Posted on 05/15/2006 7:14:12 AM PDT by pissant
DURHAM - A Durham grand jury is scheduled to meet today, and the session could mean new charges in the investigation of a reported rape at a Duke lacrosse team party.
Two of the team's players were indicted in April on charges of first degree rape, first degree sex offense and first degree kidnapping. They are accused of assaulting an escort service dancer in a bathroom of a house at 610 N. Buchanan Blvd. Their lawyers say the men are innocent, and lawyers representing dozens of team members say that no sex or assault occurred at the March 13 party.
But the woman says she was attacked by three men, and Durham District Attorney Mike Nifong said he has been working on bringing charges against a third person.
WHAT WILL HAPPEN TODAY? If Nifong decides to submit the case, police investigators and possibly other witnesses will try to convince grand jurors in a secret session that the state has probable cause to bring a case forward. Grand jurors will hear only the prosecution's side of the case. The standard required for a true bill of indictment is far lower than the beyond-a-reasonable-doubt standard required for a conviction.
IF INDICTMENTS ARE ISSUED, WHEN WILL THEY BECOME PUBLIC? On April 17, a judge ordered the indictments in the lacrosse case sealed. The names of the players who were indicted were not released until 5 a.m. the next day when the players surrendered at the Durham County jail. If Nifong again requests that the indictments be sealed, the law allows a judge to keep them secret until the person is arrested or appears in court.
WHEN WILL ALL THE EVIDENCE BE REVEALED? State law requires prosecutors to turn over all of their case files to defense lawyers, but nothing requires the evidence to be turned over to the public. In open court hearings, lawyers often discuss some of the evidence, but the state's case may not be revealed until trial. No trial dates have been set. When a report on the DNA testing is complete, Nifong is required by law to turn it over to all 46 members of the lacrosse team who submitted DNA samples.
WHAT HAPPENS NEXT? The cases against Reade William Seligmann, 20, of Essex Fells, N.J., and Collin Finnerty, 19, of Garden City, N.Y., are moving forward. Finnerty has a court date in June. Seligmann is scheduled to appear in court Thursday. His attorney, Kirk Osborn, has filed a series of motions challenging Nifong's handling of the case and asking a judge to bar the prosecutor from further involvement.
Yes, but he's reached new lows for "lackeyness" and is approaching "gun-to-head hostage" status.
Under 3 minutes per case!
(05/15/06 - DURHAM) - A third indictment in the Duke University lacrosse team rape case is likely and it will involve the player identified with "90 percent certainty" by the alleged victim during a photo lineup, ABC News has learned.
According to multiple sources, the defense attorney representing the player got a courtesy call from Durham County District Attorney Mike Nifong alerting him of a possible indictment. Although defense attorneys are expecting an indictment and have been told that one is likely, prosecutors could change their minds and plans at any time.
According to the DNA report, tests specifically designed to look for semen found none on swabs of the alleged victim's mouth or genital areas. This is noteworthy, defense lawyers said, because in at least one affidavit and in the transcript of the photo identification lineup, the alleged victim said she was raped orally, vaginally and anally by three members of the Duke men's lacrosse team.
However, numerous prosecutors have told ABC News that a rape could have occurred and that convictions were possible even if there was no semen found on the accuser. The alleged victim does not say in any affidavit whether any of her attackers ejaculated during the alleged assault.
The report also says that tests looking specifically for blood on the fake fingernail found in a bathroom trash can were negative. This could be significant because the accuser has said that she broke her fingernails while defending herself against the alleged attackers, and scratching them. It is unclear, however, whether her scratches drew blood.
One of the three men has told ABC News that he spoke to the alleged victim the night of the March 13 party. Another man is the alleged victim's boyfriend, and defense attorneys identified him in a news conference as the "single source" of DNA found to date in vaginal swabs of the accuser.
It is unclear why the three nonlacrosse players were included in the sampling.
Defense attorneys have complained that the report does not say whether DNA was found from people other than those who provided samples the lacrosse players, the boyfriend, and the two other men. There is no way of knowing whether there was DNA from other people found on the alleged victim, the defense argues.
The report says that genetic material with the same characteristics of two lacrosse players was found underneath a plastic fingernail in a trash can in the bathroom where the accuser says she was attacked. This may have been the link prosecution sources referred to when they told ABC News that test results could be "helpful" to the prosecution.
Neither of the two men linked to the sample were Reade Seligmann or Collin Finnerty, the two Duke lacrosse players indicted in the case. However, the third Duke player who may be indicted soon was in the mixture.
A DNA link is not clear cut with the type of test used in this case, DNA experts told ABC News. ABC News spoke with DNA analysts, including Brian Meehan, head of the Burlington, N.C., laboratory that conducted the set of tests used in the case. All of the analysts agreed that the most one could say about a specific person the alleged third attacker in the Duke rape investigation was that he could not be ruled out, but also could not be definitively ruled in.
"It's not what [prosecutors] were hoping for," said David Rudolf, a North Carolina defense attorney. "It's obviously somewhat helpful, but not nearly as much as if it was a match. Instead it's simply consistent with one of the players at the party."
The fact that the DNA sample found on the nail was a mixture makes it more difficult to be certain that it can be linked to any given person, experts said. Because many people in the general population share the same genitive traits, said Dr. Elizabeth Johnson, a California-based DNA expert, "there would be many people who could have the same traits as what shows up in the mixture."
Defense attorneys are already trying to use the lack of a clear-cut link to bolster their case.
"This report shows no conclusive match between any genetic material taken on, about, in, or from the false accuser and the genetic material of any Duke lacrosse player," said attorney Joe Cheshire in a news conference.
Is a positive identification and possible linkage of DNA enough for a third indictment? Nifong proceeded with the first two indictments against Finnerty and Seligmann with no DNA match. In his case against the player defense sources say may be indicted today, Nifong has both an identification and a possible DNA link with the fake fingernail.
Nifong has said that even in the absence of any DNA match, he can still take this case to trial the "old-fashioned way" of putting a victim on the stand. He has cited a statistic that 75 percent to 80 percent of rape prosecutions proceed without DNA evidence. As a general rule, Meehan whose lab produced the DNA report agrees the absence of DNA does not kill a prosecutor's case.
"It's not necessarily true that no DNA means no crime," Meehan said. "There needs to be additional evidence."
Although much of the possible evidence made public to date may favor the defense, the strength of key elements for the prosecution remains unknown. Details of the alleged victim's medical report and of a toxicology report from that night could be crucial. The prosecution could also have witnesses, photographs or videos of that night that might bolster its case.
Perhaps most critically, Nifong has one piece of evidence that no one in the public or on the defense can even approach: the opportunity to speak with the alleged victim. ABC News' Gerry Wagschal contributed to this report.
"Persecution" not "prosecution".
I just cannot believe we ALL could be wrong about this. I just can't.
I'm remembering that they got a "letter of intent" threatening them with a court order. It was stupid of them to comply without the court forcing them to go in.
LOL
You warned me about him before....what a tool he is!
They'll file a complaint against NiFong with the BAR when the time is right. They need everything in front of them from NiFong's side and they don't have that yet.
since you brought it up, please show reference where any of that is in court documents and not from some defense attorney's public slant trying to demean the victim...
otherwise, let's keep to the facts and keep to this case....
sorry...I'm so mad I'm double posting!
The defense should not have a problem getting a change of venue away from the city of Durham, but as I understand it in North Carolina a change of venue typically only goes to another county in the same prosecutorial district or to a neighboring district. So it would probably get moved to a county within the adjoining districts that is considered to be in a different media market (probably not Raleigh, but perhaps Roxboro?) but probably not to, say, somewhere like Asheville. On the other hand, the publicity in the entire part of the state is so intense that perhaps an exception will be agreed to here. The defendants do not have a legal right to a jury of whites, and on the contrary, I understand that in North Carolina the judge may take into account the racial breakdown of the proposed new venue before agreeing to a change.
As I proposed several weeks ago for RS and CF, he should report to the courthouse dressed in a ham sandwich costume.
You and I went head to head over that one. You were wrong. It is in the DETECTIVE'S TESTIMONY at the preliminary hearing.
Don't try to distract from this thread.
Exactly but I bet he left out the DNA info. He knows that less than 13 is a "No Match".
_________________________________________________
No Nifong told the Grand Jury:
1. She IDed Evans. [He might have said with 90% confidence.]
2. He found DNA on the nails consistent with Evans.
Both statements are true. You know it is not a match. You know the nails were in the trash and Evans may have put them there or taken out to give to the police. You know about the moustache.
The Grand Jury does not. Even if they do from outside information they legal are not to use such information.
There are lawyers in NC foaming at the mouth over this fiasco. And not just the Duke grads either, although they lead the pack.
From the CTV board and signed it with that smiley face holding the flag:
Congratulations to the Grand Jurors, they did their job. Which was to evaluate the evidence presented by LE and the DA and determine if it was incriminating enough to persuade them a crime was committed. That's done, they gave the DA his indictment. Now, it's onto trial where the indicted ones can present their defense before a jury.
--- I can't stand that woman. You know who I mean. Initials: RL
The DNA belongs in the wastepaper basket......Oh...forgot, that's where it came from.
Dave Evans is one of the two who went VOLUNTARILY to the police to discuss the accusations.
At least he got to graduate. Any earlier and he would have been automatically suspended.
Evans's father is a K Street lawyer and his mom is a lobbyist. I can hardly wait to learn who his parents have hired to defend David.
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