The NYT reports: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.
But kidnapping and sexual assault charges remain.
A week ago, a laboratory director admitted in court that in the wake of an agreement with Mr. Nifong, he had violated his own procedures and withheld results showing that none of the lacrosse players’ DNA had been found on or in the accuser’s body.
“This comes a week after it was shown they intentionally withheld exculpatory evidence on DNA tests,” [defense lawyer Joseph B.] Chesire said. “That begs the question of the extreme coincidence of the timing in which these two things occurred.”
That does look terribly suspicious.
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26 comments:
Now Nifong can avoid any discussion of the dna evidence before the jury. Not a bad tactical decision?
MikeinAppalachia said..."Now Nifong can avoid any discussion of the dna evidence before the jury. Not a bad tactical decision?"
I think the defense should be able to bring out this information. For one thing, they'll be able to cross examine the witness with her inconsistent statements, and I think the fact that the charge was dropped after the dna evidence came out is relevant to the credibility of the witness.
If the students are eventually found not guilty, or all charges dropped, I'm wondering if they will be able to sue the university for its conduct, and, all the professors (individually) who signed the inflammatory (and defamatory?) public statements about their supposed crimes before the facts were known.
I think the reason the two charges remain is so that the prosecutor will have something to bargain with in exchange for the defendants' promise not to take action against him.
The case is over.
Nifong is toast.
Duke has injured its reputation.
Some young men are forever scarred.
A young woman (or two) was lying, and will not pay for the damage she caused.
The Duke professors who jumped in early and demanded conviction suffered no consequences.
The only ones to benefit were parents who got to see up close what the faculty thought of their student body, white and black, and how quickly they were willing to abandon their ethics (and these young men) in search of truthiness. Duke has experienced a 20% decline in early applications.
But since they're all just a buncha white shitbags (the current Washington State University description of Caucasian students), in the end, what's a few young lives trampled on, anyway? At least they weren't minority students, or gay, or immigrants. Because, man, now that would've meant something.
"The case is over"
Unfortunately it isn't. As long as the assault and kidnapping charges remain, the students' families will have to keep on paying their lawyers, the students remain subject to the restrictions of their bail bonds, and the students' future prospects are clouded to say the least.
That said, the state's evidence is so compromised it's hard to believe that any competent trial judge wouldn't grant an instructed verdict of acquittal. Nifong must be hoping for some kind of deal in which the students plead to some lesser charge just substantial enough to bar them from filing a malicious prosecution lawsuit.
I meant only this:
it's all over but the shoutin'
The thing is that the DNA will STILL come in. Unless they only go with he said - she said, they will include the rape exam, evidence of edema, etc. Then there's the claim of "no sex partners in last week".
Bingo DNA.
Then there's the very, very many stories. The ID.
The families WILL NOT SETTLE. They have testimony that the DA conspired to violate their civil rights, and there is a prima facie case that this conspiracy not only included the DNA tech but also the detective who wrote the "from memory" memo weeks after the fact that was swallowed whole by the NYT (though contradicted by actual contemporaenous notes from other investigators).
While Nifong is protected from a basic malpractice suit in state court, the Federal civil suit for violating civil rights of the defendants strips him of his state level immunity. Durham, the individual investigators/conspirators, Duke professors, and the Duke administration are all facing substantial judgements (though Broadhead is in the process of bailing furiously with today's comments).
I've been watching the case off and on. a couple of comments:
1. Ann's "Paper of Record" has been a yellow rag of journalism on this. The reporter who wrote this article is a biased dirtbag. He says for instance that:
A week ago, a laboratory director admitted in court that in the wake of an agreement with Mr. Nifong, he had violated his own procedures and withheld results showing that none of the lacrosse players’ DNA had been found on or in the accuser’s body.
what he doesn't bother to say is that:
a. The alleged victim claimed that she was penetrated and ejaculated in by the 3 rapists, and had only 1 sexual encounter with her boyfriend one week prior. However the DNA Lab found evidence of the DNA of 5 unidentified males on her panties and rectal swabs. This DNA did NOT match the BF or ANY of the LAX Team.
that is a pretty big omission.
2. and OBTW, the DA KNEW that there was no LAX DNA in the alleged victim BEFORE he indicted them. So, if the victim was telling the truth in her statement, there are 5 rapists loose in Durham while the LAX players are on trial.
3. The DA has NEVER spoken to the alleged victim about the incident and apparently the police for the last 8 months never questioned her about the DNA of the 5 guys.
criminal yes, but whose crime?
Susan Estrich had a great article on Monday about the DNA results conspiracy. She orginally thought the DA was doing good. not anymore
http://www.foxnews.com/story/0,2933,237084,00.html
the lead of it is wonderful.
This is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.
Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.
Prosecutors aren’t just one side in a battle.
You can’t come across the smoking gun covered with fingerprints on it – come across it because you have the power of the state to collect all the evidence – and then decide to ignore it because they don’t match the fingerprints of the guy you’re prosecuting for the crime. You certainly can’t file the report from the lab for your eyes only.
You have to tell the defendant that the smoking gun has someone else’s prints on it. He has a right to know that, and the prosecutor has a duty to tell him.
There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.
The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.
The best single source for Duke LAX info is:
Durham-in-Wonderland
a blog by Prof KC Johnson
http://durhamwonderland.blogspot.com/
the NYT is nearly the worst source for info.
The next logical step in this case would seem to be "if this can happen to a couple of wealthy prep-school white kids, I wonder what the justice system can do to a couple of poor, black kids without expensive attorney's and the excessive media exposure from Fox News and CNN." But I'm sure on this blog that I'm about the only one willing to take that skip and step.
DING DING DING DING DING!
We have a wiener!!!
Your prize will be your comment deleted by the blithering idiot running this thing...
dave,
I know in your delusional state, analytical thinking is a chore, but there is a big difference between your inane blather and dklittl's post. I happen to agree with him at some level, but regardless, he is expressing a rational thought in a civilized fashion, I'm certain that most of the rest of us agree at least about his tone. Your posts on the other hand seem filled with anger.
Nifong belongs in prison for the DNA coverup, as does any other prosecutor who violates the law in an attempt to hide exculpatory evidence. It's overdue for the Justice Department to announce a criminal investigation into that slimeball's conduct.
When Nifong's doing time in Club Fed, he'll serve as an excellent example and warning to other prosecutors tempted to do the same thing.
The NYT this morning finally brought itself to print an article that fully describes Nifong's misconduct. In particular, the NYT reveals that on May 18 Nifong signed off on a disclosure statement certifying that he had given the defense any exculpatory evidence of which he had knowledge. Nifong now claims he had forgotten the exculpatory DNA evidence when he signed the statement. It's simply unbelievable that the DA could forget something so basic to his case. A Brady violation of this magnitude will surely be enough to support state bar disciplinary proceedings against Nifong.
Nifong's handling of the case is hard to understand. Surely he must have expected that with all the media attention, he couldn't afford to be this clumsy.
"...I'm sure on this blog that I'm about the only one willing to take that skip and step."
You do realize you parody yourself, right? "My God! I'm so effin' ...(sob)... brave!!"
The next logical step in this case would seem to be "if this can happen to a couple of wealthy prep-school white kids, I wonder what the justice system can do to a couple of poor, black kids without expensive attorney's and the excessive media exposure from Fox News and CNN." But I'm sure on this blog that I'm about the only one willing to take that skip and step.
Well then, you would be wrong. My guess is that Nifong thought he could get away with this because the Durham DA's office and police department are accustomed to using these sorts of tactics to secure convictions. If the media, civil rights activists, and Duke's administration and faculty were really interested in stopping out of control DAs from abusing their power in order to secure convictions against poor black defendants then perhaps they should be using this case as a catalyst to bring about change to the system instead of a chance to demagogue for "social justice”; social justice, in this case, meaning revenge.
I'll be accepting my abject apology from Dahlia Lithwick now.
***waiting***
***taps foot***
***checks watch****
***wanders off***
I'll be accepting my abject apology from Dahlia Lithwick now.
Good luck with that! One thing most of the MSM and most of the blogosphere definitely have in common:
Never apologize. Ever. Never admit being wrong. And never, never, never let facts get in the way. They are such incovenient things, to paraphrase Churchill. 100% righteous certitude can only be furthered by 100% obstinance.
While I agree somewhat with past comments like Christy's that have focused on that fact "that poor black defendants are at a disadvantage in the justice system", I should mention the converse. Wealthier people are able to buy better lawyers but if Nifong had tried to prosecute poor or even wealthy black students with accomplished athletic and academic records, the whole country would be outraged and he would have been forced out of his job.
While wealthier white kids may have a better chance of defending themselves in this type of case, poorer black kids have a better chance of never being charged.
This whole case has been outrage. Either the Duke players have the best pr. reps. and lawyers in the world, or Nifong has completely abused his discretion as a prosecutor for political gain. I suspect it is the latter and not the former. The players, even when likely found innocent, have already had their names completely tarnished and their careers disrupted by awful DA, a lying alleged victim, and a school that bent over backwards not to defend their own students and initially presumed they were guilty.
This comment is right on and is comming from a University of Maryland Professor.
""Spokesman Jason Trumpbour, a 1991 Duke law school graduate who lives in Parkton, Md., seems to have sparked a response from Duke administrators with his rant.
"The administration's silence about Mr. Nifong's continued assault on the civil liberties of Duke students appears to be having an unfortunate, if inevitable, effect," Trumpbour said in the group's statement, citing a 20 percent drop in early admissions applications. "Surely any prospective parent would have to think twice about sending a son or daughter to an institution whose leadership has stood aside as a local prosecutor targets students through procedurally improper actions.""
Seven, dk:
The work of fiction this case most resembles isn't To Kill a Mockingbird, it's Bonfire of the Vanities.
In Bonfire, Tom Wolfe portrays a white Bronx DA demagoguing the voters of his majority-minority district by railroading a privileged, arrogant but innocent white defendant.
Trim away the Wolfean excesses and it could be a desription of Nifong's motives and tactics.
dklittl, you name me another high-profile case, in the past five years in which the DA has ever had this little evidence and where the DA (in violation of legal ethics) already presumed the defendants guilty publicly before even charges were made.
As your comments, "Every statistic or study completely contradicts your notion that poor black defendants have an easier time in our justice system. EVERY SINGLE ONE."
Once again, I never said black defendants have an easier time in the justice system. What I said was that if the defendants were poor and black in a high profile case like this where there was absolutely no evidence and the allgeged victim had a record for lying and constently purgered herself, the charges would have been dropped.
Since charges wouldn't have been made it is difficult or nearly impossible to find statistics on the number of investigations dropped in this scenario. Howevever, there have been numerous allegations against black athletes (collegiate and professional) where charages have been dropped, even though the evidence was considerably more glaring than this.
Do you honestly think if the accused had been black basketball players and honors students, that in the aftermath of this event, 88 Duke faculty members would have taken out a full-page ad called ‘listening’ statement,” in the school newspaper?
Do think Peter Neufeld the co-founder and director of the anti-death penalty group, the innocence project who has consistently used lack of DNA evidene to prove his clients were innocent would have said of this exculpatory evivence,
"There’s an old saying that the absence of evidence is not necessarily evidence of absence."
BTW, I never said that Nifong would lose his job over this. I argued though if the situation was in reverse that he would have.
Please read carefully, before blogging and distorting someone's words. In general, please read more as you appear to be very uninformed about many things.
But alas, we still have people like hygate that believe that this white DA has some particular bias towards black people instead of being a craven politician only seeking votes from his constituency like every DA in a predominantly white district, or that civil rights groups are some all-powerful organization who like Judith Regan's "Jewish cabal" have some evil and dominating agenda that the poor and disenfranchised white people are powerless to stop.
Hey, dklittl,
Talk about seeing and hearing what only what you want to see and hear! Your characterizations of my arguments are the exact opposite of what I stated. I find this particularly ironic since in the same posting in which you did so you adopted some of the positions I actually hold as your own. Of course Nifong is railroading these kids for political purposes and yes DAs get away with this sort of thing all over the US. I fail to see how you could arrive at any other conclusion from my statement that:
If the media, civil rights activists, and Duke's administration and faculty were really interested in stopping out of control DAs from abusing their power in order to secure convictions against poor black defendants then perhaps they should be using this case as a catalyst to bring about change to the system
Perhaps if I rephrase my argument you will be able to comprehend it. DAs are going to keep doing this sort of thing (everywhere) until changes are made that prevent it. As you said, this is a teachable moment. However, the media and civil rights organizations (at least as represented by Al Sharpton and Jesse Jackson) are throwing that chance away. In the name of "solidarity" they are throwing their collective clout (the clout that any other organized constituency holds) behind a clearly out of control DA. In my opinion a better strategy would be to use this opportunity to work for structural changes so that DAs cannot get away with this sort of thing any longer. Because they are throwing this chance away poor blacks will continue to be railroaded by out of control DAs. To me this seems to be a bad thing, but apparently you feel that someone holding this opinion must be a bigot.
all charges were dropped against the specific members of the lacrosse team who had been indicted? just like that?
There's something not right about this.. So Nifong just became aware that those three white kids were not guilty of the rape?
I don't think I'm following i think i missed something in the process..
Thanks for the post! I didnt know about this..
Jenna
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