Duke lacrosse case may not come to trial until next spring

Belleville News democrat ^ | 05/06/06 | AARON BEARD

[Perdogg]

DURHAM, N.C. - Mike Nifong emerged from his first campaign for public office with a victory and a confident smile, saying he was eager to get back to running the district attorney's office.

He also spent plenty of time during the campaign shunning questions from reporters about the rape investigation against two members of the Duke University men's lacrosse team.

It's a task he'll have to get used to considering the long road ahead.

Nifong said he doesn't expect the case to come to trial before next spring, setting up an intense and lengthy standoff between sides that have refused to budge

[stands2reason]

See, that's your problem, you are a pushover! Gotta learn to say "no" once in a while.

Seriously, if I ever get that far east, I'll only put you out to the tune of a pot of coffee. Deal?

[Howlin]

Deal! And I'll talk you into staying.

The one-nighters don't bother me........LOL. It's the open-enders who use some of my cars while they visit everybody they know......well, you get the picture. :-)

[Law is not justice but process]

"Heck, if a judge refuses a COV I think the defense might be able to appeal that ruling immediately, even before the trial starts."

Refusal to grant a change of venue can seldom be the subject of an interlocutory appeal. There must be a final judgment before such a thing can be appealed. I should think such a change of venue would be granted, though, if only because of the repeated "rallies" in support of the victim. The defense needs to show a fair trial could not be obtained in the original venue. All the defense needs to do is show the television tapes from the rally.

That said, however, one of the requirements of a change of venue is that the new venue have similar demographics to the original. In the narrow views of the courts, that has always been interpreted as similarity in racial makeup of the two venues. I am not sure a change of venue could thereby be a great comfort to the defense.

[Mad-Margaret]

You offer free accommodations and transportation in the Triangle? You ARE a pushover!

[snarkytart]

That said, however, one of the requirements of a change of venue is that the new venue have similar demographics to the original. In the narrow views of the courts, that has always been interpreted as similarity in racial makeup of the two venues. I am not sure a change of venue could thereby be a great comfort to the defense.

_____

Really, is this the law everywhere, because the Rodney King case was moved from LA(heavily minority) to
Semi Valley(mostly white), and OJ case was moved from Brentwood(mostly white) to LA (heavily minority).

Those are the only two high profile cases that immediately came to mind after you stated the requirements about similar demographics for a COV.

[Howlin]

Yes. I'm thinking of adding on in case there really is a trial.

You can all come and we'll go over for the festivities!

:-)

[GAgal]

Is the defense now in possession of the women's phone records, the SANE/tox reports, statements made by the false accuser and Kim, interviews with the boyfriend and escort service owners, etc?

[jiggyboy]

In CA they define "speedy trial" not by statute as a certain number of days for a certain offense, but as the number of days elapsed for some percentile of cases (upper 75th?) that actually come to trial.

The court asks you at your arraignment if you waive your right to a "speedy trial", which is still a longer period than you think it would be. If they have the same option in NC I can't imagine that the two boys would have done that.

[Alia]

Thanks, Howlin!

[NCjim]

If you want to hide out in NJ you are always welcome here.

As my wife's cousins from Freehold taught me to ask when encountering someone from New Jersey. "What exit?" *g

[bwteim]

"I'm putting my foot down this time."

Ahem, yeah, right, sure you will ... ;)

But I agree, two weeks is a long time. Beg off with a bad cold and hide out in the bedroom with your PC.

[OldFriend]

LOLOL.......trust me, all of the state is not lined up along the Parkway or the Turnpike.

[Protect the Bill of Rights]

"...drive some of my cars...." did it for me.
Please,
Turn down my bed
Leave on a light
Don't wait up

:-)

[TexKat]

Thanks for the ping Howlin

Long road ahead in Duke lacrosse rape case

Updated: 8:17 p.m. ET May 7, 2006 DURHAM, N.C. - Mike Nifong emerged from his first campaign for public office with a victory and a confident smile, saying he was eager to get back to running the district attorney’s office.

He spent plenty of time during the campaign shunning reporters’ questions about the rape investigation of two members of the Duke University men’s lacrosse team.

He’ll likely spend much more time facing such questions, considering the long road ahead.

Nifong said he doesn’t expect the case to go to trial before next spring, setting up an intense and lengthy standoff between prosecutors and defense attorneys.

“This will be a long process,” said lawyer Bill Thomas, who represents a player not charged in the case. “And you can expect these lawyers will take their time and they will be prepared on trial day.”

To listen to defense attorneys, Nifong has no case. They say the two players charged are innocent and weren’t at the off-campus party when the woman said the assault occurred. The only evidence connecting them to the accuser should be thrown out, their attorneys argue. The accuser is an unreliable witness who falsely cried rape before, they say.

The defense attorneys also suggest that Nifong should be removed from the case because he has pursued it for political gain.

But Nifong, emboldened by his victory in Tuesday’s Democratic primary for Durham district attorney, vows to press ahead. He’s unopposed in the general election.

He says a sexual assault occurred at the party nearly two months ago and that a third player may be charged. He has repeatedly denied that politics played a role in pursuing the case.

“I’m satisfied with the decisions that I’ve made,” he said. “I’m still satisfied with them.”

A grand jury indicted sophomores Reade Seligmann, of Essex Falls, N.J., and Collin Finnerty, of Garden City, N.Y., on charges of rape, kidnapping and sexual assault.

Both have been released on $400,000 bond and are scheduled to appear in court May 15, which coincides with the next grand jury meeting and the expected results of further DNA testing.

Thomas said it could take nine months to deal with pretrial motions and other issues, including a motion filed by Seligmann’s attorney, Kirk Osborn, that seeks to throw out the photo identifications made by the accuser.

It’s the only piece of evidence linking Seligmann and Finnerty to the case, defense attorneys say, noting that initial DNA tests failed to link any player to the accuser. Osborn’s motion called the photo lineup “unnecessarily suggestive” because the accuser was shown only photos of lacrosse players.

Larry Pozner, a defense attorney for 32 years and the former president of the National Association of Criminal Defense Lawyers, agreed that the procedure was flawed.

“I thought it was a stacked deck,” said Pozner, who lives in Denver. “It didn’t matter who she picked. She was always going to be picking someone on the team.”

But Norm Early, a former district attorney who works with the National District Attorneys Association, said defense attorneys often attack the reliability of photo identifications.

“From their prospective, they don’t think there’s any such thing as a perfect lineup,” Early said.

Defense lawyers complain that Nifong ignored potentially exculpatory evidence, including Seligmann’s alibi: a cab driver’s recollection of driving Seligmann and a friend to a bank ATM, a fast-food restaurant and his dormitory.

Bill Cotter, who represents Finnerty, has declined to comment on his client’s whereabouts, but defense attorneys insist that neither player was at the party at the time the woman says the attack occurred.

Nifong is unimpressed with the alibi argument offered by Seligmann’s attorney.

“He’s saying that according to his timeline the crime couldn’t have happened,” Nifong said. “And who says that’s my timeline?”

He also said in an interview on MSNBC earlier this week that it’s “probably safe to say” that he has more evidence than has been reported by the news media.

Pozner is eager to find out exactly what other evidence is out there.

“You can say, ’I don’t have to have DNA.’ No, you don’t have to have DNA,” Pozner said. “But you have to have something. I’m waiting to hear what the something is.”

[TexKat]

Black Students Empathize With Rape Accuser

by UPI Wire May 7, 2006

DURHAM, N.C. - May 7, 2006 (UPI) -- Students at North Carolina Central University are showing support for a classmate who accused Duke lacrosse players of raping her in March.

The alleged victim is a mother of two who moonlighted for an escort service while attending North Carolina Central, a predominantly black college.

Three miles from the Gothic splendor of Duke, the state university is plunked down on a stretch of Fayetteville Street near a plaza with hot wings, hair salons and bail bonds. Because 61 percent of students at the state university receive need-based financial aid and many work jobs on the side, stripping to help pay for education and living expenses is something they can understand, The Washington Post reported.

Kristiana Bennett, a junior at North Carolina Central with a child and a part-time job, said she only met the accuser in passing once -- but she can relate to her financial circumstance.

"Both of us are single mothers," said Bennett. "And both of us are poor."

The alleged victim has had previous experience with the legal system. Once, while intoxicated, she stole a car from a patron at an adult entertainment club, and she went to police when she was 17 and reported that she had been raped by three men when she was 14, the newspaper reported.

[Law is not justice but process]

Based on your examples, I would have to conclude it is not the law in California. It is in my state, and I thought it was the majority rule. I am surprised my little southern state would be more liberal than California.

[TexKat]

Why the rush to protect 'our own'?

We must not assume all accused are guilty

There's an "equity of unfairness"

There's an "equity of unfairness" in the rape allegations regarding the Duke lacrosse team that should prove illuminating, regardless of the outcome.

There's genuine outrage within the Duke student community that perception has negatively painted everyone with the same brush, wrongly branding all who are white and rich as privileged to the point of criminal arrogance.

It isn't any fun having people making broad generalizations based on a convenient stereotype, is it?

Welcome to the fraternity, folks.

[snarkytart]

What state do you live in, is it North Carolina?

Isn't what constitutes the "same demographic" a call by the judge?

In other words, the judge could move this trial to an area with more of a white population but say it is still the same demographic because of the income, education levels, etc.

Do you think it's always about race? I do not think a judge is ever going to be able to match every aspect of one area to another. Certainly, something will have to be compromised.


I guess we will see.

[A CA Guy]

I thought the defendants had a right to a speedy trial?

The kids should make the prosecutor present the case sooner rather than later.

[snarkytart]

Below is an appeal ruling from a NC court on the issue of COV. Can you tell us what exactly they are saying about the rules/laws governing COV in NC?

From what I can understand, same demographic is not a requirement, but I definitely could be misreading something.

Thanks.

RULING:

"If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

(1) Transfer the proceeding to another county in the prosecutorial district as defined in G.S. 7A-60 or to another county in an adjoining prosecutorial district as defined in G.S. 7A-60, or

(2) Order a special venire under the terms of G.S. 15A-958. The procedure for change of venue is in accordance with the provisions of Article 3 of this Chapter, Venue.

N.C.G.S. § 15A-957 (2001). We agree that the trial court found that defendant failed to present a sufficient showing of prejudice to change venue, but we disagree that the trial courtlacked the inherent authority, in its discretion, to change venue.

It is well settled that “[n]otwithstanding this apparent statutory limitation upon the power of a court to order a change of venue, a court of general jurisdiction . . . has the inherent authority to order a change of venue in the interests of justice.” State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524 (1979) (citing English v. Brigman, 227 N.C. 260, 41 S.E.2d 732 (1947)), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). “In either case, a motion for a change of venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing of an abuse of discretion.”

Id. A judge of a superior court “on his own motion, in his own discretion and in the furtherance of justice, has the authority to transfer a case from one county to another,” State v. Chandler, 324 N.C. 172, 183, 376 S.E.2d 728, 735 (1989) even in the absence of express statutory authority. “Such power existed at common law, and, therefore, unless specifically denied by statute, still adheres in the courts of the country.” Brigman, 227 N.C. at 261, 41 S.E.2d at 732. “These statutory limitations on the power of a court to order a change of venue are preempted by the inherent authority of the superior court to order a change of venue in the interest of justice.” Chandler, 324 N.C. at 183, 376 S.E.2d at 735 (citing Barfield, 298 N.C. 306, 259 S.E.2d 510".