Sunday, December 24, 2006
Antipenultimate Post on the Duke Non-Rape Debacle
Tom Maguire at Just One Minute blog, who was all over the Plame non-scandal (indeed he got into details too arcane even for me) has a bold prediction about what DA Nifong will do with the almost certainly bogus, ever shrinking charges against the 3 Duke lacrosse players. He says:
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.
Funny I get absolutely the opposite prediction. Maguire points to this part of the NYT report for his optimism that justice will prevail soon:
...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."
Let me explain the source of my cynicism. The accuser has failed to identify anyone in a convincing way (she said, for example, one guy was definitely there who definitely wasn't, failed to pick any of the current accused who were in the first photo line up, and said one of her attackers had a moustache when he never did). However, when she got the can't-pick-wrong third photo line up, she had tears in her eyes when she picked (apparently at random) the three now charged and said she was sure or pretty sure all three of them raped her (now she doesn't recall if she was actually, well, raped-- is this girl a dream witness for the prosecution or what?)
If she now drops one or two of them, she has again changed her story (and I've lost count of the number of substantial changes in her story). What Nifong seems to be incapable of is using his required discretion (a new oxymoron) to judge the credibility of now his only witness. For example, if a woman says three white guys kidnapped and raped her and then says later, no it was just two white guys, the third person was a space alien with green skin, you don't go forward with the case against the two men, you drop the whole case. It's not exactly rocket science. An unbelievable witness cannot get you a conviction and the case must be dropped. Immediately.
Maguire has more about how much trouble Nifong is in for what looks an awful lot like lying to a judge about the DNA results he apparently conspired to keep from the defense. It's never good to lie to a judge. Money quotes there.
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."
[...]
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"...
I truly believe Nifong has destroyed himself and damaged his office (and DAs everywhere) by sticking with this case when a competent prosecutor would have punted long ago. His apparent ethical violations may well strip away the immunity DAs should and do enjoy. Maguire closes with something I do agree with:
Nifong is going down - the question is, how far?
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.
Funny I get absolutely the opposite prediction. Maguire points to this part of the NYT report for his optimism that justice will prevail soon:
...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."
Let me explain the source of my cynicism. The accuser has failed to identify anyone in a convincing way (she said, for example, one guy was definitely there who definitely wasn't, failed to pick any of the current accused who were in the first photo line up, and said one of her attackers had a moustache when he never did). However, when she got the can't-pick-wrong third photo line up, she had tears in her eyes when she picked (apparently at random) the three now charged and said she was sure or pretty sure all three of them raped her (now she doesn't recall if she was actually, well, raped-- is this girl a dream witness for the prosecution or what?)
If she now drops one or two of them, she has again changed her story (and I've lost count of the number of substantial changes in her story). What Nifong seems to be incapable of is using his required discretion (a new oxymoron) to judge the credibility of now his only witness. For example, if a woman says three white guys kidnapped and raped her and then says later, no it was just two white guys, the third person was a space alien with green skin, you don't go forward with the case against the two men, you drop the whole case. It's not exactly rocket science. An unbelievable witness cannot get you a conviction and the case must be dropped. Immediately.
Maguire has more about how much trouble Nifong is in for what looks an awful lot like lying to a judge about the DNA results he apparently conspired to keep from the defense. It's never good to lie to a judge. Money quotes there.
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."
[...]
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"...
I truly believe Nifong has destroyed himself and damaged his office (and DAs everywhere) by sticking with this case when a competent prosecutor would have punted long ago. His apparent ethical violations may well strip away the immunity DAs should and do enjoy. Maguire closes with something I do agree with:
Nifong is going down - the question is, how far?
# posted by Roger Fraley @ 9:18 AM 
