Saturday, December 23, 2006

Is this how the Duke lacrosse case will end?

Despite refusing to talk to the media yesterday as he faxed over his motion to dismiss the rape charges against the three lacrosse players, Nifong did manage to give an interview on Thursday to the New York Times. And his words to the Times give a hint of how this travesty of a case could end.
Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.” And in a three-hour interview on Thursday, Mr. Nifong said he would not hesitate to drop all the charges if the accuser expressed doubt about the identity of the men she has accused when she sees all three defendants at a pretrial hearing set for February.

“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said. On the other hand, he continued, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”
So, when she gets on the witness stand and is suddenly as unsure that these three young men assaulted her as she was uncertain that they'd actually raped her.
Although the woman identified three lacrosse players as her rapists from an array of photographs, Mr. Nifong said she would get a better look at them at the pretrial hearing in February. “You can’t always tell from a photograph,” he said, adding, “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.”

Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

As it happened, as Mr. Nifong made those remarks on Thursday afternoon, the woman was expressing new doubts to his investigator, doubts that forced him to drop the rape charges late Friday morning.
If he is so convinced that a photo line up was insufficient, the opportunity was there in April to arrange an in-person line-up. In fact, after she picked out their photographs, the police could have arranged a line up of young men for her to have looked at in person.

Of course, there are also all the fundamental problems with the lineup.
The police showed her three sets of photographs during the first three weeks of the case, one with 24 lacrosse players, one with 12, and, after she failed to identify any suspects, one with all 46 white players.

She identified only one person with 100 percent certainty in two photo arrays as having been present at the team party. But that person, Dan Ross, was not there. He was 24 miles away in a dorm room in Raleigh.

The woman also identified the wrong player as having held up a broomstick while making a sexually crude remark to the two dancers.

As previously reported, she did not identify two of the defendants — Mr. Seligmann and David F. Evans — as attackers when she saw their pictures in the first photo arrays. She said it was harder than she thought because “the people in the photos looked alike,” police investigators wrote. Yet she later identified Mr. Seligmann with 100 percent certainty and Mr. Evans with 90 percent certainty, saying he “looks just like him without the mustache.” Mr. Evans has never had a mustache.

The final identification procedure contained photographs the police had taken of all 46 white lacrosse players. By not including any filler photographs of people who could not possibly be involved, the procedure appeared to violate Durham police, state and national standards for photo lineups and was called by the defense “a multiple-choice test in which there were no wrong answers.”
Well, what is Nifong's defense of all these irregularities and weaknesses in her identification of the three defendants?
Mr. Nifong said this technique was not a photo lineup as that term is applied to police guidelines. “What is a lineup?” he asked. “What if I have no idea who did the assault?”
Huh? Is that his defense? I can't think that reasoning, or lack of reasoning, will wash with any honest judge.

But through Nifong's discussions in the New York Times, we can see how this can all end. The accuser can get on the stand in the hearing on the identification process and saying that, well, she thinks these are the three guys, but she can't say they are with 100% accuracy, maybe just 90%. And then Nifong can say that he feels it's his responsibility to drop the case. And he can try to pretend that he's been all noble about deferring to the accuser in everything he did.
“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.”
And it's totally possible that even an honest witness would have trouble identifying three people a year after the event. I see the various stock footage of these young men on all the cable news outlets and they look different to me in the photos compared to the live shots. I work with young people all day long and their appearance changes at this age. Kids I know very well come back to visit me after a year in college and some of them have changed remarkably in the intervening year. If I'd just seen a picture of them from a year ago, say their yearbook or team picture, and now saw them in person I'd have a hard time swearing that it was the same person with 100% accuracy. So, the accuser can get on the witness stand and cry and say she just not sure anymore and poof! there goes the case. And Nifong can have his story all ready about how he just had to do his duty and try to prosecute these guys as long as the accuser claimed that that was what had happened. But then when she expressed doubt, he would oh so nobly drop the case.

The fact that Nifong has deliberately avoided actually talking to the accuser about the case will be beside the point.
Mr. Nifong said he had not yet talked to the woman about the case because he preferred to rely on investigator interviews and to assess her credibility through talking with her about other things.
Yup, that's the way to assess a person's credibility. Talk to them about inconsequential things and never address the real issue that is under question. He knew back in April that there was no DNA from any of the players on or in her, yet there was also the DNA from several other men other than her boyfriend. However, he didn't feel that April might have been a good time to have sat down with her and tried to assess her credibility? Hello? Does this man have any sense of the damage that he has done not only to these three young men, but also to the entire reputation of the justice system in our state?

His actions in such a high profile case have given the appearance that district attorneys manipulate prosecutions so as to get the best political benefit. His conspiring with the director of the DNA lab to withhold evidence he was required to turn over to the defense have brought into question every other prosecution he has conducted in Durham County. If he'd violate the North Carolina code in a high profile case, what would he do in the hundreds of other cases that don't receive the public attention that this one has generated? Cynical observers can be forgiven from concluding that this kind of thing is going on all over the place with district attorneys running roughshod over the rights of defendants if they think it will redound to their political benefit.

This case may end when the accuser gets on the witness stand and suddenly decides that she can't identify the defendants with 100% accuracy, but its effects on our perception of the criminal justice system will continue for much longer.

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