Lacrosse players' defense: Documents being withheld

HeraldSun ^ | September 1, 2006 | William F. West

[Protect the Bill of Rights]

Lacrosse players' defense: Documents being withheld

By William F. West : The Herald-Sun
bwest@heraldsun.com
Sep 1, 2006 : 11:20 pm ET

DURHAM -- Attorneys for the three Duke lacrosse players charged with assaulting an exotic dancer claim District Attorney Mike Nifong and police still haven't provided several vital documents in the case, as required by law.

As a result, the defense lawyers have filed papers in Superior Court calling for Nifong to produce those documents.

The request to Judge Osmond Smith comes after Durham County's chief prosecutor told Smith and defense lawyers at a recent meeting that a toxicology report indicated the accuser's tested negative for the presence of controlled substances.

That undercuts public hints by Nifong in April that the woman might have been given a date-rape drug, defense attorney Kirk Osborn said.

In court papers filed this week, the defense argued it hasn't seen the written report despite indications Nifong would provide copies.

In addition, the defense is calling for Nifong to hand over complete copies of information regarding laboratory testing in the case by the State Bureau of Investigation and by the testing firm DNA Security Inc.

The Herald-Sun was not able to reach attorneys for the three indicted athletes -- Reade Seligmann, 20; Collin Finnerty, 19; and David Evans, 23 -- for comment Friday.

Seligmann, Finnerty and Evans maintain their innocence on all counts -- rape, kidnapping and sexual offense -- in connection with allegations surrounding events at the lacrosse team party March 13 at 610 N. Buchanan Blvd., next to Duke's East Campus.

Nifong didn't respond to a request for comment left with his office Friday.

In its filing this week, the defense also is pressing for more information about what happened in the hours after the alleged attack, particularly information regarding the accuser's trip with police to the Durham Access Center, a mental health and substance abuse facility, for involuntary commitment.

The accuser reportedly began making rape allegations while at that center.

The defense cites the lack of a substantive report about the accuser's presence at the center, and the defense points to a blank check-in log as an example of inadequate information.

In addition, the defense wants to find out what was said at a meeting Nifong and police had with the accuser April 11 at the county courthouse.

The defense said Nifong argued to an earlier judge that such information was off-limits to the defense.

More specifically, the defense argues Nifong claimed at a case hearing June 22 that the defense was not entitled to know because facts regarding the legal action were not discussed with the accuser. And the defense adds that Nifong considers that to be a confidential communication.

Debunking that argument, the defense says, is that an investigator -- Sgt. Mark Gottlieb -- in a typewritten narrative said Nifong and the accuser met and talked about the case.

The defense points out, additionally, that a police major issued a memo stating all police personnel involved in the investigation were directed to produce all e-mails to and from one other about the case.

The defense said that while the message specified a June 5 deadline for compliance -- with threats of disciplinary action for failure to comply -- there is evidence police have not fully complied.

The defense argues that, in one instance, a crime scene investigator produced a number of e-mails -- but only after defense attorney Brad Bannon found them in the investigator's case file July 18 while at the police station.

The defense goes on to contend that nearly a dozen law enforcement officers who have been involved in the case have not provided all their handwritten notes.

The defense also wants to know more about what police have on file about the woman's background in Durham and about her interaction with the local criminal justice system.

The defense, again citing the July 18 date, argues that Bannon's review of an investigative file at the police station reflects the accuser was involved -- as a suspect, witness or otherwise -- in at least five other probes.

And the defense wants to see what police may have communicated to the Durham City Council.

According to the defense, Gottlieb, in a typewritten document, said that on April 4, he was asked by a captain to produce a timeline of events for the city manager, Patrick Baker, for possible presentation to the council.

The defense wants a copy of that timeline plus a report of the substance of any meetings between or among law enforcement officers, the manager and any council member.

Baker soon afterward briefed the City Council on several points about the case.
 

[CondorFlight]

Some info on juries :

But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is
admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can
thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the
evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.

An Essay on the Trial By Jury
LYSANDER SPOONER (1852)


"If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty."
(1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

Adams later said of the juror, "it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." (Yale Law Journal, 1964:173)

At the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact. In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well as the fact in controversy." (Georgia vs. Brailsford, 1794:4)

[SarahUSC]

Thanks for posting about the Jovanovic case. The similarities between that case and the Duke case are amazing. That was a very interesting ruling by the NY District court. Someone should fax a copy of that to Nifong.

[ltc8k6]

But she was incoherent.....

that's probably it, though.

Lemme go, I gotta check on my kids!.....and schedule another gig.

[Protect the Bill of Rights]

FYI: transcript of radio transmissions.

The times are actual clock times as noted by computerized voice on tape.

http://p206.ezboard.com/fhackedbannedandlockeddownfrm26.showMessage?topicID=2.topic&index=2"%20target="_new
 

The following is the first transmissionafter leaving Buchanan:

1:33:55am
She's breathing, appears to be fine. She's not in distress. She's just passed out drunk.

2:12:08  am
Ah.. Yeah, call and see if you can't get somebody close to Charles St  to ride by and check on the young 'uns.

2:37:08am
She's on the way to Duke now and they gonna get a SANE Nurse and start the report. and, ah, I'll let you know where we are at that point. [inuadible....] That's your job Big D[addy?].

2:39:03 am

Ah...The one that we talked to at the Kroger that knew her?

[inaudible] Quite possibly [more inaudible]

(end of tape)

 

[ltc8k6]

Knew Crystal?

[ltc8k6]

I heard that as the question, "The one that we talked to at the Kroger kew her?" with the answer "Quite possibly."

[Protect the Bill of Rights]

I am looking at Shelton's written report where Kim said she had picked up Precious, a stranger who was wallking down the street.

Shelton even wrote he cautioned her about picking up strangers.

But his report was dated 4/9.

Also,someone knew something, because "Charles St" is mentioned.
Not sure where he was when that statement made.

[Protect the Bill of Rights]

You are right I heard a "THAT knew her"
There was no "that" there. (Sounds like bubba speak)

But they did know Charles Street.

[Jezebelle]

In other words, Kim lied to the cops about not knowing Mangum, but we already basically knew that.

[Jezebelle]

But, see, we don't know yet which all cops arrived on the scene at Kroger's and what conversations they may have had face-to-face that aren't recorded, nor do we know what all Mangum said to them when they roused her.

[ltc8k6]

I think the guard knew Crystal.

The guard asks Kim what her name is, so unless that was an act, that can't be it.

[Jezebelle]

The cops' radio mentioning of the kids was at 2:12. Mangum was at Durham Access by then where she was to be committed. When she learned that, she probably came up with the kids as her first excuse/reason to not be committed - the kids need her. The cops would have responded with "Where are they?" She would have said where they are. Then they would have said, "We'll send someone to check on them." So then Mnagum goes onto her next excuse - "I was raped." So at 2:37 she's on her way to Duke and they're going to bring in a SANE nurse.

It's pretty obvious what went down by the timing and content of what was said. We don't have all the details yet of everything that was said from the time the cops arrived Kroger's until they wrapped it up a couple hours later, but the sense of it is pretty clear.

[Jezebelle]

Huh?

[ltc8k6]

Well, who "quite possibly" knew who at Kroger?

I don't think the guard knew Kim.

Either Kim knew Crystal, or the guard knew Crystal.

What else is left?

[ltc8k6]

Wouldn't the cops wonder why the kids wouldn't be safe at their grandparent's houes?

What would the police say to the Mangums about the reason for their middle of the night visit?

[Jezebelle]

I still don't understand why you think either of them knew Mangum before that night. What am I missing?

[Jezebelle]

I don't think they necessarily did think they wouldn't be fine at their grandparent's house. But Mangum may not have said it was the GP's house, or she may have said one or the other of them had to go to work, or who knows what? But once she expressed the worry, if they're keeping her in custody, they may have felt some liability for them so they decided to just do a quick welfare check on them.

I have also wondered what they might have said to her parents at that hour, if in fact they did go over there, and we don't know yet if they actually did or not.

[ltc8k6]

The DPD radio transmission at 2:39:03.

"Uh. The one that we talked to at the Kroger knew her?"

"Quite possibly..."

Trying to figure out who they meant quite possibly knew who.

[Mike Nifong]

And we have Durham Access saying that she was incoherent.

_

[Jezebelle]

Okay, I see what you're thinking. I don't think they meant "knew her" as in before that night necessarily - just that her story about picking Mangum up as a complete stranger was a lie. All they figured out is that the woman who dropped her at Kroger's was also at the lax house to dance and "knew her" as in not just picking up a stranger along the road, which was what Kim said.