen.

Now I expect she has been blindsided by the DNA stuff coming out, and relizes it makes her look bad, and she will have to ask questions about it.
Not so good for her, for the NAACP, and of course Nifong.

Of course it hasn't been good for the three Duke students all along.

I think the two suspended ones can sue Duke University as well.

[topsecretk9]

--e.g. A black girl is raped by 2 white boys. Ok, that should be a slam dunk, but now the question is raised "Is this another Durham/Nifong/Lacrosse type event?" "Is this just a political play to the black community?"---

This is over being a racial thing, I think...I'm pretty sure, most men regardless of race weren't impressed to hear she had 5 dude's semen IN and around her.

Also...the 5 dudes DNA the Lab has...do these "anon's" have grounds yo sue the labs for data-basing their DNA - period (regardless as crime collection evidence?

[Daddy]

Professor Johnson's Blog over there at Durham in Wonderland is Exhibit A in why reliance on the MSM as a sole source of news is inadequate. A consistantly outstanding read. My guess is that absent individual efforts by such meticulous, driven bloggers, if we simply relied on "the legal system" and the MSM, this Duke LAX case would today appear far different than the glaring highlighted travesty of justice we're witnessing.
I am optimistic that some semblance of legal justice will ultimately win out in this case. I am pessimistic however, on "The Durham Street's" potential reaction to the conclusion of this case. It appears to me that Nifong and various local mouthpieces have irresponsibly allowed the Durham community's perceptions of guilt towards these priveleged white boys to be whipped up, and then fed that whipped up community expectations of a slam dunk righteous conviction. When and if that expectation is dashed, and the meme spreads around Durham, as it surely will, that it was simply guilty, rich white boys buying their way out on technicalities, that anger is going to seek an outlet. I hope I'm wrong and that we don't see Rodney King part 2 in downtown Durham, but just that I'm seriously contemplating it is another reason why I truly despise Mike Nifong's actions in this case.

[JessieJackson]

Regardless if Nifong can be sued or not, I'm still taking him off my MySpace Friends.

[Jane]

"Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability.

Liability is probably limited by statute to either 10k or 100k.

[Jane]

the Dems just have a better PR operation..

TS,

I've been saying that for a long time.

[Bob]

Merry Christmas, and Happy Hanukkah to all...

Now at the risk of being rude to all our lawyer friends here, I must say as a non-lawyer who has been involved in my own share of legal battles to know, that this is what makes the rest of us distrust (hate) lawyers and the whole legal system.

The fact that this has been allowed to go this far, shows everyone outside "the system" that it's a crap shoot at best when lawyers wield too much power. I know of no other industry that self polices itself... or at least this poorly.

And the real joke is that in order to get redress, you have to use the same corrupt system... what a total farce!

I'm not saying I have a better system, but why the Judge (presumably another lawyer from the same club) didn't close this down is terrifying. I wish the good lawyers would open their eyes and see what a joke their profession has become, and institute a system that would clean out these losers... God knows the world could afford to lose a few lawyers!

Sorry to be so negative during this very happy time of year, but this really makes me boil.

I'm done now... thanks for listening.

[Patton]

""the Dems just have a better PR operation"""

But, that relies on willing accomplices in the mainstream media. It isn't hard to see how the liberals in the press operate.

When a Republican uses a racial slur, every Republican is hounded about questions from the press. They can't go on a show, or give an interview with the entire thing turning into a bash or support the rascist republican (or whatever the issue).

This is why Republicans end up throwing their guys overboard to get the media to change the subject.

BUT, when its a Democrat, it is covered up or barely mentioned in the press.

That's why a Robert Byrd using the N-Word is perfectly acceptable to the Democrats and the media, but if done by a republican would have been the top story for weeks.

What the Republicans should be doing is calling the media personalities for their double standards, on air in front of the audience.

[boris]

Dems just have a better PR operation

But, that relies on willing accomplices in the mainstream media

And the quality of critical thinking in their audience (where ghastly postmodern nonsense rules).

[Other Tom]

Duke University has extraordinarily deep pockets, and it's looking at huge exposure. My hunch is that Nifong will not be hit personally with any civil damages, nor with prosecution. We will have to content ourselves with the fact that his repuation is shot for life. He will retire with whatever pension he has earned as a gov't. employee, and will likely live out his days as a rather reclusive fellow.

Different subject: I don't think the judge has the power to throw the case out at this point.

[Gary Maxwell]

The judge most certainly does have that power. He can enter a directed verdict of not guilty. Practically speaking he can nuke the remainder of the case by ruling the photo ids to be improperly done and excluding them and therefore also excluding her id of the boys in court. No ID no case.

[Florence Schmieg]

Bob, The journalism profession is worse. No accountability or standards whatever.

It would be wonderful if the county got sued and then had to raise taxes on the stupid people who elected this jerk.

President Bush has become the easy target to blame for anything that goes wrong anywhere in the world now, especially here. Even the Rs do it. Perhaps Nifong can figure out a way to blame his woes on Bush?!

[clarice]

Now that the area's biggest employer, Duke, is calling for Nifong's resignation and badly hurting because of its own misdeeds, I think it more likely that the judge even Banana Republic justice N Car will toss the case by pitching the I.D.

I don't know about recourse for the defendants in civil litigation, but a seek a book contract and a movie in their future..

[Daddy]

I'll opt for the movie versions. I'm interested in seeing the LAX players morph into Republican's under Michael Moore's astute direction, but Spike Lee's rendition will assuredly be another triumphant "cry from the heart" that'll take the honors at Cannes. And when Oliver Stone get's through with his version we'll probably be able to blame it on Nixon. Three thumbs up. Check it out say's JoBob.

[Uncle Bigbad]

I see Billy Missle has been visiting The People's Cube.

http://tinyurl.com/ykz6nw

[windansea]

saw this at TNH

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.”

[windansea]

the above was at TalkLeft, not TNH

commenters there think Nifong is signaling the accuser through the media

[Tom Maguire]

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.”

I don't know if Nifong needs to be signalling the accuser - this read to me like he is picking up the white towel and assessing it for tossability.

Sort of a "Gonna walk before they make me run" approach - he may try to drop the case during the Feb 5 hearing called to address the photo IDs by explaining that, now that she has seen the Duke guys live (as if for the first time), she is not so sure. And his Times interview was just a chance to lay the groundwork to some sympathetic reporters.

The benefits to Nifong - if he drops the case quickly enough the judge may never formally rule that he urged a violation of procedures with his line-up protocol. Leaving that point unresolved *may* be helpful to him down the road.

Also, by dropping the case before the judge effectively tosses it, Nifong can show that, just as has been the case all along, he has good faith and sensible discretion.

And then, the defendants lawyers take him to hell.

[windansea]

And then, the defendants lawyers take him to hell.

in the spirit of Christmas cheer..amen to that

[Jane]

OKay I have a question: It's being reported that the "North Carolina bar" has filed ethical charges against Nifong. So what does that mean? The MA Bar is made up of every lawyer who is admitted to practice. We have a MA bar association, which is an organization that you can join if you want. So does this mean officers of the North Carolina bar association got together and decided to file a complaint, which no one (probably) signed, or is there a separate entity with some clout that I don't know about?

[clarice]

Jane, I don't know. If you check out today's post at Burham in Wonderland--before this was announced, one commentator reported what he had heard was going on with the ethics complaint. Apparently Nifong was already questioned and proceedings have begun. This news account relates only to stuff charged in a March complaint--the news pressers, etc. According to the comment posted there, the bar committee has gone further into this matter.

[cboldt]

-- "So what does that mean? The MA Bar is made up of every lawyer ..." --

"The North Carolina State Bar is the state agency responsible for regulating the practice of law in North Carolina."

NC State Bar Disciplinary Actions

[clarice]

Half my posts are not getting posted.(And that after squinting to fill out the spam filter crap) I cited to The Smoking Gun which has the whole complaint and to Durham in Wonderland which says after analyzing the complaint, there is more to some.

[clarice]

**Come******