http://www.insidelacrosse.com/page.cfm?pagerid=66384&author=140127&blog=140129
Standards of Justice
11/13/2006
On April 13, 2006, Duke University student Reade Seligmann was indicted for crimes stemming from allegations that a woman had been kidnapped, raped and sodomized by three men on the morning of March 14. Because there was no DNA evidence or corroborating witness linking him to the alleged attack, a positive identification by the accuser on April 4 serves as the linchpin to this indictment.
Procedurally speaking, the silver bullet to the case against Seligmann, which will ultimately prove fatal, is how the accuser was shown his picture three times before finally identifying him as one of her attackers. Along with every other misstep Durham County District Attorney Mike Nifong has made in this case, he will bear the blame when Seligmann’s identification is suppressed and his case dismissed.
IDENTIFICATION ATTEMPTS
On the afternoon of March 16, two and a half days after the alleged incident, police officers showed the accuser the lacrosse team photographs of approximately 25 of the 46 white players. Rather than obtain a court order to take “evidentiary” photographs of any potential suspects, the officers had downloaded from the team’s website the pictures of Duke players fitting the accuser’s general descriptions of her three assailants. Seligmann was among these 25 players; co-defendants David Evans and Colin Finnerty were not.
After looking at the pictures, the accuser reportedly said Seligmann and three other players were at the party. She did not, however, identify any of them as her attacker. According to Durham Police Detective Benjamin Himan’s contemporaneous notes, the accuser commented, “This is harder than I thought.”
Five days later, on March 21, officers again showed the accuser team photographs, this time of approximately 37 players. Seligmann, again, was among them. Detective Himan noted at the time, “She was unable to remember anything further about the subjects.” Another investigator, Richard Clayton, wrote, “She again stated the photos looked the same.”
On April 4, officers showed the accuser, in one officer’s words, “mug shot-style photographs” taken 10 days earlier of every white player. Rather than follow Durham police procedure where photos of non-suspects are interspersed with potential suspects, Nifong instructed officers to show only these photos to the accuser.
As Durham Police Sergeant Mark Gottlieb later wrote, “We [were] under the impression the players at the party were members of the Duke Lacrosse Team and instead of doing a lineup or photographic array, we would merely ask the victim to look at each picture and see if she recalled seeing the individual at the party.”
Before viewing the photos, the accuser was told by Sergeant Gottlieb that she would be “look[ing] at people we had reason to believe attended the party.”
On the seventh photo, she identified Seligmann: “He looks like one of the guys who assaulted me."
“How sure of that are you?” Gottlieb asked.
“100%”, she said, then described what he had made her do to him.
DEFENSE STRATEGY
Under North Carolina law, and across the country, identifications are suppressed when the procedure is “so suggestive as to create a substantial likelihood of irreparable misidentification.” Seligmann’s attorneys will argue that this is exactly what happened between March 16 and April 4. In order to be successful, they must convince Judge Osmond Smith of two things.
First, they must prove that the three identification attempts improperly suggested certain persons, including their client, over others.
They’ll likely do this by detailing how the officers downloaded Seligmann’s team photo and showed it to the accuser on March 16 and 21 and waited until March 23 to obtain, and later use, a court-ordered photograph. Furthermore, they’ll point out that on the first two identification attempts, Seligmann’s photo was shown to the accuser along with two or three dozen other players’ pictures, while other players, known to be at the party, were excluded, along with potential non-suspects.
Second, they must convince the judge that the D.A. and the officers made it substantially likely that certain persons, not just Seligmann, could be picked over others.
While Seligmann’s attorneys will continue to highlight that the officers only showed potential suspects to the accuser on each occasion, they’ll explain how the officers included Seligmann’s photo each time they increased the number of players and then informed the accuser before her third try that she was “look[ing] at people we had reason to believe attended the party.”
Paraphrasing David Evans’ attorney Joseph Cheshire, the accuser had the comfort of taking three multiple choice tests knowing there were never any wrong answers.
SUPPRESSION AND THEN DISMISSAL
Woven throughout the defense attorneys’ arguments will be the strong proposition that the three identification procedures, taken as a whole, offended “standards of decency, fairness and justice.” They’ll make a compelling argument that the D.A. and police officers suggested certain players, including Seligmann, unnecessarily through their arbitrary selection and improper use of team photographs, gratuitous statements to the accuser and failure to include non-suspects on each occasion. By doing so, they created a scenario ripe for mistaken identification.
If Judge Smith agrees, under North Carolina law and that of the U.S. Supreme Court, he will suppress the accuser’s identification of Seligmann and any later attempt to identify him in court.
If that happens, Nifong will have no other choice but to dismiss this case.
For more info on the Duke case, and Paul Caulfield’s stories on co-defendants Colin Finnerty and Dave Evans, check out www.insidelacrosse.com.
"Procedurally speaking, the silver bullet to the case against Seligmann,
which will ultimately prove fatal, is how the accuser was shown his picture
three times before finally identifying him as one of her attackers. Along with
every other misstep Durham County District Attorney Mike Nifong has made
in this case, he will bear the blame when Seligmann’s identification is suppressed
and his case dismissed."
Why would the defense need to debate alibies when all they need to do is trot
out Precious's stripper girlfriends to testify how she made it all up to get the
white boy's money?
Nifong can have them all swear on the Bible a dozen times, but a typical
Durham jury will see immediately what this has been all about from day one.
The defendants need not say a word.
Then perhaps when all these liars and thieves are gathered at the courthouse,
the real arrests can start being made.