here's an excellent summation of the facts thus far in the "case"... copied directly off this
link.
When The Law Is An Ass 6/07/2006
Like most of you, we have followed the lacrosse case with grave concern. We have generally declined to take a stand on the question of guilt or innocence, because until all the evidence is in the public arena, we can't know for sure what to think. But what can be and should be commented on is the conduct of the prosecution. This case is made for the media age, with a devastating combination of race, sex and privilege, but it also underscores the dangers of an out of control prosecutor who shoots from the hip.
The whole thing has become fairly sprawling, so it might be good to go back and review a bit. We've broken it down into three major categories: Evidence, Witnesses, and District Attorney Mike Nifong's behavior.
The evidence
There is significant evidence that has been disclosed to the public that tends to contradict or undercut the claim of rape. Of course this does not necessarily mean that a rape could not have taken place, though, since not everything is publicly known yet.
The time-stamped photos taken at the party. The photos show the dancers at various points during the evening's events. The photo also shows the accuser returning, with a smile, apparently after the point-in-time when she was supposedly raped, and apparently shows some bruises before the time of the alleged rape. Here is a chronology of the photos taken from the Duke Chronicle.
12:02 a.m. - A time-stamped photo provided by defense attorneys shows women dancing in front of the lacrosse players.
12:03 a.m. - Another photo shows both dancers leaving the party.
12:03 a.m.-12:30 a.m. - There is a 27-minute gap where no photos were taken.
12:30 a.m. - A time-stamped photo shows the alleged victim, wearing only one shoe, rifling through her purse and apparently smiling on the back porch of 610 N. Buchanan Blvd.
12:37 a.m. - A photo shows the woman lying on her side on the porch, apparently passed out.
12:41 a.m. - A photo shows the woman sitting in the passenger seat of a car with the door open.
The alibi. Reade Seligmann presents a fairly compelling argument that he could not have been there during the time of the alleged rape. There is a 27 minute period when no pictures were taken, from 12:03 to 12:30. Seligmann made two calls, one at 12:07 a.m., and the other at 12:14 a.m., according to phone records. Sometime in the next 10 minutes, before 12:24, a cab driven by Moezeldin Almostafa (aka Moez Mostafa) picked him up. They arrived at a Wachovia - presumably on 9th Street - and then Almofasta took them to a Cook-Out restaurant. Seligmann says he has receipts for both transactions. Duke can also identify the time when his card was swiped at the door of his dorm, which was 12:46 a.m.
The date rape drug suggestion. When we first heard that "a source close to the investigation" suggest that a date rape drug may have been used, it was a disturbing suggestion, and it almost made sense. However, if the alleged victim were drugged, she certainly couldn't have fought back as ferociously as she claimed she did, and likely wouldn't have remembered much, either. It is possible, of course, that she was drugged and the rape took place before the drug kicked in, but Roberts says the alleged victim was intoxicated before any assault took place. However, when the police arrived at Kroger's and found the alleged victim in the car, Sgt. J.C. Shelton said that while she did appear unconscious, that when he used an ammonia capsule to awaken her, she "began mouth breathing, which is a sign that she was not really unconscious."
"My experience is that unconscious people wake up rather quickly when exposed to ammonia capsules," Shelton said.
And when he tried to remove her from the car, she held onto the parking brake to keep from being pulled out. She refused to give her name or address, so Shelton directed that she be taken to a mental health/substance abuse center for observation. At this point she said that she had been raped at 610 N. Buchanan, and Shelton had her taken to Duke University Medical Center.
The lineup. The Durham authorities gave the alleged victim photos of only lacrosse players - an act which may not stand up in court. Justice Department guidelines on using photo identifications call for "using a photo array that includes only one suspect and at least five 'fillers,' or other people who generally fit the witness' description of the perpetrator, for each array." That clearly did not happen. And defense attorneys allege that there was another examination of photos which Nifong did not voluntarily share.
The DNA. Nifong was going to build his case on the DNA tests, which failed to link any member of the lacrosse team to the alleged attack. And one prominent local attorney said that in his judgment, because asking people who were not suspects for their DNA constituted an unreasonable search and seizure, it would have been tossed out of court anyway.
And as it turned out, recent DNA was found, but was allegedly from her boyfriend - though she allegedly also had sex with two of her drivers (we're assuming they dropped her off at her appointments).
The polygraph. David Evans offered to take a polygraph for Nifong, who refused the offer. He then took it on his own and was judged to be truthful. Polygraphs are not admissible in court, but they do give prosecutors a chance to ask suspects highly invasive questions. For some reason, Nifong declined the opportunity to ask Evans intrusive questions about the evening's events.
The Witnesses
The Accuser
The accuser has some serious issues with her account and her credibility.
Her criminal record. It's well-known by now that after giving a taxi driver a lap dance, she stole his keys and took his car and was accused of trying to run over a police officer. She was convicted on four charges: Speeding to elude arrest, assault against a government official, DWI level 3, and larceny. She served no jail time.
As a witness. Her criminal record aside, in this case she said, among other things, that she was raped by 20 men, before saying that it was actually three, and that the other dancer was in the bathroom at the time (Roberts called that "a crock"). She also apparently said that the men did not use condoms, which would, one would think, make DNA more readily available.
At the hospital, the woman recanted her rape accusation, telling Sgt. Shelton of the Durham Police Department that she had been pulled from the vehicle (apparently Roberts' Honda) and groped but not raped (there is no indication anywhere that Roberts backs the pulled/groping allegations).
When Shelton asked her if she had or had not been raped, she cried and told him she didn't want to talk to him anymore. She also apparently told Shelton that she had been dragged into the bedroom rather than the bathroom.
Previous allegation of gang rape. In 1996, she reported that three years earlier, at age 14, she had reported being raped by three men, but when police asked for more information in that case, she declined to follow up. Her mother said she was in therapy following the alleged incident.
She also accused her former husband of trying to kill her but never showed up for the hearing, and so the charges were dropped.
Kim Roberts
Kim Roberts has credibility issues as well.
Her criminal record. As a convicted embezzler, Roberts is certain to have her character impeached. Her problems following the terms of her probation won't help either (she failed to pay restitution and left the state, both violations of her probation).
The first 911 call. Although she didn't identify herself, the caller was Roberts, who, in the course of one call, had herself driving a car, then walking, then parking. She repeatedly mentioned the address of the house, which couldn't be seen from the street. She admitted she purposely obscured her identity and her knowledge of anything which might have happened that evening. All sides agree that racial insults were hurled. The defense will argue that this was why Roberts made this call and will use it to, again, to attack her credibility.
The PR E-mail. Roberts acknowledges sending this e-mail:
Sent: Wednesday, April 19, 2006 2:21 PM
To: Ronn Torossian
Subject: duke lacrosse scandal
Hi!
My name is Kim and I am involved in the Duke Lacrosse scandal. Although I am no celebrity and just an average citizen, I've found myself in the center of one of the biggest stories in the country. I'm worried about letting this opportunity pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage. I am determined not to let any negative publicity about my life overtake me. I'm so confused as to who to talk to for relevant advice and I hope that you can return my e-mail. If you cannot help, do you know of any names and numbers I can call?
Thanks for your time
Again, her credibility will be hammered over this and her motives will be questioned, just as she will be intensely grilled about the first 911 call. There may well be other witnesses for the prosecution, but the two dancers are going to get hit hard by the defense.
Mike Nifong's Role
Prosecutorial Ethics
Clearly, the prosecutor's case has some serious weaknesses. But questions of evidence pale compared to questions about ethics, and Nifong's performance has raised some serious ethical concerns.
Robert Hines, a Duke-trained attorney, points out the following:
Rule 3.8(f) of the NC Rules of Professional Conduct deals with the responsibilities of a prosecutor and states the following:
The prosecutor in a criminal case shall:
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under this Rule.
According to attorney Jason Trumpbour, also a Duke grad,
Without getting into too detailed of a bill of particulars, he has violated, not one but likely, several ethical rules. There is little doubt at this point as to his egregious and systematic violation of the rule against publicly commenting on matters likely to be tried in court. Not only is he tainting the jury pool by trying the case in the media, he is using the opportunity to do so to make arguments to the jury pool that he could not make in court. Calling the defendants 'hooligans,' suggesting that innocent people do not need lawyers and inviting the inference of guilt from the silence of the accused are things that would bring instant and vigorous rebuke if uttered in open court and could potentially be grounds for mistrial or contempt of court.
The preamble to the rules of ethics used in North Carolina states that Lawyers should 'cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.' Although this is established as an ideal rather than a rule, it, nevertheless, provides another lens through which to these arguments. By making these sorts of arguments and generally acting as a demagogue, Nifong has done the opposite. He has spread misinformation about the law and sought to undermine its most cherished values, such as the equality of all persons before the law, the right to and importance of assistance of counsel and that the accused should be tried in a manner that respects their fundamental rights. Such statements also bring the profession into disrepute.
Witness Manipulation
Then there are things which may later prove to be unethical, or worse, but at an absolute minimum, miserably fail the smell test.
First, there is the deal with Kim Roberts. A convicted embezzler, she was excused from having to pay a 15% bonding fee. Shortly afterward, her testimony changed.
It's entirely possible, of course, that there is no connection between A and B, but you'll forgive us for being dubious. It's one thing for her to change her story if it goes from being false to true, but another entirely if she changes it from true to false to get a good deal and to make the prosecutor happy.
It's also entirely possible that the cab driver who provided Reade Seligmann's alibi was picked up by Durham police on old shoplifting charges coincidentally, but he claimed that they asked him if he had anything else to say about the lacrosse case. When he said no, he says they took him in. The suggestion here, of course, is that if he had had "something else to say," they wouldn't have taken him in.
We found out something interesting and unsettling about this: in North Carolina, if you are convicted of a crime, a prosecutor can disqualify your testimony in a trial. So it's not simply about intimidation, but rather a way to shoot down part of Reade Seligmann's alibi. Nice.
Misstatements, Machinations, and Lies
Nifong's performance in many respects has been abysmal.
His media comments have been unethical at best and could play a significant role in sending three young men who have the right to be presumed innocent, and who may in fact be innocent, to prison for years.
He called the team "a bunch of hooligans," which is prejudicial, to say the least.
Suggesting that the right to remain silent is indicative of guilt is disgusting.
Suggesting that they wouldn't need lawyers if they were innocent is beneath contempt, and any first-year law student - really, anyone who has seen a half-dozen TV law dramas - would know better.
During a campaign season in a city notorious for politics which split on racial fault lines, he appeared at an event at N.C. Central and took questions on the case. The New Black Panther Party, a profoundly anti-semitic group with the sort of violent rhetoric that recalls the early days of the Nazi's Brownshirts, claims that he met with them and discussed the case, something we haven't seen refuted anywhere, by Nifong or anyone else.
However, Nifong has not only refused to meet with defense attorneys - many of whom he has known for a decade or more - he has refused to even consider possible exculpatory evidence.
Nifong initially suggested that he would build his case around DNA evidence, but when that fell through, he suggested that the suspects might have used condoms - when he knew the alleged victim said during her rape exam that they didn't. Assuming that that is factually correct, Nifong had to know that she said that, and when he said that they may have used condoms, he was, in fact, simply lying.
The comments about a date rape drug were illogical on their face (since she had a pretty distinct recollection of the alleged incident and said she fought back), but since it appears that neither Nifong nor the police requested a toxicology test, he surely knew that comments from "a source close to the investigation" about the use of a sedative could not be proven. Quite simply, this is another lie, and an attempt to spin the media.
The attempt to interrogate players in their dorm room, without checking with their attorneys, as required by law, and the attempt to search without a warrant, was a shocking abuse of power.
During the investigation, a controversial e-mail came from the address of a team member which told teammates that he planned to tell authorities that a crime had been committed and that he knew who had done it and would turn them in. The young man denied that he had sent it, and defense attorneys believe that it was an attempted setup by police, who wanted to make the lacrosse team members nervous. The e-mail bore the subject "sorry guys" in the subject line, and contained this message: "I am going to go to the police tomorrow to tell them everything that I know." The player said he was in class at the time the message was sent, although he still could have sent it from any number of wireless devices. But the source of the e-mail should be traceable. The police surely had his password and had the means and opportunity to cause mischief.
The arrest of the cab driver, Moezeldin Almostafa, as we said previously, is a tactic to defuse Seligmann's alibi. But on another level, it is simple witness intimidation: Almostafa is an immigrant, and could face possible deportation over this. On a purely tactical level, it's a logical move, but the two levels of Nifong's ruthlessness on display here are chilling.
Public Posturing & Electioneering
What could possibly justify this sort of behavior? As far as we can see, without delving into psychoanalysis, only one thing: the election.
In Durham, the reality is that a black candidate in the field usually gets no less than 40% of the vote, and with former prosecutorial rival Freda Black in as well, Nifong was in real trouble. The case gave him the opportunity to appeal to black voters, which he did successfully enough to win the election.
Unfortunately, it came at a significant social cost for Durham, a huge hit for Duke's image, and most critically, at the expense of a number of people who were, even Nifong agrees, entirely innocent, and three young men who may be innocent as well. People's lives have been destroyed over this.
It's certainly possible, as we said earlier, that there is some evidence which has yet to be released which will change the dynamic radically. As Nifong points out, correctly, the defense will discuss those things which are to their advantage but not things which hurt their cause.
Everyone should bear that in mind. And any decent person, most of all we would hope any Duke fan, would not want anyone who committed such awful crimes as are alleged in this case to go free. We are not so blindly loyal to Duke that we would have guilty men walk away from such crimes. If the evidence in court proves they are guilty, we would hope for significant punishments.
And we should also remember that while the lacrosse players may well be innocent, they are hardly innocents. They have behaved boorishly in many respects, from drinking like pigs to copulating recklessly in an era when that can get you killed, and to round off treating women like sh*t, hiring strippers and allegedly making lurid suggestions about broomsticks as substitute phalluses. And then there were the racist comments which no one denies took place.
But these are acts of sotten louts, of piggish, stupid boys who have no concept of behaving like grown men, and while they carry consequences, they don't send you to jail for these things.
Nonetheless, jail looms as a distinct threat. But if they go to jail, they are still entitled to a fair trial first. At this point, given the way Nifong has exercised his powers, a fair trial seems a long shot.
The Real Threat
If the shaky evidence, the witness manipulation and the lies turn out to be merely a way for Nifong to gain elected office at the expense of young men who made stupid decisions and who exposed themselves to considerable risk, he deserves to be not just disbarred but to be indicted, because if that's what's happened here, his behavior is not just stupidly aggressive and unethical, it's criminal. And as horrible a crime as rape is, it is not nearly as dangerous as an instrument of the law who will not himself submit to it.
And although the tendency for many people, unfortunately, is to say that well, it's just a bunch of rich white boys from Duke and their mommies and daddies will bail them out, why would anyone think an out-of-control prosecutor would limit his abuses to people who can actually fight back?
Nifong may have used this case to get the black vote in Durham, but anyone who trusts this man not to turn this sort of abuse against the powerless is out of their minds. If you think the pattern we're seen here will be limited to prominent defendants, you need to reconsider, and quickly.
We're willing to bet that there are a lot of people in jail in Durham who have been there for weeks and months but who lack the resources of the Seligmann's, the Finnerty's, and the Evans's, and who cannot make bail. Moreover, if statistics bear out, many if not most of them will be African-American.
They may or may not be guilty as charged, but Nifong has shown a willingness to bend the facts - and the law - to suit his needs. If he needs a conviction, the current case suggests he'll do whatever he has to do to get it - and Fox News, CourtTV - they'll be nowhere in sight.
And while false allegations of crimes will always be with us, we're also concerned that the inevitable reaction to the overtly public trial-by-media employed by lawyers on both sides of the case may discourage rape victims from coming forward in the future, and that's a devastating side effect of what's happening here.
However, the public nature of the legal argument was started by Nifong. Once he started down that path, the defense attorneys were allowed (and indeed obliged) to answer in kind. Had he behaved properly, the defense could not have responded in the way that they have.
Perhaps the whole situation is summed up best by Kenneth Callahan, a judge from Ohio who wrote a guest column recently for the Durham Herald-Sun (the article unfortunately is not online). He emphasizes the following:
"A moral human being does not create racial divisions for personal gain."
"No candidate for office should make an ongoing investigation part of his campaign speeches."
Quoting from the American Bar Association Standards for Criminal Justice: "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely convict."
Mike Nifong is a danger to anyone who finds themselves in the criminal justice system in Durham County. He has shown a disregard for the law and for his ethical responsibilities, and in fact has become an enemy of justice rather than an enforcer of justice.
Someone else can handle the case and ensure a fair and honest outcome, something which everyone wants. Let them.
As for Nifong, in our opinion, his behavior has been egregious and should be investigated by the state bar association and by the Justice Department, and the sooner the better.
*****
The timeline, as printed by the Chronicle:
11:30 p.m. - Approximate time, according to a Durham police warrant, of the two exotic dancers' arrival at 610 N. Buchanan Blvd.
11:50 p.m. - Neighbor Jason Bissey told the Raleigh News and Observer that he saw two women walk to the back of the house, where they were greeted by a man.
12:00 a.m. - Bissey sees the two women enter the house.
12:02 a.m. - A time-stamped photo provided by defense attorneys shows women dancing in front of the lacrosse players.
12:03 a.m. - Another photo shows both dancers leaving the party.
12:03 a.m.-12:30 a.m. - There is a 27-minute gap where no photos were taken.
12:07, 12:14 a.m. - Phone bills indicate two outgoing calls are made from sophomore Reade Seligmann's cell phone. Seligmann was arrested April 19 and charged with first degree forcible rape, first degree sexual offense and first degree kidnapping.
Sometime before 12:24 a.m. - A taxi driver has said in a written statement that he picked up Seligmann and a friend a block and a half away from the party.
12:24 a.m. - Seligmann's ATM card is used at a Wachovia bank. The taxi driver confirmed that he drove Seligmann and his friend to a bank and fast food restaurant before taking them to West Campus.
12:25 a.m. - Seligmann calls his girlfriend, another Duke sophomore, on his cell phone.
12:20 a.m.-12:30 a.m. - Bissey told the Durham Herald-Sun he saw the women leave the house during this period, only to try to go back inside to retrieve a missing shoe.
12:30 a.m. - A time-stamped photo shows the alleged victim, wearing only one shoe, rifling through her purse and apparently smiling on the back porch of 610 N. Buchanan Blvd.
12:37 a.m. - A photo shows the woman lying on her side on the porch, apparently passed out.
12:41 a.m. - A photo shows the woman sitting in the passenger seat of a car with the door open.
12:45 a.m.-1:00 a.m. - Bissey said he saw the two dancers leave in a car sometime during this time period. He said he saw one man standing adjacent to the East Campus wall, shout "Thank your grandpa for my nice cotton shirt." He added that he saw the players leave the residence shortly thereafter
12:46 a.m. - Seligmann's DukeCard is used to gain access to his Edens dormitory.
12:53 a.m. - The second dancer calls 911, saying white men who came out of 610 N. Buchanan yelled "******" at her from near the East Campus wall. Defense attorneys have questioned inconsistencies in the call - the caller first said she was driving, and later said she was walking when the slur was yelled.
12:55 a.m. - Durham Police Department officers arrive at a quiet 610 N. Buchanan Blvd. They saw there was evidence of a party, but nobody answered the door when the officers arrived.
1:22 a.m. - A female grocery clerk at a Kroger located on Hillsborough Road calls 911, saying "There's a lady in someone else's car, and she will not get out.... She's like, intoxicated, drunk or something." According to ABC News, the clerk later told a private investigator that, based on her encounter with the dancer that night. "There ain't no way she was raped."
1:30 a.m. - The police officer who came to respond to the Kroger call tells a dispatcher that the alleged victim does not need medical attention, adding, "She's not in distress. She's just passed-out drunk."
1:58 a.m. - An e-mail sent from the Duke account of sophomore lacrosse player Ryan McFadyen discusses hiring strippers and "killing the bitches"
