Defense Calls for Evidence in Duke Rape Case

Lawyers representing one of three Duke University lacrosse players charged with rape want details about any toxicology tests performed on the accuser, asking in a motion filed Monday whether such evidence even exists.

"No such toxicology report, if it exists, was provided to the defense," wrote attorneys Kirk Osborn and Ernest Conner, referring to nearly 1,300 pages of evidence prosecutors provided to defense attorneys last week. The attorneys represent Reade Seligmann, one of three lacrosse players charged with raping a woman hired to perform as a stripper at a March 13 team party.

Seligmann's attorneys want a judge to order prosecutors to provide any reports "generated from blood, urine or other biological samples" collected from the accuser. In the motion, they cited a story published in Newsweek earlier this month that said District Attorney Mike Nifong "hinted" such tests would reveal the presence of a date-rape drug.

Authorities have said a doctor and specially trained nurse performed a physical exam on the accuser that found evidence of sexual assault. But the nurse who filled out a report on that exam indicted no toxicology tests were performed, according to the defense motion.

What if the DA simply refuses to hear any evidence, i.e. where suspects might have been, or how it would be impossible for them to have committed the crime for any reason?

Unfortunately there really aren't very good remedies for the suspects to use directly against the DA in such a situation. Of course, they can always present such evidence at trial and convince a jury they are innocent.

Again, their best legal shot is a federal civil rights 1983 claim against the local government. Some of the other posters are more optimistic than I am on the chances of ultimate success on this.

The state bar authority might discipline Nifong for being unwilling to consider proffered evidence, but I wouldn't count on anything more than a slap on the wrist resulting from that.

In theory the state could prosecute a DA who brought charges maliciously, but I wouldn't count on that happening here.

Testing tissue and organ samples from dead bodies, exhumed or ot, is a completely different matter from testing a blood sample from a blood draw. Drugs dissipate over time, but not at the same rate. Some drugs have much shorter half-lives than others. Roofies are gone in about three days, very short.

Usually what is tested for in a body that's been exhumed is a poison that wasn't suspected during autopsy, not a drug, unless it was a drug likely to cause death that wasn't suspected previously, such as morphine in an elderly person. Otherwise, it would more likely be a poison because a natural death or accidental death was now being suspicioned to be murder for whatever reason, or DNA being tested to confirm identification, and that's going to be tissue, hair, or even bone, not blood, not urine. Apples and oranges.

I'm telling you guys get ready for the new refrain from the talking heads: Let's let Justice work, let's wait and see.

I've heard this more and more on the radio driving thru some big cities. The News Corpse doesn't want to hear any more now, it led the News every night when it was information incriminating to the players, now when it's information setting the record straight or making people look at this case differently - the refrains are STOP!

Suddenly, discussing the case somehow prohibits a thorough hearing of the evidence in court. Suddenly, who are we to discuss such things - we are Lawyers nor Judges: we have no business hearing all this evidence.

It was predictable, I'm hearing it on the radio, I've heard it on TV. The Newspapers are selecting letters echoing this
sentiment for print. The NACCP is having Press conferences announcing court filings asking for a GAG order.

Think about that - a press conferenece to ask for a Gag order!

Here's referenced story:

http://www.herald-sun.com/durham/4-738328.html

Gag order sought in lacrosse case

BY PAUL BONNER : The Herald-Sun
pbonner@heraldsun.com; 419-6621
May 24, 2006 : 11:11 pm ET

DURHAM -- A lawyer with the state NAACP said the civil rights organization intends to seek a gag order in the Duke lacrosse case, and a journalist who participated in a forum with him on Wednesday said media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.

Al McSurely, an attorney who chairs the Legal Redress Committee for the state National Association for the Advancement of Colored People, said he generally respects the defense attorneys in the case as colleagues. But they are violating the State Bar's rules of professional conduct that discourage comments outside court that are likely to prejudice a case, he said.

The NAACP will try to intervene in the case to file a "quiet zone/let's let justice work" motion. That is otherwise known as a gag order, he acknowledged, although he said he doesn't like that term.

McSurely's comments came amid the first-ever Durham Conference on the Moral Challenges of our Culture at First Presbyterian Church downtown. The session gave the approximately 150 people who attended a chance to hear a series of talks and discuss among themselves sexual and domestic violence, racism, class distinctions and the media.

The Duke lacrosse rape case has sparked a broader and long-overdue examination of some of those issues, said people who participated in the forum, sponsored by the state NAACP and Durham clergy.

Cash Michaels, a journalist with The Carolinian newspaper of Raleigh, said, to applause, that lawyers for the three lacrosse players charged in the case "are playing the media like a banjo."

Leaks of case information intended to impugn the alleged victim's credibility, and resulting news coverage and analysis, cloud her right to have the allegations tried in court, Michaels said.

"We are seeing powerful forces trying to remove that right from her," he said, and questions about the accuser -- an exotic dancer -- are amplified by the media.

Conversely, he said, a Web site he oversees has received words of encouragement for her from as far away as China. The site, www.ourheartsworld.com, calls her, "our sister survivor."

Monica A. Coleman, director of womanist and religious studies at Bennett College in Greensboro, told the gathering that sexual assault is underreported because of society's skepticism and intimidation of its victims, both subtly and not-so-subtly.

"Rarely do people say, 'I don't believe you,' " Coleman said. "More often than not, it's something like, 'Well, are you sure?' 'Well, what were you wearing?' 'What were you doing there?' or 'What did you expect?' What woman would knowingly, willingly, open herself up to that kind of scrutiny?"

William C. Turner Jr., an associate professor of the practice of homiletics in Duke's Divinity School, traced "racism's ontological root" to 19th century exponents of white superiority who attributed the belief to God's will for the natural order. Even though their arguments have long since been repudiated, the sentiments still exert an effect on religion and society, he said.

"Even when the discourse is removed ... it's rooted in the very foundation of our understanding of God, and it is woven into the fabric of our social philosophy, Turner said. "It remains even when people stop using that language."

The session was announced May 5 by the Rev. William J. Barber II, state conference president of the NAACP, and other ministers including First Presbyterian's pastor, Joe Harvard. It included a roundtable discussion accompanied by presentations from perspectives in theology, civil rights and journalism. It was especially designed to include voices of advocates and workers who address domestic and sexual violence.

"This is not just about one incident but about a whole reality in which many have been affected," Barber said.

N & O Letter to the Editor from one of the attorneys

http://www.newsobserver.com/559/story/443056.html

43 players, certified as not guilty

Alex Charns
DURHAM - Imagine this front-page headline: "DA clears 43 Duke lacrosse players of gang rape cover-up."

Keep imagining. A false allegation lasts forever. Exoneration is fleeting and often not as visible. The falsehood gets front-page news and vivid photos splashed on the television news. Innocence comes inside the newspaper, and not at all on TV.

So it was last week with the Duke University lacrosse-stripper-student mom-alleged gang rape scandal in this former tobacco town, where I practice law, raise my children and where my kids and I play one of those so-called "helmet sports."

Last week, my client and 42 other Duke lacrosse players were cleared of criminal wrongdoing by the Durham County district attorney. It was a backhanded apology for earlier accusations of cover-up and stonewalling that he had made against them.

DA Mike Nifong wrote in a press release: "At the outset of this investigation, I said that it was just as important to remove the cloud of suspicion from the members of the Duke University lacrosse team who were not involved in this assault as it was to identify the actual perpetrators. For that reason, I believe it is important to state publicly today that none of the evidence that we have developed implicates any member of that team other than those three against whom indictments have been returned."

As welcome as this press release was, it can't overcome the earlier, repeated, nationally publicized statements accusing the players of "covering up for a bunch of hooligans."

And what of the Durham police crime posters pasted around town accusing the guys of covering up a known, not alleged, gang rape and sodomy? The police department, instead of apologizing, has offered only silence.

Neither have the sports pundits apologized after blaming the "helmet sport" gang mentality for the "code of silence" and maligning all who play lacrosse, hockey and football.

The three young men charged will have their day in court, and will get a chance to clear their names in a public and highly publicized trial. Their 43 teammates, falsely accused without being formally charged with anything, received their exoneration inside the newspaper.

(Alex Charns, an attorney, is author of "How Hockey Saved the World.")

bttt...

So true.....IF tomorrow the DA fully, finally realizes the error of his vicious ways, and absolves the 3 young men from any and all charges...

...it will be buried bottom fold, page 12...

..the TV & all media will NOT be waiting in front of their homes, with contrition & apologies... to interview these young men and ask them how they feel about having their reputations slandered across the world....

..their parents financial situation broadcast to everyone....

..and their lives put on hold...jobs, schooling, etc.

Sickening!

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