Monday, October 16, 2006
36 of 60 Minutes
Ed Bradley and the team at 60 minutes did a pretty good job showing what an injustice seems clearly to be brewing in Durham. Here is close coverage for those who missed it.
As a former prosecutor, I was struck by the actions of DA Nifong:
District Attorney Mike Nifong, who had declared that DNA would be the crux of his case, played down the results, speculating that the absence of DNA meant that the attackers may have used condoms, although the accuser had already stated that there were "no condoms used", and that at least one of her three attackers had ejaculated inside her. Although it was a major setback for his case, the D.A. said he was undeterred.
"For most of the years I've been doing this we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way--witnesses got on the stand and told what happened to them," Nifong stated.
Without the DNA evidence he had hoped for, the D.A. needed the accuser to identify the three men who had raped her. Days after the party, she was shown photo lineups of 36 lacrosse players and didn't pick out anyone as her attacker. In fact, she didn't recognize David Evans at all, and was fairly certain only that she had seen Reade Seligmann somewhere at the party. So, two weeks later, the D.A. supervised another line-up, this one showing mugshots of all 46 white players on the team. (Emphasis added).
[...]
60 Minutes asked James Coleman, a prominent law professor at Duke University Law School who helped establish guidelines in North Carolina designed to protect against false identifications in police line-ups. He says this line-up broke one basic principle: there were no "filler" photos, no pictures of people not connected to the case. The accuser only saw photos of lacrosse players who police told her were at the party.
"If she's told all of these people who were considered suspects were at the party, so you pick three and we'll indict those three," Coleman says.
"So she can't make a mistake," Bradley remarks.
"Can't make a mistake," Coleman replies.
Professor Coleman says the line-up ordered by the D.A. for the Duke lacrosse case violated local, state and federal guidelines. The D.A. has been quoted as saying that will be up to a judge to decide.
So DA Nifong declares before the media that he's sure a rape occurred and that DNA will make his case. (He got a court order to take the samples from all the white players on the team so he had to tell the judge that it was necessary and helpful for the case). DNA exonerates the Duke lacrosse players. So he creates a line-up with no fillers. As Professor Coleman says, the accuser can't be wrong--if she picks someone, he was on the team and therefore must be guilty. Incredible.
But the line up also presents an opportunity for the Court to step in and stop this miscarriage. The accuser is shown photos of most of the team (including at least two of the accused) and she fails to identify anyone. She is then shown only photos of the whole team in the photo line-up. The Court could declare the photo line-up done this way was so suggestive that it violated the accuseds' due process rights and tainted any in court identification and suppress any such identification by the accuser of the three Duke players. Because there is no other witness nor any DNA, that means a dismissal. We'll see.
As a former prosecutor, I was struck by the actions of DA Nifong:
District Attorney Mike Nifong, who had declared that DNA would be the crux of his case, played down the results, speculating that the absence of DNA meant that the attackers may have used condoms, although the accuser had already stated that there were "no condoms used", and that at least one of her three attackers had ejaculated inside her. Although it was a major setback for his case, the D.A. said he was undeterred.
"For most of the years I've been doing this we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way--witnesses got on the stand and told what happened to them," Nifong stated.
Without the DNA evidence he had hoped for, the D.A. needed the accuser to identify the three men who had raped her. Days after the party, she was shown photo lineups of 36 lacrosse players and didn't pick out anyone as her attacker. In fact, she didn't recognize David Evans at all, and was fairly certain only that she had seen Reade Seligmann somewhere at the party. So, two weeks later, the D.A. supervised another line-up, this one showing mugshots of all 46 white players on the team. (Emphasis added).
[...]
60 Minutes asked James Coleman, a prominent law professor at Duke University Law School who helped establish guidelines in North Carolina designed to protect against false identifications in police line-ups. He says this line-up broke one basic principle: there were no "filler" photos, no pictures of people not connected to the case. The accuser only saw photos of lacrosse players who police told her were at the party.
"If she's told all of these people who were considered suspects were at the party, so you pick three and we'll indict those three," Coleman says.
"So she can't make a mistake," Bradley remarks.
"Can't make a mistake," Coleman replies.
Professor Coleman says the line-up ordered by the D.A. for the Duke lacrosse case violated local, state and federal guidelines. The D.A. has been quoted as saying that will be up to a judge to decide.
So DA Nifong declares before the media that he's sure a rape occurred and that DNA will make his case. (He got a court order to take the samples from all the white players on the team so he had to tell the judge that it was necessary and helpful for the case). DNA exonerates the Duke lacrosse players. So he creates a line-up with no fillers. As Professor Coleman says, the accuser can't be wrong--if she picks someone, he was on the team and therefore must be guilty. Incredible.
But the line up also presents an opportunity for the Court to step in and stop this miscarriage. The accuser is shown photos of most of the team (including at least two of the accused) and she fails to identify anyone. She is then shown only photos of the whole team in the photo line-up. The Court could declare the photo line-up done this way was so suggestive that it violated the accuseds' due process rights and tainted any in court identification and suppress any such identification by the accuser of the three Duke players. Because there is no other witness nor any DNA, that means a dismissal. We'll see.
# posted by Roger Fraley @ 5:10 AM 
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I hope we're not reduced to prayer as the only hope for justice, it's just a way for a judge to take away the possibility of wrongful conviction. I personally think it's a long shot.
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