May 26, 2006

Where is the evidence?

Something really stinks when it comes to the Duke rape case. Each day more information comes out that reinforces my opinion on the matter. I do not believe a rape occurred and it makes me more angry each day. I know we are hearing most of the information from defense sources... but when motions are filed containing the same information they released, I would imagine it is true.

So many lives have been ruined by the accusation made by this woman. If it turns out as I think it will, she should be prosecuted to the full extent of the law.

Links to Duke Rape Case Documents:
*Copy of 5/26/06 Defense Motion- Evans
*Copy of 5/21/06 Defense Motion- Seligmann (More definite statement)
Copy of 5/21/06 Defense Motion- Seligmann (Toxicology Results)
*David Evans Polygraph Test Results
*Transcript of Photo Lineup w/victim
*Duke University Police Report
*Reade Seligmann ATM Photos
*Police Report- Officer 1st on scene- Kroger
*Nifong's Statement about Previous Rape Accusation

Defense: Lacrosse accuser failed to ID defendant in early lineup
The Associated Press

DURHAM, N.C. - 5/26/06- The woman (Crystal Mangum) who has accused three Duke University men's lacrosse players of raping her failed to identify at least one of them in a photo array eight days after the reported attack, then selected him as an attacker more than two weeks later, according to a motion filed Friday by defense lawyers.

The motion filed on behalf of Dave Evans, 23, of Bethesda, Md., asks a judge handling the case to force prosecutors to provide narrative reports on a photo lineup conducted with the accuser on March 21, as well as an earlier lineup done March 16. The woman said the players hired her as a stripper for a March 13 party at Evans' off-campus house and then raped her.

According to the motion, the accuser met with investigators on April 4 to again view photos, which is when she identified Evans. Durham police videotaped that session. Prosecutors provided a copy of the tape to defense lawyers last week, along with nearly 1,300 pages of evidence.

"He looks like one of the guys who assaulted me, sort of," the accuser tells police officers in pointing out Evans, according to the motion. She then says she would be 90 percent sure of the identification if the man had a mustache, the motion said.

Evans' lawyer, Joseph Cheshire, has said repeatedly that his client has never worn a mustache.
Accounts of the earlier photo lineups are among several pieces of information that Cheshire and co-counsel Brad Bannon, say are missing from files given to the defense. Their motion also states that they were not given a report by the Durham police officers who heard the woman's initial claim that she was raped, or complete documents relating to a sexual assault exam report by a nurse examiner.

According to the motion, the woman may have wavered during her initial meeting with police about whether or not she was assaulted. A handwritten narrative report by Sgt. J.C. Shelton that is attached to the motion says the accuser first reported being raped after officers had decided to involuntary commit her. She then reportedly told officers that she was groped by some of the men who pulled her from a car, but was not forced to have sex. According to Shelton, the accuser then told a doctor examining her for evidence of rape that she had been raped.

Since District Attorney Mike Nifong (R) provided defense attorneys with what he said was the state's entire file to date, lawyers for the three players charged in the case have filed three motions claiming that information is being withheld. Also indicted in the case are Collin Finnerty, 19, of Garden City, N.Y., and Reade Seligmann, 20, of Essex Fells, N.J.

Nifong's office has declined to comment on this week's filings and his legal assistant was not available Friday afternoon.

Also Friday, a lawyer who said he represents a lacrosse player not charged in the case said he wants the Durham Police Department to conduct an internal investigation into a poster and flyers that he says unfairly implied all 46 members of the lacrosse team were guilty of rape.
Alex Charns said material distributed around Durham by the CrimeStoppers organization suggested that the entire lacrosse team was guilty of raping the accuser. CrimeStoppers is an organization that acts independent of the police department, offering rewards for information about crimes.

A police spokeswoman, Kammie Michael, said Friday that the department's only connection to CrimeStoppers is through a corporal who serves as a liaison officer and that the department had no control over the group's press releases and flyers. Michael said no investigation is planned.


Anonymous said...

this woman is a liar. she should go to jail.

Anonymous said...

I agree. I do not think any crime occured that night.

Magnolia said...

I have wanted to write about this from day one, but have actually been afraid to. It has smelled like Tawana Brawley from the get I am sick and tired of the BS. What makes me so damned angry is that people like her make it so much harder for women that have been raped. She needs to be in rehab..then jail...along with that POS prosecutor...and the bitch that wanted to get paid to "spin" the story to her advantage.

Betty Friedan said...

Blind to evidence

On Monday, May 15, a Durham County grand jury handed up a third indictment in the nothing-short-of-notorious Duke rape case. This latest indictment charges the lacrosse team's captain, David Evans, with first-degree rape, first-degree sexual assault, and first-degree kidnapping.

The charges against Evans are identical to those handed up last month against fellow players Reade Seligmann and Collin Finnerty. Still, this final indictment does come as a bit of surprise. As I detailed in a prior column, the cases against Seligmann and Finnerty appear quite weak. As I'll discuss in this column, the case against Evans may be even shakier. It's true that the grand jury did return indictments against Evans, and previously against the other two. It's also true that the District Attorney, Mike Nifong, is forging ahead -- seemingly undeterred.

But Nifong's judgment has been poor all along- and the old adage that a D.A. can get a grand jury to "indict a ham sandwich" shouldn't be forgotten. Without defense attorneys there to test the prosecutor's evidence via the invaluable process of cross-examination, weak evidence can be made to look pretty convincing. It's not the grand jury's fault; it's just the reality that if you only hear one side, you tend to believe it.

At least a ham sandwich has some weight to it. As I'll explain in this column, the Evans indictment - like the two that preceded it - does not. The very evidence that may have convinced the grand jury - accuser identification and new DNA evidence - is just the kind that will ultimately fall apart when defense attorneys finally do get to cross-examine the witnesses presenting it.

The Mounting Evidence in Favor of Defendants' Innocence

All three defendants in the Duke lacrosse case have unfailingly and repeatedly proclaimed their innocence - Evans doing so most eloquently, on behalf of all three men, in a brief public comment following his being formally charged.

In fact, in a highly unusual move, newly indicted defendant Evans went to so far as to volunteer to take a lie detector test at the direction of law enforcement. When the D.A. refused, Evans enlisted a top polygrapher to administer the test anyway. He passed.

Thus far, the defense camp has come forward with a host of seemingly reliable, exculpatory evidence -evidence that will be admissible in court, and that is likely to sway a jury. I'm not talking about, maybe, kinda, sorta, or could be, exculpatory evidence either. I'm talking about weighty evidence - receipts, photos, phone records, alibi witnesses, an absence of DNA, and now actual DNA - that directly supports the defendants' claims of innocence.
A plethora of proof supporting a defendant's claim of innocence - not just the government's failure to carry its burden of proof beyond a reasonable doubt -- is a rare pearl in the practice of criminal defense. It should cause the D.A. to reassess his case.

The Problems with the Accuser's "Identification" of Evans

In my prior columns, I discussed the problems with evidence against Seligmann - who has strong evidence supporting an alibi - and, to a lesser extent, against Finnerty. The evidence against Evans is also weak, maybe even more so.
Evans reportedly was not initially indicted, with the other two, because the accuser couldn't identify him with certainty (only with "90 percent certainty," in her words) from a photo lineup. Ten percent doubt sounds like a lot like reasonable doubt to me - and perhaps, at least initially, it sounded that way to D.A. Nifong too. And if the accuser herself has reasonable doubt, how can a prosecution go forward?

The accuser's lack of certainty is even more worrisome in light of the fact that the photo lineup was grossly biased. It included only Duke lacrosse players - meaning that the accuser had no choice but to select a Duke lacrosse player if she were to select anyone at all. And this photo lineup was apparently the sole means of identification for all three defendants.
Finally, and perhaps most disturbingly, the accuser is reported to have said that Evans's photo "looks just like [one of my assailants] without the mustache." According to Evans's defense lawyer, Evans has never worn a mustache. And party photos support this contention.

For all these reasons, the accuser's identification testimony is likely to be destroyed upon cross-examination.

The Problems with the New DNA Evidence

Besides the accuser's testimony, prosecutors also presented to the grand jury the results of a second round of DNA testing.

Readers may recall that the first round of DNA testing was, if anything, exculpatory: There was no DNA match whatsoever linking any of the forty-six lacrosse players whose DNA was taken, to the accuser.

Following those results, D.A. Nifong reportedly hired a private lab to re-test certain samples. In so doing, the new lab found a possible connection between defendant Evans and the accuser's discarded fake fingernail, found in the trash bin inside the bathroom.

To begin, it's awfully odd that the fake fingernail found its way into the trash bin in the first place, if a rape really occurred, and if the fake fingernail broke off during the victim's struggle, as she claims. No victim would clean up after her accusers; she would flee the scene. And if a culprit had the presence of mind to clean up -- realizing that the fake fingernail might be evidence against him -- surely he wouldn't just drop it in the trash can in the very room where the rape occurred, for police to easily find.

Significantly, too, defense attorneys claim the DNA material was found on the front of the nail -- not on the underside, where it would logically have lodged had the accuser scratched and clawed at her attackers as she claims.

But even putting these points aside, the DNA connection to Evans is weak. To begin, this isn't remotely close to the kind of "match" you may be familiar with from CSI - the kind where the odds of a false positive are infinitesimally small. Indeed, "match" here is a misnomer. All that can be said is that the DNA is "consistent" with DNA voluntarily supplied early on by Evans.

Shocking? Hardly. Evans lived in the house, and therefore may have, from time to time, blown his nose, swabbed an ear, or otherwise disposed of DNA-laden waste into that very trashcan.

Moreover, it was reportedly Evans himself who fished the fake nail from the garbage, voluntarily handing it over to police and maybe, just maybe, shedding some skin cells in the process.

As for direct evidence of sex, there is none; none from any of the forty lacrosse players, that is.

While the second round of DNA testing proved that semen was found inside the accusers vaginal cavity, spokespersons close to the defense are confident the source of the semen is the accuser's own boyfriend.

In sum, after cross-examination, there is little, if any, chance that a jury will give weight to this DNA evidence. It clashes with the accuser's own story, and it's as fully consistent with Evans's innocence as it is with his guilt.

The D.A.'s Unusual Hostility to Even Viewing Defense Evidence

Defense lawyers have repeatedly implored District Attorney Nifong to meet with them and to examine the evidence that favors the defendants. But Nifong has said no - with an attitude that boils down to, "Talk to the hand."

That's unusual. More often than not, prosecutors are quite open to exchanging - or at least being entertained by - the defense's evidence. After all, it provides them with a valuable preview of what the defense's case may ultimately look like in court. Prosecutors are legally required to turn over certain evidence to the defense, but no obligation runs the other way. And since the defense goes second, prosecutors may not be able to effectively counter defense "surprises."

For prosecutors, meeting with the defense is thus typically a win-win situation: If they are convinced to drop the case, then that's embarrassing - but far less than as a loss at trial would have been. If they aren't convinced to drop the case, they've gotten a precious new edge at trial. And either way, both the reality and appearance of fairness to the defendants are enhanced.
Giving a defendant a lie detector test, in contrast, isn't a win-win situation: It may hurt prosecutors' case if the results are released to the public. (Lie detector results are rarely - if ever - admissible in court.) But at the same time, a lie detector test - while risky, and far from perfect - is likely to get prosecutors closer to the truth, which is supposed to be what they are after.

As noted above, in this case, Evans claims Nifong refused to give Evans a lie detector test. (He ultimately took one himself, and passed.) In my professional experience, a prosecutor's refusing to administer a lie detector test to a defendant is nearly unheard-of. The defendant's answers - and the lie detector's response to them - may provide the prosecutor with a road map to what his vulnerabilities on the stand may be.

Just as meeting with the defense previews the defense case for prosecutors, administering a lie detector can preview the defendant's testimony, as well as his on-the-stand demeanor, showing prosecutors what kind of a witness he will be. (Confident? Nervous? Shifty? Solid?)
I can't help but believe that, were any of these defendants to assert that they had proof that a crime was indeed committed, this district attorney would be all ears. Suppose, for instance, that Seligmann or Evans were to turn on Finnerty, to try to save themselves - surely Nifong would happily hear them out. So how can the prosecutor justify, then, turning a blind eye to evidence of any of the accused's innocence?

If There's A Card Up the D.A.'s Sleeve, the Law Requires Him to Play It Soon

Some pundits have suggested that the only explanation for the District Attorney's pressing on in the light of strong evidence that the defendants are innocent, is that he has a card up his sleeve. If so, then he needs to show that card, pronto.
The discovery statutes in North Carolina - as in most states - do not allow prosecutors to play "hide the ball." This is a judicial proceeding, not a magic show. So D.A. Nifong will have to reveal this evidence sometime before trial.

He ought to opt to reveal it right now - to give the defense a chance to counter it. When evidence suggesting innocence is as strong as it is in this case, it's wrong to just let the case go to trial and "see what the jury says." These three young men's live will be forever affected, even if they are acquitted. Even an arrest leaves a scar; the scar of trial is far deeper.

D.A. Nifong should listen to the defense, and should drop the case unless he has strong evidence supporting the accuser. Moreover, if he does have such evidence, he should show it to us now. The defendants have been forthcoming - especially Evans, who volunteered to, and then did, take a lie detector test. The prosecution should follow their example.

betty friedan said...

A Special Prosecutor In The Duke Rape Case?
Susan Estrich wants DA Mike Nifong to appoint a Special Prosecutor in the Duke lacrosse rape case. Ms. Estrich believes that Mike Nifong, is outmatched for Bob Bennett hired by the Duke team parents, and wants NC’s attorney general to hire Bennett's equal to represent the state?
Why not hire Bennett's equal to represent the state? Bringing in the top guns for a complicated case would be one thing, but bringing in the high-priced talent in order to attempt the transformation of a pig's ear into a silk purse would be a waste of the taxpayer's money.
Nifong claimed that a date rape drug was used but a discovery motion filed by the defense learned that there wasn’t any toxicology done. The question of a “line-up” that guaranteed a Duke lacrosse team member would be chosen. The absolute refusal of Nifong looking at exculpatory evidence of any kind, and he continues to ignore evidence that the crime never occurred.

There is no way three drunken men, inside an enclosed bathroom with a woman violently clawing and fighting would leave absolutely no DNA behind at the alleged crime scene. Where’s her tears, sweat, saliva, and other bodily fluids? If condoms were used, were are the condoms, wrappers, boxes or evidence of lubricant on or in the alleged victim? The scene described by the alleged victim is one of violence and chaos, yet even in the most calm and best of situation, anyone who has ever had sex with a condom knows that there is no way to remove a condom without touching DNA evidence from either yourself or partner.

Ms. Estrich states: "The price to date has been paid by the accuser, who has been called every name in the book".

Really? Some think that the defendants have paid a higher price. These boys had their names, photos, addresses, personal information attached to “gang rape” in the national media and internet, they had “wanted posters” posted all over their school and community, daily protests by many sexist and racist political groups identifying these boys and calling them gang rapists, Meanwhile, no mainstream media outlet that has published the accuser's name, let alone called her a liar.

Ms. Estrich’s second point, “that the treatment of the accuser may chill other women from coming forward”

This depends on whether you think public opinion has turned because of brilliant defense maneuvering, or because of an embarrassingly weak case where evidence points to the accuser making false claim, and a DA who has a political agenda.

Ms. Estrich: “Let Nifong pick the prosecutor; if his handpicked choice believes there is no case, …then so be it.”
My guess is that Nifong will have no interest in appointing a special prosecutor prior to his election in November - in terms of Nifong's job preservation, which seems to be his motivation here. Having a special prosecutor dismiss this over the summer will be even more politically embarrassing than having Nifong take responsibility for his own behavior.
Frankly, as best I extrapolate Ms. Estrich's view, if the Duke Stripper replaces Tawana Brawley as the shorthand for false accuser, that will chill real rape victims who will fear that they will not be taken seriously. The only non-chilling outcome would be prosecutions and convictions, and that is not going to happen based on the evidence we've seen.

Betty Friedan said...

Police investigating the Duke University lacrosse team on rape allegations "omitted" notes from a second dancer at the party, who told authorities the alleged victim had been drinking, was acting "crazy" and that her colleague's accusation was a "crock," a defense attorney said Thursday. In court documents filed Thursday, attorney Kirk Osborn said that Durham, North Carolina, police "intentionally, deliberately and/or recklessly omitted" information from a probable cause affidavit -- information Osborn says would have persuaded the judge not to file felony charges against three of the players. The district attorney's office did not return a call seeking comment.

Another police note obtained by the defense says the alleged victim acknowledged having two beers before arriving at the party and that she and Pittman both had a rum and coke after their arrival.

The accuser also told police that she used a vibrating sex toy during a dance in a hotel room for a male and female, but she told police that she had not had sex in the week before the party, the note says.

However, a male friend of the accuser said that he had sex with her that week and that he drove her to three other sexual encounters, according to the friend's statement.

Osborn also claims in the court documents that the nurse who examined the alleged victim was in training and not yet certified.

Anonymous said...

The Duke rape case also unfolded along the lines of conventional liberal beliefs about privileged whites and allegedly dumb jocks. The leadership at Duke should be ashamed. As the facts emerge, ever so slowly, it is becoming apparent that the prosecutor should be disciplined for his shocking behavior.

betty friedan said...

The stripper originally claimed that the second stripper helped with the rape!

Just when you think this case hit rock bottom, you find a sub-basement.

If Mike Nifong doesn't get disbarred after this, then there is a corrupt system in Durham that protects rich white guys.


3 (b) The probable cause affidavit implies there is no question that [deleted] was sexually assaulted on March 14, 2006, at 610 N. Buchanan by three men. But three days before Investigator Himan signed his affidavit, March 20, 2006, at 10:10am., Investigator Himan interviewed Kim Pittman, the only eyewitness to the events of March 14, 2006, at 610 N. Buchanan. Before Ms. Pittman was granted extremely favorable bond consideration by District Attorney Nifon personally on april 17, 2006, she told investigator Himan [ deleted ] allegation that she was sexually assaulted was a “crock.” Instead Investigator Himan alleged that [ deleted ] “reported that she was sexually assaulted for an approximate 30 minute period.”

3 (e), (8) She told Investigator Himan first that she had consumed a 24 ounce bottle of beer and thereafter that she had consumed two twenty-two ounce Ice House beers. Finally, She told the S.A.N.E nurse in training that Kim Pittman assisted the players in her alleged sexual assault and that Kim Pittman stole all her “money and everything.”

Anonymous said...

Ever since every sexist and racist group descended onto Duke to publicly condemn these boys, I went into over drive trying to make people consider that these boys wouldn't have submitted to DNA testing if they were guilty, but since the 1st DNA evidence came back, I became more persistent and met equally persistent feminist (i.e. feministing, Rachael’s Tavern, Alas a blog, Tennessee Guerrilla Women, Justice4Sisters, Hazel8500 etc...) who adamantly insist these boys are guilty for no other reason than because a "woman" (i.e. the stripper) claims it so.

I've noticed since then that most of feminist blogs have fallen silent as new evidence suggests that the stripper's claim to be false.

However, just when you think this case hit rock bottom, there’s about 50 feet of crap, then you find a sub-basement where in the corner Mike Nifong is hunched over clutching this dead case like “Gulum” (movie: Lord of the Rings) clutches the “ring of power”.

A great place to view that unbiased facts is:

I love this quote:

“If Mike Nifong doesn't get disbarred after this, then there really is a corrupt system in Durham that protects rich white guys. In Nifong's case - stupid rich white guys with transparent political agendas, but maybe I'm wrong. Maybe Nifong can turn a pig's ear into a silk purse.”

Anonymous said...

Okay before I thought Mike Nifong was an idiot because he spoke before knowing all the facts, but now I’ve come to realize that Nifong doesn’t care about facts, at least facts that conflicts with his, which is everything from the DNA to the rape exam.

Because misandry feminist have been reacted so irrationally about this false rape claim, I recently tried to inject levity into my comments (i.e. see below), but there’s nothing funny about a DA acting with such negligence and gross contempt for justice. Nifong must be a misandry feminist too.

“I love cherry pie, but I don't like cherry picking. Some people are trying to claim that the defense attorneys are cherry picking, but more rational people claim Nifong is the champion cherry picker.

But much of the information Mike Nifong leaked wasn't so much cherry picked as it was artificially created. (i.e. date rape drug, his reasoning of no DNA match, etc...).

Maybe Nifong is just clumsy and trying to make a pie, which would explain why he has egg on his face.”