No offense, but I can neither make head nor tail of this. Are you saying that the defense could point to the statement and question the witness as to its accuracy without reading the statement into the record? If he could not quote/cite/present the statement, how in he world did the jury know what he was talking about? Or anyone else, for that matter?
yes. that’s how it was
they didn’t. which is why they didn’t know that she was changing her story. which is what I was concerned about for the Duke case.
I’ve explained this before. and frankly, I don’t feel like dealing w/it again. If you don’t understand what I witnessed, so be it. I don’t recall the specific law cited (and it may not have been cited in open court), but it was along the lines as was explained about the federal law about witness statements and so on that was quoted before.
The Duke case will probably go to court (I don’t see Nifong dropping it, and certainly the players are not liable to take any kind of plea). With all the publicity, I doubt there will be potential jurors who won’t know that she changed her story substantially (Unlike the case I witnessed where there was no pre trial publicity at all). But it will be interesting what portions of prior statements will be allowed, if any.
This is just bizarre. The defense and the witness have what amounts to a private conversation? He points to a line of text and she either confirms, denies, or alters it? All without the judge or jury having any idea what they are talking about? It’s Kafkaesque.
I do not doubt that you believe what you say is true. It just beggars the imagination, is all I am saying.
Why would it be? Why bother with any rulings at all? Nobody knew what anyone else was talking about anyway.
He will have to drop it if she refuses to testify. Let’s see what happens February fifth, when she is scheduled to take the stand.
May have posted this long ago, but it seems timely again:
http://www.ncbar.gov/PDFs/22.pdf
http://www.ncbar.gov/public/filing.asp
Any member of the public may file a grievance based on a violation of the Rules of Professional Conduct. I’ve done so and would encourage anyone else disgusted by Nifong’s conduct to consider it as well.
For starters:
I don’t know - if they could come up with twelve people who would let OJ off in LA, I doubt NC is going to be any better.
And in a county where Nifong’s kind of shenanigans tend to help him win elections, I can’t believe he could be convicted of anything there either.
What a clusterfuck. Is there any chance at all of some reasonable judge dismissing all charges against the players with prejudice, so they can’t be refiled? Nifong isn’t going to act honorably - isn’t the mechanism of the court sufficient so they will?
Regards,
Shodan
shodan:
In most jurisdictions, it is within the inherent (or rule-granted) power of a court to dismiss a bogus (not the technical legal term) case of its own volition.
Potential problem: district judges in N.C. are elected officials, just as are the prosecutors. It isn’t immediately clear that a Durham judge, elected by the same mob that rewarded Nifong for his dirty tricks, would have any more integrity or courage in sticking his neck out on this one. From what I’ve read of the motion practice, etc., there’s been no mention of the judge scolding Nifong when opportunity richly afforded for such a dressing-down.
And yes, such commentary from a judge would be neither at all uncommon nor necessarily improper – the requirement of judicial impartiality does not require judges to refrain from tipping their hand when a party’s position appears untenable from the outset, a la “Mr. Jones, I’ll let you bring your motion, but I have to tell you I am not likely to be persuaded by your position.” And from talking to my friend the assistant DA, most judges are customarily significantly tougher in such commentary on the prosecution than on the defense (whether out of liberalism or an abundance of concern for due process).
So – if the judge here has not made such comments, in the face of egregious prosecutorial misconduct, that’s already suggestive that defendants might not look for too much early help from that quarter . . . .
My extensive legal training (consisting of watching old Law and Order reruns on cable) tells me of a motion from the defense for a directed verdict of Not Guilty that is automatic or nearly so.
Is this the case in NC?
And how can the defense be sure that Nifong isn’t withholding other evidence, as he did the DNA results? Can’t he be recused for malpractice?
The complaining witness hasn’t a scrap of credibility, and there doesn’t seem to be any other evidence.
I mean, WTF?
Regards,
Shodan
Sure, the defense (in either a criminal or civil case) can and almost always does move for a directed verdict at the close of the plaintiff’s/prosecution’s case in chief. The notion is: “Is that all you’ve got? You didn’t even carry the burden of establishing a prima facie case, so I don’t even need to rebut it.”
I doubt N.C. is any different, and it probably permits this. However, it’s comparatively rare for these motions to be granted. So again, it’s a wild card, in the hands of the judge. And, this is dependent on going all the way to trial, by which time the “victim” may conceivably have cleaned up her story, and a politically-cowardly judge might say, “well, it’s a credibility issue, I’d better let that go to the jury.”
Earlier on in this case, several hopeful posters suggested that we hadn’t seen the whole picture because the prosecution presumably had some killer evidence up its sleeve. I explained that in real life criminal prosecutions, this really isn’t feasible, because the rules of evidence and ethics require the prosecution to turn over all evidence to the defense at an early stage. Thus, I explained, there really isn’t such a thing as a dramatic bombshell piece of evidence (at least for the prosecution) emerging at trial. Well, I may have been overly naive, because I didn’t imagine Nifong would have the audacity, for many more months, to withhold clearly-exculpatory information (regarding the non-matching DNA having been suppressed). Most certainly, anything he has left (I now put nothing past him, and would not bet five cents that he has emptied the bag even now) is exculpatory – their cannot be any inculpatory evidence (and if there were, it would be excluded at trial if produced only now).
Kool-Aid drinkers (like this deluded blogger) take the DA’s and Grand Jury’s lack of any evidence as a perverse dog-that-did-not-bark-in-the-night proof that there must be something really good for the prosecution out there – because otherwise " If the case was as groundless as they claim, then the grand jury and/or the judge would have intervened."
Wrong. Judge Sol Wachler famously remarked that (even in liberal New York) a Grand Jury “would indict a ham sandwich.”
Your WTF succinctly sums up the problem here: this shouldn’t happen, but it can, when prosecutors abuse their discretion, as Nifong grossly has.
ISTM that even letting this case anywhere near a jury is a miscarriage of justice. Not that it hasn’t been already. But this has been dragging on for weeks and months, and it is almost too late for justice. Best-case-scenario at this point is a trial, immediate acquital, and then a resounding civil verdict and heavy damages against Nifong for his conduct.
Seems to have been the case, don’t it?
Only the evidence was for the defense, which is why Nifong kept it on the QT.
What an asshole.
Even a “kill 'em all and let God sort it out” conservative law and order type like me wants Nifong burned in effigy and ridden out of town on a rail. Instead, he gets re-elected.
Best I can do is buy the inevitable book that the lacrosse players will write after the case is over, and thus do my bit to try to restore a little justice.
Is it really the case that the stripper’s inconsistencies won’t be brought out at trial? At least, if the judge won’t acquit, he will allow testimony to impeach the LW of the thread title.
Regards,
Shodan
No, no, a thousand times no. Pay no attention to the **wring **behind the curtain.
The next hearing is scheduled for 5 February. She is scheduled to testify. Smart money says she never takes the stand. The whole case hinges on her testimony. Nifong has admitted this. Which of her dozen or so stories are we to believe?
The one consistent element in her stories has been that the accused raped her with their penises. She describes one of them as forcing her to have oral sex. And now she is not sure with what?
The Duke Hoax is a travesty.
However, the public statements were just the tip of the iceberg, as it turns out, and it would be a shame if that were the only thing on which they tag him.
Failing to make this motion can waive an appeal for insufficiency of the evidence. If you do not make this motion, you can be held to be procedurally barred from claiming on appeal that you were convicted on insufficient evidence as a matter of law.
Always make your record!
I don’t know enough (read, anything) about the law to form an opinion on whether or not it is possible to disallow the situation wring describes. And the unfortunate takeaway I got from the OJ trial and the events of the Duke case is that it doesn’t have to make sense to me in order to happen in a court of law.
Because you mention -
If, as it seems, there is no evidence apart from the LW’s testimony, and she will not take the stand to offer it into evidence, how can we have a trial? And if they just read her statement/testimony/account of the case into the record, how can the defense be prevented from attempting to discredit that evidence by pointing out the contradictions?
No argument with any of the above. But, AFAICT, the only chance the defendents have is to make that kind of statement in court.
As I see it, there are three ways to play out this whole mess. Either [ul][li]The trial starts, the stripper refuses to testify, and Nifong reluctantly drops the case and pitches a lot of nasty innuendo about how the guilty go free when decent women are raped a second time in the court of public opinion, we need to take charges of rape seriously, white privilege immunizes rich frat boys from their crimes, blah blah blah. Or []The trial starts, the stripper testifies, she gets ripped to shreds on cross-examination, the players are acquited, and Nifong goes to prison for misconduct. Or []There are twelve people in NC that are as stupid and race-blinded as the jurors in the OJ case. [/ul]I’m betting on the first.[/li][quote=Huerta88]
However, the public statements were just the tip of the iceberg, as it turns out, and it would be a shame if that were the only thing on which they tag him.
[/quote]
Hear, hear.
But this also seems bizarre. Nifong is withholding evidence, and the thing that is unethical is his public statements? I reiterate, WTF?
Regards,
Shodan
Granted. However, upthread **Bricker **and **Unauthorized ****Cinnamon ** both express doubts concerning the inadmissability of her statements to police.
We can’t, and we won’t, if she refuses to testify. Nifong has admitted that there is no forensic evidence, and that the case depends upon her testimony. See my post #1488 above.
[QUOTE]
As I see it, there are three ways to play out this whole mess. Either [ul][li]The trial starts, the stripper refuses to testify, and Nifong reluctantly drops the case and pitches a lot of nasty innuendo about how the guilty go free when decent women are raped a second time in the court of public opinion, we need to take charges of rape seriously, white privilege immunizes rich frat boys from their crimes, blah blah blah. Or []The trial starts, the stripper testifies, she gets ripped to shreds on cross-examination, the players are acquited, and Nifong goes to prison for misconduct. Or []There are twelve people in NC that are as stupid and race-blinded as the jurors in the OJ case. [/ul]I’m betting on the first.Hear, hear. [/li][/QUOTE]
Agreed, with one caveat. She is scheduled to testify in a hearing February fifth. If she fails to show, the case falls apart. When I read between the lines, I see Nifong throwing her to the wolves.
This is a result of an investigation begun March 30th, long before the other irregularities surfaced. For an excellent analysis, see Durham-in-Wonderland. Scroll down.
Can Nifong continue to act as Prosecutor now that he’s charged with ethics violations related to this case?
If the LW (I mean Crystal, not Nifong – the distinction is now necessary) does not testify, there is NO way her statements (any of the multiplicity of them) could be offered in evidence – they would clearly be hearsay (out of court statements proffered to prove the matter asserted therein). I won’t plunge too deeply into whether, if she does testify, her previous statements can be introduced for impeachment except to note (without studying a shred of N.C.-specific evidence law) that I suspect their use for this very different purpose would be allowed.
Contrapuntal is right, this particular grievance has been in the pipeline for a long time. It is pretty well drafted (see the complaint by the Bar), though even as to the public statements, it leaves out a couple of egregious things (holding a hootin’ and hollerin’ rally at the “victim’s” college campus, for one), and obviously misses out on some of the awfulness that has since become apparent. I also seem to remember that he had cops go by the house and talk directly to team members to ask to examine the premises at a time when he knew most or all of the team was represented by counsel – which is improper). I expect and hope that further complaints (mine included) are in the pipeline and being considered by the Bar – I hope they are not trying to whitewash him by focusing only on “intemperate” public statements that could be explained away (and addressed by mere admonishment) as arising from the heat of the moment.
However this scenario pans out it’ll make a great story to write a big, fat book about.
Done and done: