Lying whore.

[Contrapuntal]

Nifong has ganted an interview to the NYT. Intersting stuff. Among other things, he claims the phot array was not an improper lineup because it was not a linup at all. He also seems to be shifting the burden of continuing the prosecution onto the accuser, essentially washing his hands of the whole mess. KC Johnson, as usual, has a great anaylisis.

Apparently in reward for its steadfast support of his cause, Nifong granted a three-hour interview to the Times on Thursday. (He did not explain why this interview was procedurally justified when he has claimed in recent months that the state bar’s ethics rules preclude him from commenting on the case: by his own definition, then, his sit-down with the Times violated his ethics obligations.)

In the interview, he appeared to be losing touch with reality.

1.) Retreating to a line he last used at the NCCU forum on April 11, Nifong claimed that if the accuser makes an identification, no matter how non-credible, “I have an obligation to put that to a jury.”

This statement not only misrepresents both North Carolina law and the canons of the bar's ethics code (which requires prosecutors to exercise discretion in cases they try), but it contradicts Nifong's own record, in which he has dismissed rape charges even when the accuser could identify her alleged assailants.

2.) Nifong asserted that people need not worry about the apparent doubts the accuser expressed in the April 4 lineup. “You can’t always tell from a photograph,” said he. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Under this conception of justice, innocent people by the thousands would be charged, on the off-chance that accusers could identify them in court--when, of course, they're conveniently sitting at the defense table.

Moreover, if Nifong believes that personal identifications are so superior to photographic ones, why didn't he conduct a live-lineup session rather than a photo ID array in April? All 46 lacrosse players were in Durham, and so assembling them at the police station--with, of course, appropriate fillers==would have posed no problem for Nifong.

3.) The April 4 lineup poses no procedural problems, claimed Nifong--because it wasn't a lineup. “What is a lineup?” he mused. “What if I have no idea who did the assault?” Of course, in court papers filed on March 23, his office already had identified the 46 white lacrosse players as suspects.

Under this conception of identification procedures, due process protections would be meaningless: the police (or, in this case, the prosecutor acting as personal supervisor of a police investigation) could orchestrate a rigged lineup, and then simply engage in a philosophical debate about “What is a lineup?”

6.) Although extreme, what we witnessed yesterday conformed to a general pattern evident for months of Nifong manipulating evidence to fit his desired outcome.

Think back to late March. Until March 29, when it appears he heard back from the state lab that no matches existed to lacrosse players, Nifong publicly, and repeatedly, maintained that DNA would identify the guilty parties and exonerate the innocent. Once the tests came back without matches, the DA announced his willingness for the “good old-fashioned way” of eyewitness ID’s, without forensic corroboration.

Or consider the length of the attack. In springtime police statements, the attack lasted 30 minutes. Once Reade Seligmann produced unimpeachable electronic evidence showing he couldn’t have participated in an attack lasting 30 minutes, the DA speculated that the attack lasted between 5 and 10 minutes, since “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.”

This blog is entitled Durham-in-Wonderland because everything about this case is upside down. Nifong decided the outcome—he would charge the players with a sexual offense—and has repeatedly, and shamelessly, manipulated the evidence to fit his desired outcome, rather than allowing the outcome to be shaped by the evidence.

Used with permission.

Link to KC’s blog.

Linkto NYT article. (Registration may be required.)

[Unauthorized_Cinnamon]

@wring

IF it runs the same in this case, then her prior inconsistent statements would NOT be able tobe introduced by the defense

It’s been a while since Evidence, but generally aren’t you allowed to impeach a witness with prior inconsistent statements? I understand not allowing prior sexual behavior into evidence, but when your main (or only) witness’s truthfulness needs to be assessed by a jury, it is accepted that they can hear about the person being a habitual liar and certainly that they’ve made several, all mutually inconsistent statements about the facts at issue, right?

. . . Ah, here’s what I’m thinking of:

@Federal Rules of Evidence

Rule 613. Prior Statements of Witnesses. . .
(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

Now, NC does not include part (b) of the rule in its code. So it’s not clear to me if that simply leaves the court open to extrinsic evidence, since 613(b) is really a limitation on admission, rather than an explicit allowance of admission.

[HubZilla]

If only Nifong had looked at how rare white on black rape is…

[SnakesCatLady]

What are the chances this bitch will be charged with making false statements? I’m sure she doesn’t have anything for the guys to get in a civil suit.

[wring]

@Contrapuntal

North Carolina’s Open Discovery Law requires the prosecution to turn over its entire file to the defense. This file includes all of the police reports, as well as the victim’s hand written statement. They are now evidence in the case at hand. Now, I cannot predict the future, but the defense attorney’s seem pretty sharp to me. If the witness takes the stand, which she must for the trial to proceed, she will be put under oath, at which point she will be compelled to confront the evidence of her statement, and confirm or deny it.

Similarly, if any police officer is put on the stand, his report in its entirety will be intruduced as evidence.

The reports themselves are full of inconsistencies. How, exactly, do suggest that only the parts favorable to the prosecution will be allowed?

What I am saying to you is that (and said several times now):
Disclosure to the defense does not equal admissability in court. Sharpness of defense attorney, etc does not mean shit. ** Admissability (in court) **of the prior statements is not a foregone conculsion. As I stated several times, in the case I watched, the victims statement(s) were the only evidence, the attorney had all of the copies of the statements and was prevented by law, from admitting them at trial. He was able to show the statement to the witness and ask very narrow questions about it, but the statement itself was not allowed to be admitted, so the jury never heard her substantial changes from statement to statement, was never allowed to hear the discrepancies or contradictions. IIRC, one of the issues was that the prior statements were not under oath, may have been transcribed incorrectly etc.

I am suggesting that neither you nor I practice law in that state, but that my experience where stuff the average person would have thought to be ‘obviously’ admissable in court, so that the witness would be confronted by the discrepancies, did not happen and may actually happen also in this case. I don’t know, but I"m not assuming that the prior statements will be introduced as evidence.

again - there is a very large difference between something that’s disclosed to the defense attorney and something that is allowed to be admitted at trial. and** if **the prior statements are excluded, it would be very difficult for the attorney to question her about the differences, since they wouldn’t be admitted as evidence

In any event, it’s the holidays, I’m at the inlaws and won’t be able to participate much more, and more to the point, if you’re still unclear about what I’m saying here with this post, I don’t believe it would be possible to get you to understand the differences, and/or have no additional interest in getting you to see it. If I’m correct and the prior statements are disallowed in court, we’ll see you in here stomping your foot about how could it be possible.

Or maybe a lawyer type who knows that jurisdictions rules about admissability of evidence could help.

in any event, again, I believe that the guys involved were just random guys at that party, that her story has holes a battleship could float through side by side w/Tom Cruise’ ego.

[Contrapuntal]

@wring

As I stated several times, in the case I watched, the victims statement(s) were the only evidence, the attorney had all of the copies of the statements and was prevented by law, from admitting them at trial.

What law?

Did you read Cinnamon’s post?

[wring]

did you read mine? apparently not.

@me

IIRC, one of the issues was that the prior statements were not under oath, may have been transcribed incorrectly etc.

I am suggesting that neither you nor I practice law in that state, but that my experience where stuff the average person would have thought to be ‘obviously’ admissable in court, so that the witness would be confronted by the discrepancies, did not happen and may actually happen also in this case. I don’t know, but I"m not assuming that the prior statements will be introduced as evidence.

Cinnamon’s post used federal regs which suggested that I could be correct, then merely states that the state in question doesn’t have such wording. I don’t know that this poster claims to be an attorney in that jurisdiction, or is familiar w/case law in that state.

In any event - you seem to be insisting that you see no reason why it wouldn’t be admissable,and I see that there may be reasons it might be (not the foremost of which is that the district attorney is still going forward w/the charges )- I would suggest to you that IF such statements were routinely allowed into evidence, that even the most incompetent of defense attorneys would win an acquital in this most publicized and newsworthy trial. And I see no evidence which would suggest that Nifong intends career suicide by loosing a slam dunk like that.

[Contrapuntal]

@wring

IIRC, one of the issues was that the prior statements were not under oath, may have been transcribed incorrectly etc.

So all a defense attorney has to do is question the transcription and a police report will get thrown out? Are you serious? Only statements that are made under oath are admissable in court? Don’t be an idiot. If that were the case, no confession would ever be allowed. Is that how you think the law works?

Do you really think that a complaining witness can change her story as many times as suits her purposes, and have the final version be the official one, because it was uttered under oath? Why even have a cross-examination, if her story is to be unchallenged?

In any event - you seem to be insisting that you see no reason why it wouldn’t be admissable,and I see that there may be reasons it might be (not the foremost of which is that the district attorney is still going forward w/the charges )

He is going through with the charges because he is an unethical idiot who is trying to save his skin, not because he thinks he has a chance to win, or because some imaginary law exists that allows a witness to change her story whenever it suits her. He’ll drop them soon enough. See below.

I’ll ask again, what law prevented prior statements from being introduced in a trial where the credibility of the witness was the crucial element of the trial?

I have read extensively about this case. I have read the opinions of everyone from uninformed passers-by, to practicing defense attorneys and prosecutors, to retired judges. **No one **has even *suggested *that her handwritten statement to the police, or the reports of the investigating officers, would be inadmissable. Why in the world would you think differently? Do you suppose that she will be allowed to to accuse three men of kidnapping and sexual assault and be unchallenged on cross? That the defense will just take her word for it? That, in the absence of *any physical evidence *at all, her word will suffice, when her word is the very point in contention? The only evidence that might be disallowed is the DNA evidence, and I am not convinced that a good attorney will be stymied there.

I would suggest to you that IF such statements were routinely allowed into evidence, that even the most incompetent of defense attorneys would win an acquital in this most publicized and newsworthy trial. And I see no evidence which would suggest that Nifong intends career suicide by loosing a slam dunk like that.

Huh? Are you suggesting that all witnesses tell a dozen different stories to the police? That they hand write five pages in graphic detail and then forget exactly what happened?

There will be no acquittal. It will never come to trial. And Nifong committed career suicide about nine months ago. He is just delaying the inevitable. See this brave quote, from a NY Times interview. Link. (Registration may be required.)

“I have told the defense attorneys that if at any time the victim in this case tells me that she thinks that one of these people who have been identified was not her assailant, as soon as she tells me that, then that case will go away,” he said. “I’ve said I’m not interested in prosecuting somebody that’s innocent. But until she tells me that, until she tells me these are not the right guys, we’re prosecuting this case.”

He is throwing her to the wolves. And his justification for this is as false and base as his heart.

“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.”

Patently untrue. From KC Johnson’s blog, used with permission.

The relevant section from the North Carolina general statutes is § 15-144.1 of the criminal procedure code, “Essentials of bill for rape.” Its section (a) states the following:

*In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.*

This provision lays out a minimum standard, stating that (a) grand juries can indict and (b) juries can (not must) convict a defendant in rape cases solely on the basis of the accuser’s claims and her identification of the defendant. In the era before widespread use of DNA, many, if not most, rape cases amounted to the accuser’s word against that of the accused. This provision contains nothing particularly remarkable.

The provision places no requirements, of any sort, on the prosecutor. Nowhere in its wording does it say, as Nifong asserted at NCCU, that district attorneys “must go to the jury” in cases where an accuser has claimed to identify her alleged assailants. This provision is the only one in the criminal code that even remotely addresses the argument that Nifong laid out at NCCU.

While Nifong was, therefore, misrepresenting the North Carolina general statutes at NCCU, he also was ignoring (not for the first time) his requirements under the North Carolina Code of the Professional Responsibility. Far from requiring district attorneys to bring charges in any and all complaints, the code specifically obligates prosecutors to exercise discretion. Section 3.8, comment 2 couldn’t be clearer on this point: “The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute.” Indeed, “a systematic abuse of prosecutorial discretion could constitute” misconduct in and of itself.

[wring]

@Contrapuntal

So all a defense attorney has to do is question the transcription and a police report will get thrown out? Are you serious? Only statements that are made under oath are admissable in court? Don’t be an idiot. If that were the case, no confession would ever be allowed. Is that how you think the law works?

Do you really think that a complaining witness can change her story as many times as suits her purposes, and have the final version be the official one, because it was uttered under oath? Why even have a cross-examination, if her story is to be unchallenged?

He is going through with the charges because he is an unethical idiot who is trying to save his skin, not because he thinks he has a chance to win, or because some imaginary law exists that allows a witness to change her story whenever it suits her. He’ll drop them soon enough. See below.

I’ll ask again, what law prevented prior statements from being introduced in a trial where the credibility of the witness was the crucial element of the trial?

I have read extensively about this case. I have read the opinions of everyone from uninformed passers-by, to practicing defense attorneys and prosecutors, to retired judges. **No one **has even *suggested *that her handwritten statement to the police, or the reports of the investigating officers, would be inadmissable. Why in the world would you think differently? Do you suppose that she will be allowed to to accuse three men of kidnapping and sexual assault and be unchallenged on cross? That the defense will just take her word for it? That, in the absence of *any physical evidence *at all, her word will suffice, when her word is the very point in contention? The only evidence that might be disallowed is the DNA evidence, and I am not convinced that a good attorney will be stymied there.

Huh? Are you suggesting that all witnesses tell a dozen different stories to the police? That they hand write five pages in graphic detail and then forget exactly what happened?

There will be no acquittal. It will never come to trial. And Nifong committed career suicide about nine months ago. He is just delaying the inevitable. See this brave quote, from a NY Times interview. Link. (Registration may be required.)He is throwing her to the wolves. And his justification for this is as false and base as his heart.Patently untrue. From KC Johnson’s blog, used with permission.

all I can do is tell you again that in the case I observed, where credability of the complainant was essential, her original statements to ANYONE, including the police were excluded by the judge. The only reason I heard was that the prior statements were not made under oath, and the witness could have been misunderstood, misinterpreted or whatever.

but ya know what? I don’t give a shit if you believe me.

I don’t believe this witness. But I also don’t believe that Nifong would be continuing the case if you’re correct - any first year law student would be able to secure an acquital if you’re correct. and I don’t see any reason to believe that Nifong is intentionally committing career suicide.

[Contrapuntal]

@wring

all I can do is tell you again that in the case I observed, where credability of the complainant was essential, her original statements to ANYONE, including the police were excluded by the judge. The only reason I heard was that the prior statements were not made under oath, and the witness could have been misunderstood, misinterpreted or whatever.

In your jurisdiction, are confessions not made under oath admissable in court?

I don’t believe this witness. But I also don’t believe that Nifong would be continuing the case if you’re correct - any first year law student would be able to secure an acquital if you’re correct. and I don’t see any reason to believe that Nifong is intentionally committing career suicide.

Many many people have wondered why Nifong even took the case to the gand jury, considering how weak it is. It is becoming more and more clear that he did it to curry favor with the Black voters in Durham. Many many people believe that he never had any intention of bringing it to trial; that he knew or suspected that the complaining witness was lying and that she would never agree to testify.

He is going forward because he is an unerthical, self-serving bastard. The fact that “any first year law student would be able to secure an acquital” is what many many of us have been saying all along. Nifong’s litany of prosecutorial misconduct is as long as my arm. It has been thoroughly detailed in this thread, as well as others. If you like, I can point you to it, both here, and other sources.

The case will never come to trial. It does not matter what the pertinent statutes say in NC. He will never be forced to confront them. The witness will decline to testify, and he will shrug is shoulders and move on. To assert that the laws must disallow her prior statements because if they do not, Nifong would lose, and to further assert that you know this because Nifong would not put his career on the line for such a poor case, is to use a logic with which I am not familiar. He is in absolutely no jeopardy of having her multiple accounts of the night in question read into the court records; not because statute prevents it, (can you *really *believe that?), but because a trial judge will never hear the case.

He has been manipulating this in order to serve his own purposes from Day One, and continues to do do.

[Unauthorized_Cinnamon]

Well, despite the fact that I’m a member of the NC bar, I’m afraid I can’t cast too much light on this issue, as I never had it come up when I (briefly) practiced criminal law, and I don’t have the facilities to search case law from here.

However, wring, I am surprised by what you are describing. Not that I don’t believe you - I do. I’m just wondering what legal basis underlay the judge’s decision. It seems out of this world that that kind of exculpatory evidence could be excluded. Do you mind sharing what state this was in? I’m all curious now.

And of course, it’s always possible that a trial judge might totally ignore or mangle the applicable law in his ruling. Hell, one of my cohorts in the criminal practice clinic witnessed a judge tell a defendant to get out of his city by sundown! Judges can be as crazy as the next guy.

[Bricker]

@wring

all I can do is tell you again that in the case I observed, where credability of the complainant was essential, her original statements to ANYONE, including the police were excluded by the judge. The only reason I heard was that the prior statements were not made under oath, and the witness could have been misunderstood, misinterpreted or whatever.

but ya know what? I don’t give a shit if you believe me.

I don’t believe this witness. But I also don’t believe that Nifong would be continuing the case if you’re correct - any first year law student would be able to secure an acquital if you’re correct. and I don’t see any reason to believe that Nifong is intentionally committing career suicide.

Well, chalk me up as another former criminal defense attorney - with more than a brief period of practice - that cannot quite guess at why the judge in the case you describe would have ruled the way you say he did. Is it possible that there were other factors you were not privy to that could have been the predicate for the ruling?

A statement made out of court and offered as evidence in court for the truth of the matter asserted in the statement is hearsay, and presumptively inadmissible. In this situation, though, it’s not even necessary to examine which of the many hearsay exceptions might apply, because the statement would not be hearsay at all: it would not be offered for the truth of the matter asserted. In stead, it would be offered to show that an inconsistent former accusation was levelled. If there were no other factors involved, then excluding the statement would be serious, well-nigh reversible, error.

[Contrapuntal]

@Unauthorized Cinnamon

However, wring, I am surprised by what you are describing. Not that I don’t believe you - I do. I’m just wondering what legal basis underlay the judge’s decision. It seems out of this world that that kind of exculpatory evidence could be excluded. Do you mind sharing what state this was in? I’m all curious now.

According to post one thousand, four hundred and seventy-seven, it is Michigan.

[Unauthorized_Cinnamon]

OK, I may have found an answer. MI law excludes statements made by the victim to a sexual assault counselor:

Section 600.2157a
REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961

600.2157a Definitions; consultation between victim and sexual assault or domestic violence counselor; admissibility.

. . .
(2) Except as provided by section 11 of the child protection law, Act No. 238 of the Public Acts of 1975, being section 722.631 of the Michigan Compiled Laws, a confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim.

http://www.legislature.mi.gov/(S(fjdbfdjvh0pnm02lxlmem155))/mileg.aspx?page=getObject&objectName=mcl-600-2157a&highlight=evidence

[Contrapuntal]

@Unauthorized Cinnamon

OK, I may have found an answer. MI law excludes statements made by the victim to a sexual assault counselor:http://www.legislature.mi.gov/(S(fjdbfdjvh0pnm02lxlmem155))/mileg.aspx?page=getObject&objectName=mcl-600-2157a&highlight=evidence

**wring **has said all along that statements to police were excluded.

[Rick]

Thirty pages, and just shy of 1500 posts. Is this the longest pit thread ever?

FWIW in every trial where I have been a juror, prior statements to the police or depositions were admitted.

[Dr.Lao]

“You have the right to remain silent. Anything you say can be used against you in a court of law…”

[John_Carter_of_Mars]

@Dr. Lao

“You have the right to remain silent. Anything you say can be used against you in a court of law…”

BINGO!

[Contrapuntal]

@John Carter of Mars

BINGO!

To be fair, **wring **is talking about a witness, not a suspect. I still don’t understand what was going on in that courtroom, however. As **Bricker **suggests, there is probably something else we don’t know.

[wring]

MI jursidiction. The defense attorney was allowed to show the complainant the statement(s) made to the police and allowed to ask questions like “is that what happened” and the complainant would say “no, it happened this way”, defense attorney was not allowed to quote/cite/present the original statement to the cop, the second statement to the cop, the third etc etc etc where there were huge discrepencies (much like what is happening in the Duke case). It went much like the quote given about federal law, in post 1482.

as that case turned out, however, the complainant gave additional huge discrepencies during her sworn testimoney in court.

but I was startled to find that the original statements to the police were NOT going to be able to be introduced as evidence, similar to what post 1482 suggested. It seemed to go against my ‘common knowledge’ type assumption of how things would proceed, and made me very concerned about how any male could possibly protect themselves against outrageously false accusations. how on earth could any male defend themselves against a statement from a female “he touched me there”?