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The Duke Lacrosse Case and the Problem of Fading Memory:
Over at Dorf on Law, Michael Dorf has this very interesting post on eyewitness testimony and the passing of time.
Public_Defender (mail):
Eyewitness testimony is perceived as valuable when it is,in fact, one of the least reliable form of evidence available. When an innocent man is released from prison, you can bet that the conviction was based on eyewitness testimony.

Try to remember the face of the clerk who sold you your last Christmas present. And the stress of a crime makes identifications less, not more, reliable. Professor Dorf, like most crime victims, pointed out that he was trying to survive, not concentrating on facial features.

In the Duke case, the witness's testimony was forever tainted by a photo line-up that included only Duke Lacross players.

Maybe Nifong has something else--a statement from one of the players at the party who can testify that the defendants restrained the "victim's" liberty. If so, he may still have a kidnapping case. But the prosecutor's handling of the rape allegations has been shameful.
12.24.2006 4:10pm
elChato (mail):
Having prosecuted rape cases, I know that they are difficult to win even with a very articulate victim who has never changed her (plausible) story. Inter-racial rape cases are radioactive in front of a jury, no matter what the jury's makeup or how strong the evidence.

DAs don't create the witnesses who come to them. But I agree with P-Defender that Nifong has done some shameful things: the pretrial publicity and stupid bragging; false statements to the press about what his evidence would consist of; failure to speak to the "victim" or have someone in his office do so, in what appeared to me a gambit to avoid creating Brady material; cooking the books on the DNA lab report; and now, see my 2d-to-last point, no sooner is he busted on the DNA report than someone re-interviews her and the principal charge must be dismissed because she changes her story AGAIN! It's perhaps debatable whether you could prove misconduct with regard to failure to interview her, and MAYBE the DNA test alteration (since he did provide them with background notes which if you read them revealed what the report didn't), but to me there is no doubt he committed misconduct with his pre-indictment press statements while trying to get elected. This further lowers his credibility for evaluating any other possible bar complaints.

I might also add that he has foolishly and gratuitously handed the defense an issue they can hammer him with at the trial- for I believe that his shenanigans with the DNA report and expert CAN be admitted to the jury, even though he has dropped the rape charges. Even if there IS something to these allegations, we will surely never know, because a jury in Somalia wouldn't convict these dudes after they see what Nifong has done; more likely though he will find a way to dismiss this case, perhaps after his "victim" takes the stand in a pretrial hearing he is suddenly quick to remind us about.

I have said previously that he should go back to traffic tickets; but now I believe that is too big a job for a man like Mike Nifong.
12.24.2006 4:31pm
David M. Nieporent (www):
Elchato, from your list of Nifong's sins, you omit the tainted phot lineups he ordered in violation of established NC procedures. She says she can't identify anybody -- twice -- so he creates a new photo array with all suspects and says, in essence, "Pick three and we'll indict them."
12.24.2006 5:19pm
Ragerz (mail):
"Even if there IS something to these allegations..."

Well, at least you admit that there could be something to the allegations. Maybe that something should be decided by a jury. Instead of by you.

If you were on a jury, and you thought there was "something to these allegation" beyond a reasonable doubt, would you vote to acquit, because you don't like Nifong? Are the rights of the victim to be totally disregarded because Nifong made some mistakes, regardless of the substance of the allegations??

You know, I don't think Nifong is the one on trial here. Indeed, I don't even think he is a witness. I further don't think that whatever mistakes he made affect whether the crime in question did or did not take place. Maybe a jury should evaluate and weigh the actual evidence, instead of bloggers and random commentators.

The defense is crying about not receiving the results of the DNA test promptly enough. But they did receive plenty of time before trial. I don't think the preparation of their case has been substantively damaged here. Yes, Nifong should have released them sooner. But this is a minor issue not going to the substance of what happened on that day.

Oh yeah, and before we talk about disbarring Nifong for purposely concealing exculpatory evidence from the defense or "cooking the books," don't you think he should have the benefit of the doubt. Innocent until proven guilty? You know, the same sort of consideration you bend over backwards to give the lacrosse players?

Or maybe, we should just lynch Nifong and get it over with.

As a former prosecutor, you apparently have more respect for individuals accused of crime than your fellow prosecutors. But guess what, being a former prosecutor does not give you a license to dispense with "innocent until proven guilty" whenever you feel like it.

We have juries for a reason. Let them decide the case on the substance.

I think your simultaneous conviction of the prosecutor (apparently, with no presumption of innocence or examination of the evidence) and acquittal of the defendants, who you admit, might be guilty, tells us everything we need to know about your tendency to rush to judgment. It illustrated perfectly my point about how rushing to judgment in acquitting the defendants is similar to lynchings. In both cases, apparently, careful contemplation of all the evidence is not necessary.

If Nifong really did try to purposely and permanently conceal exculpatory evidence, he should be removed from office and disbarred. That is, if he was really "cooking the books." But really, this does not seem like a plausible story. Do you really think Nifong thought that these wealthy defendants would be unable to pay for their own DNA tests, and that by concealing the results he could obtain a conviction without them every knowing? That doesn't sound plausible. But, your ready to convict him for "cooking the books" already.
12.24.2006 6:56pm
Ragerz (mail):
Oops. I should note my previous comment was addressed to elChato.

Going to the substance of Dorf's comments, I think it true that there are serious problems with memory with the passage of time. However, I do not think I would generalize and say that a photo ID close in time to the incident is always superior to a live ID

First, a live ID obviously provides one with more information. Given the associational nature of our memories, some features apparent in a live i.d. but not in a particular 2d picture could trigger our memories. Photos tend to be adequate for many purposes because humans are extremely good at face recognition compared to their ability to recognize other features. However, a live ID gives on the ability to see the face from more angles.

Also, it should be noted that Dorf only interacted with the individual for 30 to 60 seconds under very stressful conditions. He had not previous interaction with them in a non-attack situation. In the Lacrosse case, by contrast, the stripper interacted with the players before the alleged rape. Her long-term memory of her attackers may be more clear than Dorf's. So, if her memory doesn't degrade as much as Dorf's did with time, the additional information provided by a live ID may render it more accurate than a photo ID. (It should also be noted that IDs that occur very shortly after an attack can be less accurate than those that occur when the individual has become less emotional concerning their attack.)

It may be hard to generalize. You have more information in a 3d live ID than a 2d photo ID. This goes in the direction of more accurate identification for the 3d live ID. You have the passage of time also. This goes in the direction of a more accurate identification for the 2d photo ID. So these two variables go in opposite directions. Add to that variation in memory across individuals, variation in 2d photo quality, and variation in the time between the 2d photo ID and the live 3D ID, and you would expect even more variation in different situations.

Overall, the intersection of memory and criminal proceedings is very fascinating. Dorf's story was definitely worth linking to.
12.24.2006 7:21pm
elChato (mail):
Her "memory" of Evans's moustache? Or of the other guy she said was the only one she was 100% sure was at the party, who turned out to have never been there and was indisputably in Raleigh the entire time? These memories are reliable?

Or how about her repeated and specific statements that she definitely was penetrated- which she now recants?

Which of her stories is the most reliable?
12.24.2006 7:40pm
Kent Scheidegger (mail) (www):
Memory and expert testimony are also at issue in the Sccoter Libby case, discussed here.
12.24.2006 7:43pm
elChato (mail):
http://www.newsobserver.com/100/story/525091.html
Here is an interesting article on Nifong's conflicting statements regarding the DNA evidence he failed to turn over.

It's interesting to see the interplay of "memory" among changing and opposing statements that happen to be in the speaker's self-interest. The story notes that Nifong has offered three different stories to explain why he did not disclose the DNA information. Furthermore, the article notes that Judge Smith in a previous ruling has relied on Nifong's express representation to the court that he did not discuss anything about the case with the DNA expert other than what is in the report- yet that is now contradicted by the expert's sworn testimony.
12.24.2006 7:54pm
ed (mail) (www):
Hmmmm.

@ Ragerz

1. North Carolina has an Open Discovery law that requires the DA to hand over everything with no discretion.

2. Nifong knew about the DNA report on April 10th, *before* he indicted the three young men and very much before Nifong started defaming them before the press.

3. Nifong had stated to the court, and in court, that there was no further exculpatory DNA information available and that the DA's office had turned over *everything*. This is patently false on each of the three occasions.

4. If it weren't for the fact that the defense attorneys had gone through what DNA reports were available with a fine toothed comb and *deduced* what the missing evidence must be, Nifong would have never turned it over.

5. Dr. Meehan admitted several times in court, under oath, that he conspired with Nifong to withhold this exculpatory evidence from the defense. Since Nifong had entered into this conspiracy to withhold evidence I propose that it's frankly stupid to assert that Nifong would have turned it over to the defense at some later date.

Particularly since Nifong had stated on at least three occasions before the presiding judge that there in fact was no additional evidence.

6. I've known several men accused of rape by women who couldn't possibly have ever done the deed and in fact were exonerated by the investigating police.

7. Any rape case that requires the prosecutor to conspire to withhold evidence is one that doesn't inspire much confidence.

8. Considering how often the accuser's story has changed, the number of supposed attackers, the widely varying role of the second dancer and the established proof that at least one of the accused wasn't even there for the attack:

There is just as much evidence that *you* participated in that supposed "rape" as anyone in Durham.
12.24.2006 8:04pm
Ragerz (mail):
ed,

As I have already stated several times, I believe their is an appropriate place to discuss the substance of the case. And that is within a court before a jury. Not here on this blog.

I will note a couple of point, not having to do with the substance of the case.

You write:
"Nifong had stated to the court, and in court, that there was no further exculpatory DNA information available and that the DA's office had turned over *everything*. This is patently false on each of the three occasions."

There is this thing where you say something that is false, but it is not a lie. This is called a mistake. We have all said false things that we believed to be true when we said them. This is not a good thing, but the remedy is to correct the record, not have an epileptic fit over it.

There is no doubt that Nifong should have turned over the DNA evidence sooner. He has admitted as much. This was probably an honest mistake, not an attempt to "cook the books." Nifong would be pretty stupid to think that he could get away with withholding evidence from wealthy defendants whose lawyers were picking through the evidence with a "fine toothed comb" and who can afford to have their own DNA tests done on the evidence. While I think Nifong has made some mistakes, I don't think he is stupid. Also, my presumption is that, despite some mistakes, Nifong is prosecuting this case in good faith. But even if he is not, the defendants have a right to a jury trial. The jury are the ones who should be making the substantive decision concerning guilt or innocence. Not me. Not you. Not the press. If the judge feels that the mistakes concerning discovery are bad enough in this case, he can dismiss it even before it even gets to a jury. I don't think that should be the result here; the defense got this evidence with plenty of time to use it to prepare their defense. It would not be unfair to the defense to go forward. An appropriate remedy would be a delay in the trial so they can analyze this evidence, if that is needed.

ed writes:
"6. I've known several men accused of rape by women who couldn't possibly have ever done the deed and in fact were exonerated by the investigating police."

Wow. This is what I call prejudice. This has absolutely nothing to do with this case. Someone like you shouldn't even be allowed on the jury, because you apparently feel otherwise. If it isn't relevant, why did you bring it up??

ed writes:
"7. Any rape case that requires the prosecutor to conspire to withhold evidence is one that doesn't inspire much confidence."

Any person who thinks that their own personal experiences in entirely unrelated incidents involving entirely unrelated individuals is relevant to this case doesn't inspire much confidence in their judgment. Also, you asserting that the prosecutor is conspiring to withhold evidence, when he could have simply failed to turn it over by mistake doesn't inspire confidence either. Look, I am not going to say that you are "conspiring" to be ridiculous by bring up totally unrelated incidents as your point number 6. Instead, I am assuming you probably just made a mistake in making such a ridiculous point.

"8. Considering how often the accuser's story has changed, the number of supposed attackers, the widely varying role of the second dancer and the established proof that at least one of the accused wasn't even there for the attack:"

To make some general points, that are not to be interpreted as substantive with respect to this case in particular, I should note that it is not unusual for their to be minor discrepancies in the stories of crime victims, witnesses, or anyone else for that matter. But this is precisely why we have these things called trials. It is up to the jurty to assess these things to the best of their ability. The defense will point out the discrepancies, claiming that they are sinister evidence of lying and try to damage the victim's or witness's credibility. The prosecutor will argue that these are simply mistakes that anyone in the witnesses situation could make.

We all make mistakes. I thought I went out to eat at 4:30, it turned out that it was 5:15. I thought such and such tramatic event lasted for an hour. It actually only took a few minutes. Human's have imperfect perceptions and memories. Especially when a tramatic crime is perpetrated against their physical selves. You have to take all of these things into account.

This is why we have trials and don't convict or aquit people on blogs, or in the press. The substance of this case belongs in a courtroom. Your antecdotes about your personal experiences are completely irrelevant.
12.24.2006 9:08pm
Armen (mail) (www):
12.24.2006 9:27pm
ed (mail) (www):
Hmmmm.


There is this thing where you say something that is false, but it is not a lie. This is called a mistake. We have all said false things that we believed to be true when we said them. This is not a good thing, but the remedy is to correct the record, not have an epileptic fit over it.


How the failure of the DA to turn over exculpatory evidence be termed a "mistake" when a co-conspirator had admitted under oath that the omission was *deliberate* frankly is ridiculous.

And note that I did not advocate that the three defendants be acquitted on the basis of blog posts. Instead I was responding to the frankly incorrect points in your comment.

As for the trial. What I find curious is that the people who defend Nifong's actions the most all resort to the argument that this case must go to trial. Why? There isn't any evidence whatsoever of a crime. There are no corroborating witnesses. The lineup was a fraud.

What assertions like this do is undercut an extremely basic point in the legal system: that the police investigation and prosecutorial due diligence is supposed to determine if there was a crime at all prior to indictment and eventual trial. If every single accusation, whatever the evidence purported, were required to go to trial then hundreds of thousands of people would be forced to go through the stress and expense of trials without need.

And yet again you also ignore the active conspiracy by Nifong to withhold evidence and yet again try to characterise it as a "mistake". It was not a mistake, it was deliberate. And if what you've written so far is indicative of the strength of your position then I'm not going to waste my time with you any further.

No sir. Mistaking "4:30" with "5:15" is NOT the same as being given evidence on April 10th, conspiring to keep it from the defense and then denying the existence of that evidence in oral court arguments and in court filings on multiple occasions.

So frankly I think any further discussion with you is pointless and a complete waste of my time.
12.24.2006 9:27pm
JohnAnnArbor (www):

I should note that it is not unusual for their to be minor discrepancies in the stories of crime victims, witnesses, or anyone else for that matter.

You obviously haven't read much on the case. The discrepencies are hardly "minor"; her story had varied from nothing happened to 20 guys raped her to about ten stories in-between.

By the way, what do you think of the lineup that only included lacrosse players? Lineups are ALWAYS supposed to have people unrelated to the issue, used as a control against random guessing. In her case, it sure sounds like random guessing, as one guy wan't even there--proven by ATM records, time-stamped photos and a cab driver--at the time. Oops.
12.24.2006 9:38pm
JohnAnnArbor (www):
Oh, and the three players picked? Probably the richest of the players.

I'm sure that was a coincidence, though. RIght?
12.24.2006 9:43pm
PersonFromPorlock:

Oh, and the three players picked? Probably the richest of the players.

I'm sure that was a coincidence, though. RIght?

I'm pretty sure that by now Nifong knows it was a mistake.
12.24.2006 10:00pm
Public_Defender (mail):
Ragerz,

I accuse you of rape. Because you have been accused of rape, your full name should be published in international media. You are not allowed to argue that you are innocent except in front of a jury, which is the only place that it is appropriate to discuss a criminal allegation.

To use your words, "The [people on the] jury are the ones who should be making the substantive decision concerning guilt or innocence. Not me. Not you. Not the press."

This makes as much sense as your arguments.

Enjoy your holidays.
12.24.2006 10:02pm
Dave Hardy (mail) (www):
Ahem--http://www.newsobserver.com/100/story/525091.html . The high points:

"In May, Nifong gave the defense a 12-page report disclosing that DNA taken from the accuser's body did not match that of any member of the lacrosse team. He did not disclose that DNA from unidentified men had been found on her body and underwear.

In the New York Times story, Nifong acknowledged that he should have turned that favorable evidence over to the defense. And he said withholding that information was an oversight -- he thought he had already turned it over.

That was Nifong's third explanation why he did not turn over the evidence. At the start of a court hearing Dec. 15, he told a judge that the first he knew about the favorable evidence was two days earlier, when defense lawyers filed a motion on the matter.

At that Dec. 15 hearing, a DNA expert hired by Nifong, Brian Meehan, testified that he and Nifong agreed to withhold test results showing that DNA from the unknown men had been found. After Meehan testified, Nifong told reporters that withholding the test results from a written report was a conscious decision to respect the players' privacy rights.

......

Since May, Nifong has repeatedly misrepresented his actions in filings and in face-to-face dealings with judges. Nifong has repeatedly said that he disclosed everything about the DNA evidence.

.....

ON MAY 18, NIFONG FILED A NOTICE saying he had handed all evidence in his possession to the defense. He knew of nothing else favorable to the defendants, he wrote.

At a hearing that day, he told Superior Court Judge Ronald L. Stephens, "I've turned over everything I have."

But Meehan, the DNA expert, testified Dec. 15 that Nifong knew in April that Meehan's lab had discovered genetic material from unknown men on samples taken from the woman's body and underwear.

......

ON JUNE 22, NIFONG TOLD JUDGE STEPHENS in a hearing that he and Meehan had discussed only the contents of a report that was turned over to the defense.

Defense lawyer Joseph B. Cheshire V sounded skeptical at the time: "It's very difficult for me, although I take Mr. Nifong as an officer of the court at his word, to believe that there was no discussion at all as it relates to that testing."

Testifying on Dec. 15, Meehan said at least 33 times that he and Nifong discussed the results or agreed to keep them from the lab's final report.

ON OCT. 27, SMITH SIGNED AN ORDER THAT STATED: "Mr. Nifong indicated that he did not discuss the facts of the case with Dr. Meehan and that Dr. Meehan said nothing during those meetings beyond what was encompassed in the final report of DNA Security, dated May 12, 2006. The Court accepted Mr. Nifong's representation about those meetings and held that there were no additional discoverable statements by Dr. Meehan for the state to produce."

These in-court statements crumbled on Dec. 15, when Meehan testified that he discussed the results with Nifong and they agreed to withhold them from the report. "We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope," Meehan said.
12.24.2006 10:13pm
elChato (mail):
Ragerz, after reading the latest of your many long posts discussing the case, I was interested to know you didn't think it should be discussed on this blog.

Can we discuss <i>any </i>court cases on this blog?
12.24.2006 10:23pm
Fearmonger (mail):
Ragerz spends an awfully long time discussing an issue that he/she thinks should ONLY be discussed in front of a jury.
12.24.2006 10:27pm
Matthew Gross (mail):
Discussed in front of a jury?

Frankly, if Nifong had told the truth to the grand jury, I doubt he would have gotten so much as an indictment.
12.24.2006 11:11pm
Ragerz (mail):
elChato,


Ragerz, after reading the latest of your many long posts discussing the case, I was interested to know you didn't think it should be discussed on this blog.

Can we discuss anycourt cases on this blog?


I think discussing the various issues, including any substantive issue, that come up in the abstract is fine. I do think people should try to avoid making ultimate judgments about the case.

Ultimate judgments include the following. The accuser is a liar and the players are innocent. Nifong purposely and permanently concealed exculpatory evidence. Both of these statements might be true. Both of them might be false. One of them might be true, and the other false. They are the ultimate questions in this case. I think we owe it to our system of justice to let these questions be decided by appropriate tribunals in formal legal proceedings. We might not like the answers that these tribunals give us. As when OJ Simpson was wrongly acquitted. However, the alternative, which is equivalent to lynching, is worse than accepting the sometimes flawed outcomes of formal legal proceedings. I don't have any problem with anyone saying anything they want about these ultimate questions when the proceedings have been completed.

Notice, the broad scope of what I think is permissable to talk about is illustrated by my lengthy posts. But in them, notice that I did not take a position on what actually happened. I talked about hypothetical possibilities -- I think it is clear that I was just suggesting possibilities in how one might come up with scenarios to explain some possible discrepancies that have been mentioned.

The only people who know with certainty (as a group) what went on are the accuser and the defendants. I think we should keep that in mind in our discussions of this case and hope that the truth comes out one way or another.
12.25.2006 12:08am
Ragerz (mail):
Fearmonger,

I am not against discussing these issues. I am against the prejudice concerning the ultimate outcome that people on both sides (other than the defense attorney's) have been bringing to this case, as they try to persuade otherwise untainted third parties. Notice, in no place did I say that the lacrosse players are guilty or the Nifong is innocent of "cooking the case." Yes, I have discussed the case in detail. But I have not made any substantive judgment about ultimate issues. I have made an argument for delaying those judgments.

Mathew Gross writes:

"Discussed in front of a jury?

Frankly, if Nifong had told the truth to the grand jury, I doubt he would have gotten so much as an indictment."

If its true a grand jury would indict a ham sandwich, perhaps we should reform the system. But once an indictment has been approved by a grand jury, we should give the justice system a chance to work (or fail, as the case may be).
12.25.2006 12:19am
Ragerz (mail):
Public_Defenders writes:


I accuse you of rape. Because you have been accused of rape, your full name should be published in international media. You are not allowed to argue that you are innocent except in front of a jury, which is the only place that it is appropriate to discuss a criminal allegation.


Being indicted is an inherently very unpleasant situation to be in. Especially with extensive media coverage. I would give the defense that identifies themselves as such a little more latitude than others, because I think the public is going to discount the statements of interested parties. But I think even the defense has an obligation to ensure that these cases are not tried outsides the courtroom.
12.25.2006 12:28am
David M. Nieporent (www):
Ragerz apparently doesn't understand our criminal justice system. While the jury acts as the ultimate check on an out of control prosecutor, it isn't the job of a jury to reject a case that should never have been brought. It's the job of the prosecutor not to bring it.
12.25.2006 12:33am
David M. Nieporent (www):
I think we owe it to our system of justice to let these questions be decided by appropriate tribunals in formal legal proceedings.
We don't. Our system of justice owes us things; we don't owe it anything -- particularly the withholding of judgment.
12.25.2006 12:37am
Avatar (mail):
Honestly, I cannot agree. If prosecutors have ANY discretion - if they're not compelled to bring each complaint their office receives to a jury - they should exercise it in not bringing cases to trial where they have doubt as to the innocence of the defendants.

This isn't a minor procedural mistake. If you're dealing with a rape case, and DNA tests come back with DNA from several men, none of whom are among your suspects, isn't that kind of a central piece of evidence? At the least, it's incontrovertible that the victim was lying, and lying about important details that will make it impossible to get a guilty verdict. (Even if you assume that she honestly couldn't recall the details of the actual rape, and you're willing to accept the "was not penetrated" circumlocution, you still have, er, several other men's DNA that you need to explain somehow. Good luck on that!)

The prosecution should be able to make a judgment about the validity of the case. If the defendant has an airtight alibi, you don't put it before a jury. If the defendant was totally incapable of performing the crime (say, a double arm amputee accused of strangling), you don't put it before a jury. If you know the complainant is lying - not just "have reason to doubt the validity", if you outright KNOW - you don't put it before a jury.

So why hasn't Nifong come to the same conclusion? We know he has a lot of political capital invested in this case. Furthermore, he's at least made several statements regarding the case that are absolutely not true, including some in his official capacity in court documents. He may have reached a point of no return, where he cannot admit that he has no case without exposing himself to accusations of impropriety and the death of any political ambition he may have once had.
12.25.2006 12:48am
Roger Schlafly (www):
[Ragerz] If Nifong really did try to purposely and permanently conceal exculpatory evidence, he should be removed from office and disbarred. That is, if he was really "cooking the books." But really, this does not seem like a plausible story. ...

Notice, in no place did I say that the lacrosse players are guilty or the Nifong is innocent of "cooking the case." Yes, I have discussed the case in detail. But I have not made any substantive judgment about ultimate issues.
Yes, Ragerz the former prosecutor did make a substantive judgment about whether Nifong cooked the books. He argues here that it is not plausible, and at the same time he wants to deny anyone else the right to say that it is plausible.

Ragerz seems to misunderstand our system of justice. Nifong did everything to try this case in the press, and the American system is that the defendants can defend themselves in the court of public opinion.
12.25.2006 1:44am
Ragerz (mail):
Roger,

There is the question of whether someone should be indicted or not. Which comes first. Clearly, one has to deal with an initial plausibility hurdle, which means asking some basic questions like this.

After someone is indicted, then it is time to let the trial proceed. If after the trial and someone is presumably acquitted, we might ask whether the grand jury system gives prosecutors too much discretion in bring cases. That question is much bigger than this Lacrosse case. In the meantime, since the Lacrosse players were in fact indicted, we should accept that and not prejudge the case before it is heard by a jury.

Do I think Nifong should be indicted? I don't think there is enough evidence to support that. This is what my initial point was aimed at. Could additional evidence be produced that would change my initial assessment. Absolutely. Do I have an open mind on the merits of that question. Absolutely.

David writes:

"We don't. Our system of justice owes us things; we don't owe it anything -- particularly the withholding of judgment."

First of all, when I say we owe it to our system, obviously I really mean we owe it to ourselves. There was a time when we had a different system of lynching and de facto lynching. That system did not work to well for us.

What is lynching all about? Not withholding judgment. Why even bother with these trials if we already have all the right answers? Why don't we just hang these lacrosse players and forget about it? Because we owe it to "our system of criminal justice" or really, ourselves, to be careful and do our best to come to a correct judgment.

For the system to work properly, we need to be patient and give a case time to go through the system. This means when someone is indicted, withholding judgment and letting the jury decide.

If you want to reform the grand jury system, there are plenty of other cases that have already decided that you can use to discuss it without prejudicing an ongoing proceeding. In the meantime, these lacrosse players have been indicted for a very serious crime under a system that affects not only them, but many other criminal defendants. If prosecutors have excessive discretion to bring indictments through grand juries, this affects not merely these lacrosse players, but many other individuals. I hardly think that prejudicing their case is necessary to discuss this important issue. In the meantime, that their is an indictment in this case means we should withhold substantive judgment and avoid tainting the jury pool.
12.25.2006 4:34am
Ragerz (mail):
As my previous post illustrates, editing can be good for comments. There are some nasty grammatical errors.
12.25.2006 4:36am
Ragerz (mail):
Avatar,

If you think these lacrosse players should not have been indicted, I think your issue is with the grand jury system in general, not merely this particular case. In North Carolina, a jury doesn't see the case at all until a grand jury issues an indictment. If a prosecutor wants to bring a case, he can't do it unless a grand jury issues an indictment.

I am totally open to issues anyone wants to bring up concerning the grand jury system in general. But, once an indictment is brought under whatever system chosen, we should not prejudice that particular case.
12.25.2006 4:47am
American Psikhushka (mail) (www):
Ragerz-

I am totally open to issues anyone wants to bring up concerning the grand jury system in general. But, once an indictment is brought under whatever system chosen, we should not prejudice that particular case.

Wrong. We're supposed to have a free press and free speech in this country. The public and press are to a degree supposed to observe the courts and police them. It's one of the reasons why the framers of the Constitution specified a public trial - so it can be observed and therefore cut down the chances of corruption, misconduct, incompetence, etc.

So once something is made public it is legitimate to comment and give one's opinion on it. If the prosecution in this case can defame the defendants in public the public can also use the evidence and testimony presented in court to show that he has no case, the defendants are innocent, and that apparently he has committed perjury and possibly other serious felonies to supress and hide damaging evidence.
12.25.2006 5:10am
markm (mail):
If the standards Ragerz uses in evaluating Nifong's conduct were applied to normal suspects, the only people in prison would be the ones who turned themselves in.
12.25.2006 5:48am
markm (mail):
As for fading memories and eyewitness identification: It's quite a good argument for reforming the legal system so cases can come to trial far more quickly, but it's irrelevant to this case. When it takes three lineups, and the third lineup is suspects only, for the witness to make an ID, she's just guessing.
12.25.2006 5:52am
PaulD (mail):
What is wrong with discussing a case on the blogs? I think it is particularly helpful in bringing public pressure to bear on a prosecutor who appears to be out-of-control. From my reading of the pleading in this case, it appears that most of the operative facts regarding the prosecutor's misconduct are undisputed. So this doesn't involve people speculating regarding contested evidence. Simlarly, most of the evidence regarding the innocence of the LAX players appears to be undisputed. So I would argue that it is not only appropriate, but a positive good for the actions of the prosecutor to be under intense public scrutiny and discussion. One of the core purposes of the First Amendment is to allow the public to check the power of public officials through open and rigorous debate and scrutiny. This is exactly what is happening in the Duke case and to me it is an example of public discourse at its best.
Obvously in the end a decision will need to be made by within the legal proceeding. But I don't see why public discussion is in any way innapropriate.
12.25.2006 9:00am
PaulD (mail):
I would add to the above comment that the prosecutor in this case has not at all been reticent about discussing it in public forums and making this case a prominent part of his political campaign. In light of his conduct, I think it is very disingenous to suggest that his critics are out of line to discuss the case in forums outside of the legal process.
12.25.2006 9:22am
SP:
Yes, Ragerz, let's have a trial when there is absolutely no evidence just to show that the system works. I am sure the three defendants really appreciate that sentiment. BTW, Ragerz, what evidence IS there? Because it sure doesn't seem like there is any.
12.25.2006 11:19am
not byin' (mail):
To the issue of IDs:
You also have someone's opinion, the words or the details they use to describe a person, words which another person might not use or say.

For example, I looked at the defense and lacrosse photos of Evans and he does have what I'd call a moustache. He is dark-haired and has propensity to a five o'clock shadow big time, especially later at night.

I was on a jury where the defense tried to makes the same moustache/no moustache argument (with a female police officer) and it just upset all the women on the jury.

Look there is a solid defense case. They don't need all the extraneous stuff. If defense lawyers get too heavy handed (whether in the press, as they are now, or in the courtroom), they could lose a jury.
12.25.2006 11:54am
PaulD (mail):
Well I've looked at images of Evans and I don't see a moustache. If you are saying that all dark-haired caucasians can be described as having a moustache, I guess you might have a point.
12.25.2006 1:18pm
Roger Schlafly (www):
Ragerz, I do not have to accept three innocent boys being prosecuted for a crime that they obviously did not commit. I do not have to keep an open mind when I see overwhelming evidence that Mangum's accusations are false. I have seen enough to conclude that Nifong has not behaved as a prosecutor should. And most of all, the American system is the the justice process is public, and I think that people should speak up when it is malfunctioning.

I think that the Duke lacrosse lawyers have a duty to trash Nifong publicly at every opportunity. It is an absolute necessity for them to properly defend their clients.
12.25.2006 4:27pm
Ragerz (mail):
"I think that the Duke lacrosse lawyers have a duty to trash Nifong publicly at every opportunity. It is an absolute necessity for them to properly defend their clients."

The defense attorney's have a duty to the court and the system as well as to their client. If their actions make a fair trial impossible, they should join their clients in jail.
12.25.2006 4:50pm
American Psikhushka (mail) (www):
Ragerz-

The defense attorney's have a duty to the court and the system as well as to their client. If their actions make a fair trial impossible, they should join their clients in jail.

First of all there is a free speech issue here - if any member of the public or the media can make statements, so can the attorneys.(Although the attorneys are constrained by certain procedural and ethical rules.)

The other thing is why are you focusing on the defense attorneys? What about when the prosecution makes defamatory statements "making a fair trial impossible"? Should the prosecutors go to jail? This is just the prosecutor's job, but the defendant's freedom and basically lives are on the line. (Although with some of the recent actions, the prosecutor may have more at risk now.)
12.25.2006 6:40pm
American Psikhushka (mail) (www):
Correction: Should be "defendants'" above.
12.25.2006 6:41pm
Ragerz (mail):
American Psikhushka writes:

"First of all there is a free speech issue here."

Ensuring a fair trial sounds like a compelling government interest to me.

American Psikhushka asks:
"What about when the prosecution makes defamatory statements 'making a fair trial impossible'? Should the prosecutors go to jail?"

Yes.
12.25.2006 8:54pm
Roger Schlafly (www):
[Ragerz] Ensuring a fair trial sounds like a compelling government interest to me.
UK, Canada, and other countries have laws against publishing comments about a pending prosecution. If you want laws like that in the USA, then I suggest that you write your congressman. In the meantime, it is completely legal and proper in the USA for an accused rapist to hire lawyers and others to present evidence of his innocence to the public, outside of court. And I am free to draw my own conclusions without waiting for the jury.
12.25.2006 11:38pm
Aaron:
Ragerz, there are many ways to derail a case prior to trial, even post-indictment. There are suppression motions and motions to dismiss, prior to trial. The quality and quantity of the evidence (or lack thereof) must be evaluated in deciding these motions. Therefore, it is entirely appropriate to discuss evidentiary and procedural issues prior to trial. This is not "prejudicial"; it is the normal workings of the justice system.

Furthermore, I take umbrage with your position that criticizing the prosecutor is somehow "prejudicing" this case. Prosecutors are political officers and public servants; we the people are guaranteed the right to comment on the performance of the people that we elect to serve us; in fact, it is the resposibility of every citizen to be ever vigilent to ensure that that the power that prosecutors wield in our name is used judiciously and properly. To abrogate that responsibility, and to stay silent when apparent abuses of that power are occurring is far more abhorent than any so-called "prejudce" that you may feel is being introduced into the case.
12.26.2006 12:03am
cathyf:
The only people who know with certainty (as a group) what went on are the accuser and the defendants.
There is significant evidence that the accuser does not, in fact, know. She had suffered a minor back injury a few days before, and she took an appropriate dose of muscle relaxant. She also had, reportedly, one or two drinks. Neither of which would have, by themselves, caused significant side effects, but when combined are well-known to cause severe intoxication.

So the evidence is that she (probably accidentally) drugged herself so heavily that she does not, in fact, know what happened.
12.26.2006 12:49am
Toby:

Do I think Nifong should be indicted? I don't think there is enough evidence to support that.

Hmmmm

In North Carolina, a jury doesn't see the case at all until a grand jury issues an indictment. If a prosecutor wants to bring a case, he can't do it unless a grand jury issues an indictment.

And who presents (and chooses to present) what information to the Grand Jury?

It is clear to all but the most credulous that the evidence that Nifong deliberately lied to the grand jury is much greater than any evidence that any of the Lacrosse players were involved in anything worse than rude behavior and a commercial dispute with a stripper over whether arriving to drunk to stand up can be considered a performance worthy of payment.

As tho why would he lie? Well without being inside his head, a requirement that Ragerz appers not to require for Duke boys, one can only speculate that it sure fits his triangulation of the Women' vote and the Black Vote in the primary.

Nifong has openly sold the decisions to prosecute minor crimes (or rather to not prosecute) based on donations to his favorite charity for years. I cannot imagine why someone things anyone should reach to far to presume that he is merely continuing his long-standing inability to distinguish his personal desires and The Law.
12.26.2006 11:12am
David Chesler (mail) (www):
Defendant Collin Finnerty lost his eligibility for pre-trial diversion for a November 2005 Georgetown simple assault when he was arrested. (He was to have gone on trial over the summer.) Any news on if that trial went forward, and its results? (Some of the press has called the assault gay-bashing, and reports suggest Finnerty and his friends threw the first punch, although it seems the precipitating event was Bloxham's telling Finnerty what Finnerty could or could not say about Bloxham.)

In retrospect it makes as much sense to take a plea deal based on not getting arrested in the next six months as to base it on there not being a 10-inch snowfall in the next six months: Both are somewhat random events with very large components out of the control of the person making the bet.
12.26.2006 12:13pm
Disenfranchised Jets Fan (mail):
"The defense is crying about not receiving the results of the DNA test promptly enough. But they did receive plenty of time before trial. I don't think the preparation of their case has been substantively damaged here. Yes, Nifong should have released them sooner. But this is a minor issue not going to the substance of what happened on that day."

Good grief where to begin, to start I'll ignore the prejudicial use of the term "crying" and just focus on the substance.

In April/May Nifong and Meehan knew that not only did the results of the DNA testing show that the named defendants' DNA were not positive matches, but also that there were multiple positive matches from unknown male sources. For reasons that people may speculate, Nifong and Meehan decided not to disclose the latter. It took a motion in September (which Nifong fought in court) and another distribution of discovery in October in order to get that information which the defense was entitled (by North Carolina law) to months earlier.

I'm not sure which arguement is weaker, that the delay didn't damage the defense or that the discovery was a "minor issue not going to the substance of what happenedon that day." Actually strike that, the latter is a really ridiculous argument, but at any rate:

1) With respect to the delay, in the interim period one of the named defendants (seligmann) filed a motion for the prosecution to produce a Bill of Particulars to describe in more detail the state's case (or lack thereof). In said motion the request was backed by some exculpatory evidence, such as the lack of DNA and potential alibi evidence, but what wasn't presented was the additional multiple DNA material that was found on the alleged "victim" in multiple orifices. The judge ruled that it was premature to grant the motion, but had the judge known about the additional DNA evidence (which the motion would most certainly have included had the DA followed the law and provided it to the defense) its not unreasonable to believe that his ruling may have been different. The presence of other DNA is the most exculpatory evidence yet per 2) below....

2) How anyone can say that the additional DNA evidence is a "minor issue" blows my mind. The alleged crime involved three men savagely and brutally attacking a woman..sweat, blood, semen (the alleged "victim" claimed one of the named defendants ejaculated in her mouth) and other material would certainly yield some DNA material. Yet none was found. One could argue that intervening circumstances could explain the lack of DNA on the woman (e.g., showering). But with the revelation that other, multiple sources were on her person in the same places you'd expect to find DNA of the named defendants, such circumstances are proven to be false. In other words, it is impossible for any of the named defendants to have touched this woman. Not only is it not a "minor issue" its the key issue. If Nifong really believed this woman is a victim of a crime he should focus the investigation on the sources of the DNA that was found.
12.26.2006 1:02pm
Q:
Anyone who doesn't agree that this case should NEVER go to trial and that Mike Nifong should be in jail is a stone-cold moron. It's really that simple. Here's a great post that details why this case is a total fraud. I would love to see Ragerz defend the charges brought against these young men. What? Oh that's right, you can't!

http://forums.talkleft.com/index.php/topic,311.0.html
12.26.2006 6:43pm
Harry Eagar (mail):
If Ragerz' argument were to stand, then groups such as the Innocence Project would not be free to operate.

After all, in those cases, not only did a grand jury indict, but a petit jury convicted. The machinery of justice had its way. Who are the Innocence Projecters to ask questions now?
12.27.2006 1:51am