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?
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