Friday, May 26, 2006

Even More Weaknesses in the Durham District Attorney's Case

A new filing by David Evans' lawyer reveals this little tidbit. There were actually two lineups given to the alleged victim. The first one was given eight days after the party on March 21. On that occasion, she did not pick Evans' picture from the lineup. Then, at the second lineup on April 4, she suddenly had a clarified memory and did pick his picture.
It's unclear whether the woman identified any players in the March 21 lineup because defense lawyers did not receive a report on the procedure. In a lineup done on April 4, the woman picked out four players as possible attackers with varying levels of certainty. During the later lineup, the woman said she was "about 90 percent sure" Evans was one of her assailants, but said he had a mustache that night. Evans' lawyers have said they have photographic proof that Evans did not have mustache. Having a mustache is against lacrosse team policy.

For the March 21 lineup, Durham police used official photos of the lacrosse players, identical to those posted on, the official Web site of Duke athletics. The police arranged the photos in groups labeled A through F.

Evans' photo was labeled F-5. There was a Post-It note referring to group F that said "Did not pick any".

"Eight days after the alleged assault, and two weeks before the April 4 identification procedures in which she selected (Evans) with 90 percent certainty if he had a mustache, the complainant viewed a picture of (Evans) in this case and did not identify him as one of her alleged assailants," wrote Evans' lawyers, Joseph B. Cheshire V and Brad Bannon of Raleigh. "Incredibly, though, there is no narrative report ... about these photo identification procedures."

The March 21 photo lineup could violate the Durham Police Department's policy on photographic lineups:

-- The policy calls for "filler" photographs of people who are not suspects in the case. The March 21 lineup apparently included only Duke lacrosse players;
-- The officer running the lineup should document the procedures, results, number of photos viewed. Evans' lawyers said they received no report.
It's not clear if she picked the other two defendants in the first lineup. We don't know if she picked anyone from that first lineup.

The defense filling makes fascinating reading. They have a whole list of investigative actions that were taken by the police but copies of which were not handed over to the defense in violation of N.C. law. One of those items was the analysis of the cell phones taken from the house. They report four phones being recovered from the house but only doing tests on three of them. But they only turned over reports on two of the phones but those weren't the inventoried phones that they said they had found there. Incompetence or something else? Was one of the phones the one the woman had? Who knows? There are other items missing from the supposedly complete file that Nifong turned over such as reports from various investigators at different times during the case, reports that the police are required by law to file and Nifong to turn over to the defense.

Nifong is, once again, not commenting on the Durham police's questionable tactics.

And, apparently, her first story to the first policeman who found her at the Kroger was that the players pulled her in to the bedroom to rape her. Later the bedroom became the bathroom.
"Within a few minutes, I was told that she told the [doctor] that she had been raped? I returned? and asked her if she had or had not been raped. She told me she did not want to talk to me anymore and then started crying and saying something about them dragging her into the bedroom."
And the 20 men became three men. And Kim was there in the bathroom or wasn't there in the bathroom. It gets very confusing.

So, let's review. The Durham police did not one, but two faulty lineups with only lacrosse players shown to the woman. In this first one, they're all wearing their lacrosse team shirts so she knows that all she has to do is pick some of them. But the police fail to take the narrative notes or they fail to give the notes to one of the defendants (or probably all of them since they probably got similar boxes of materials.) He has contradictory stories from the alleged victim. After this, the D.A. asks for DNA samples from the entire team, except the black member, saying that the results will clear the innocent and inculpate the guilty. Then she is given another line up on April 4 and she picks Evans with 90% confidence saying that it looks like the guy who attacked her except without a moustache. However, Evans did not have a moustache the night of the party. DNA evidence comes back from the nail found in the garbage in the bathroom with DNA that could match Evans. However, it's his bathroom and there is trash in the garbage that could have had his DNA.

Nifong considers that this is such strong evidence that he proceeds to seek an indictment of Evans knowing that, in the event of a trial, he'll have to put this woman on the witness stand where she'll be open to questions about the two lineups and the missing moustache. The contradictory stories she gave the police will be introduced. He knows that there will be reasonable doubt cast on the fingernail DNA result. Yet, he finds this enough to indict the young man.

In the meantime, he went on TV and explained that a reason that none of the players had scratch marks on them was because they were wearing long sleeves on a warm Spring night. If he'd taken one peek at the defense pictures, he would have seen that none of them were wearing long sleeves.

Then he implies that she was given a date rape drug even though he knows that, for some reason, no toxicology test was done. But he didn't mind sprinkling a little innuendo out there. Why not cast the doubt that she had been slipped such a drug even though he knew he could never prove that or submit evidence about it? Maybe a prospective juror will hear his hints.

How much weaker can this guy's case get? How much more will we find out about how sleazily he's conducted himself?

What if there really had been a rape that night? I am so firmly convinced that this woman is lying that I view the possibility of a rape as a contrafactual deserving the subjunctive mood. But, if there had been a rape, the police procedure seems so shaky as to have cast serious doubt on convicting the guilty person or people. The D.A.'s behavior blabbing to the media and inciting racial divisions after the story became public are an indication of how shoddily this guy has conducted himself.

Besides these three defendants, the others who are hurt by this travesty of a case are all the real rape victims out there. Once this case is history and a lesson on the injustice perpetrated by a runaway district attorney, there will be increased skepticism directed at rape victims. She'll faced additional distrust because of this case. And we'll have this woman and Nifong to thank for that.