Attorneys in Duke rape case file motion to get lineup report

Winston-Salem Journal (NC) ^ | Sunday, May 28, 2006 | staff

[Almagest]

<< Skinny guy, big guy, mustache guy.......Surprised there wasn't a "top-hat guy" in there.... >>


BWAAAA-HAAAAA! Umbrella man.... babushka lady....

[Mike Nifong]

You know my theory, but let me repeat it (humor me).

People administering IDs can convey things even unintentionally. We all learned how to read non-verbal language before we read or spoke sentences.

With this bunch it's easy to believe it was overt and intentional, but it didn't have to be.

I think the Investigators, the same guy administering the photo lineup, thought the bunch of them was lying. There was a wall of silence. Even though they had been threatened and rattled - the 18 and 19 years olds held firm in the face of adversity. I think the investigators (they ALWAYS have a theory) most likely thought the 23 old uniamiously voted as Team Captain - David Evans - was one of the only guys the could keep them all in line. So, either they thought he was holding them together or they may have thought if Evans was facing charges and pressure was brought to bear on him, he may back off on the flock or cave and bring the whole thing down like a house of cards.

It's only a theory, but I do know how the media works. Most of these media people run with theories given to them off-the-record or hinted at during a supposed hypothetical conversation. I don't think it was a coincidence that Geraldo was on National TV with O'Reilly saying that the week of the indictments he expected the soft white boys to run to the DA to get plea deals to avoid 20 year sentences.

I think someone on the Prosecution side of house was floating those theories and it also explains why the media was also so sure the team was guilty. Ostensibly they were not going to run and plead to crimes they didn't commit.

How many times has a Doctor or Nurse asked you questions during or after a test and you KNEW from the question or their reaction there was a problem with the test?
If the prosecution thought this was the guy, they could've easily telegraphed it before the offical lineup process. If I keep asking you questions about one guy and keep showing you his picture. It doesn't take long to pick up on the fact that you have suspicions about that guy.

[David Allen]

You asked whether rape is a favorite male fantasy.

It is not for most men.

It's my impression that is more of a female fantasy.

[Mike Nifong]

You are right. Not only in the DNA way, but his office is pre-occupied with this case. Nifong has made the highly unusual announcement that he himself will even try this case.

I'd write the list of serious crimes that have occured in Durham over the last 45 days, but I do want to get Carpal Tunnel Syndrome.

I know kids have been shot, a man was shot point blank in the face. A man was found murdered in a Car dealer's lot. There's been home invasions. Multiple Rapes.

Children have been poisoned (Lead-poisoning) by Durham City Water - and the City Manager is running around playing Public advocate and spokesperson for Mike Nifong as it relates to this case.

Even the manpower that is being used to "protect" the AV is ridiculous in a place with serious crime problems like Durham.

This is why Distric Attorneys have a responsiblity to only bring cases that they can prove beyond a reasonable doubt, due to the practical realities of our justice system.

[Ken H]

I don't think it was a coincidence that Geraldo was on National TV with O'Reilly saying that the week of the indictments he expected the soft white boys to run to the DA to get plea deals to avoid 20 year sentences. I think someone on the Prosecution side of house was floating those theories and it also explains why the media was also so sure the team was guilty.

Think the DA might be floating this?--

http://www.freerepublic.com/focus/f-chat/1639275/posts?q=1&&page=58#58

[Mike Nifong]

I read that.

I just don't see the players, their families, or representatives agreeing to that deal. There seems to be holes in the case wide enough to drive trucks through and innocent people aren't inclined to plead guilty to anything.

The players really have acted innocently. The no-sex of any kind stance was highly unusual for a rape defense. Remember, how many talking heads said the Defense was making a mistake by boxing themselves in with their story. One Defense lawyer was picked for Stupid Guy of the week or something because they said the Defense was talking too much. Nancy Grace encouraged them to keep talking because they were going to get their clients convicted.

So, it could be a trial balloon, but I don't see the point for the players to take that deal.

[Perdogg]

38 Breck Archer MIDFIELDER 6-0 190 Jr. Sea Cliff, N.Y. (Taft)

31 Bo Carrington MIFIELDER 6-4 220 So. Charlottesville, Va. (Covenant School)


37 Casey Carroll DEFENSE 6-2 180 Jr. Baldwin, N.Y. (Baldwin)

29 Mike Catalino MIDFIELDER 6-0 200 Fr. Webster, N.Y. (Webster Schroeder)

17 Tom Clute DEFENSE 6-1 190 Fr. Potomac, Md. (Bullis)

46 Kevin Coleman DEFENSE 6-2 185 Sr. Ridgewood, N.J. (Delbarton)

19 Josh Coveleski ATTACK 6-4 205 So. Dover, Del. (Ceasar Rodney)

22 Ned Crotty MIDFIELDER 6-1 180 Fr. New Vernon, N.J. (Delbarton)

40 Matt Danowski ATTACK 6-0 190 Jr. Farmingdale, N.Y. (Farmingdale)

8 Ed Douglas MIDFIELDER 6-2 170 Sr. Baltimore, Md. (Gilman)

15 Kyle Dowd MIDFIELDER 5-9 175 Sr. E. Northport, N.Y. (Northport)

6 David Evans DEFENSE 5-10 190 Sr. Bethesda, Md. (Landon

13 Collin Finnerty ATTACK 6-3 175 So. Garden City, N.Y. (Chiminade)

12 Dan Flannery ATTACK 5-11 190 Sr. Garden City, N.Y. (Garden City)

7 Gibbs Fogarty ATTACK 5-10 175 Fr. Chevy Chase, Md. (Landon)

25 Zack Greer ATTACK 6-2 185 So. Whitby, Ontario (All Saints Catholic)

23 Erik Henkelman DEFENSE 5-10 175 Sr. Swathmore, Pa. (Episcopal)

49 Jay Jennison DEFENSE 6-4 205 So. Richmond, Va. (St. Christopher's)

26 Ben Koesterer MIDFIELDER 6-1 195 So. Cazenovia, N.Y. (Cazenovia)

11 Fred Krom MIDFIELDER 5-10 185 Jr. Summit, N.J. (Delbarton)

1 Peter Lamade MIDFIELDER 5-9 180 Jr. Chevy Chase, Md. (Landon)

36 Adam Langley ATTACK 5-9 165 So. Glenview, Il. (Glenbrook South)

2 Chris Loftus ATTACK 5-8 160 So. Syosset, N.Y. (Syosset)

4 Dan Loftus GOALIE 5-9 160 Jr. Syosset, N.Y. (Syosset)

34 Kevin Mayer DEFENSE 6-0 185 So. Great Falls, Va. (Potomac School)

44 Tony McDevitt DEFENSE 6-0 205 Jr. Philadelphia, Pa. (Penn Charter)

41 Ryan McFadyen DEFENSE 6-6 225 So. Mendham, N.J. (Delbarton)

42 Glenn Nick DEFENSE 6-1 190 Sr. Garden City, N.Y. (Garden City)

77 Nick O'Hara DEFENSE 5-10 190 Jr. Orachard Park, N.Y. (Orchard Park)

28 Dan Oppedisano MIDFIELDER 5-11 195 Jr. Garden City, N.J. (Garden City)

32 Sam Payton MIDFIELDER 5-11 185 Fr. Cos Cob, Conn. (Brunswick)

18 Brad Ross MIDFIELDER 6-0 190 So. Darnestown, Md. (Bullis)

5 KJ Sauer MIDFIELDER 6-1 190 Sr. East Rockaway, N.Y. (Lynbrook)

20 Steve Schoeffel MIDFIELDER 5-8 165 Fr. Charlottesville, Va. (Covenant)

30 Rob Schroeder GOALIE 6-0 210 So. Summit, N.J. (Summit)

45 Reade Seligmann MIDFIELDER 6-1 215 So. Essex Fells, N.J. (Delbarton) INDICTED

50 Devon Sherwood GOALIE 5-10 160 Fr. Freeport, N.Y. (Baldwin)

47 Dan Theodoridis DEFENSE 6-1 205 Fr. Norwalk, Conn. (Norwalk)

24 Bret Thompson MIDFIELDER 6-0 185 Sr. Chevy Chase, Md. (Georgetown Prep)

3 Chris Tkac DEFENSE 6-0 185 Fr. Gaithersburg, Md. (Landon)

14 John Walsh MIDFIELDER 5-11 190 Jr. Bethesda, Md. (Landon)

9 Michael Ward MIDFIELDER 6-0 195 Jr. Setauket, N.Y. (Ward Melville)

48 Rob Wellington MIDFIELDER 6-3 200 So. Dallas, Texas (Highland Park)

21 Matt Wilson MIDFIELDER 6-0 185 Jr. Durham, N.C. (Durham Academy)

43 William Wolcott DEFENSE 6-0 190 Sr. Dallas, Texas (St. Mark's)

27 Michael Young MIDFIELDER 6-0 180 So. Manhasset, N.Y. (Chaminade)

10 Matt Zash MIDFIELDER 5-11 190 Sr. Massapequa, N.Y. (Massapequa)

[JLS]

If the prosecution thought this was the guy, they could've easily telegraphed it before the offical lineup process.

Maybe eventually, but I think the evidence indicates differently at least at first. Here is my conjecture on the IDs:

Photo array number 1, 16 March 2006: I suspect there are fillers in this one as this is three days after the party and Nifong is yet to be directly involved. Mangum fails to ID any lacross players. The investigators are not too worried afterall they have DNA evidence.

Photo array number 2, 21 March 2006: Nifong has stepped in and ordered the DPD to violate their own policy and give her the multiple choice quiz with no wrong answers, ie a photo array with no fillers. She of course fails it and does not pick anyone. No big deal still, they still have DNA test results coming. [Part of the reason I conjecture this is that Nifong says at the 11 April 2006 Forum at NCCU that he will take the case to the grand jury as soon as she IDs someone.]

Photo array number 3, 4 April 2006: Though the first round of DNA tests were not yet officially reported, Nifong probably knew the results. So the pressure is on in this ID. Thus they push her to ID someones in another photo array with no fillers. She picks 4 sort of. I really don't think the police cared who she IDed, except they did not like her IDing the one guy who was not in Durham at the time. So I think they pushed her to ID any three.

So Mangum is so dense or does not want to follow through that she did not easily follow the cues subtle or not, verbal or non-verbal of the officer conducting the photo array until the third one when the pressure is really on.

[Mike Nifong]

In regard to that rumor - deal. I don't know how they get the AV and Kim Roberts to turn down small fortunes at this point.

Roberts may just be dreaming, but the AV has legitimate opportunities to make significant bucks. Not comparing anything about the 2 women, only dollars, but take Amber Frey. Her book was rated poor by reviews and she got a fat contract. She got a movie deal (CBS). Her career before that was as a massage therapist. Crystal has the whole black segment to exploit and she's sure to be a symbol or a hero to a significant segment of that community.

Do you think Jesse would like to "Campaign" with her? Do you think Al Sharpton would like to have her at his speaking engagements and marches? The NAACP? New Black Panthers?
The Honorable Minister Farakhan?

I don't see the AV, Mark Simeon, or any of her family letting her sign an agreement like that either. This is her big shot.

[Mike Nifong]

I agree wholeheartedly - Eventually.

I think the investigators and Nifong really believed it early on and they thought they had the goods. Nifong's own words support what you are saying. The AV (not too bright) didn't do well on the early lineups and Nifong said more than once that DNA is bulletproof and Eyewitness testimony is not as reliable. If she had picked out 3 unequivocably and emphatically, Nifong wouldn't have made that statement. It's unusual to have 3 lineups or 3 lineup attempts, and it frekin' outrageous to have an ID in a felony case like this 3 weeks after the crime.

I think it's reasonable to believe the 3 lineups and the 3 week delay were manifestations of the trouble she was having with the lineup.

We KNOW the investigators were getting Desperate. We know that they, AFTER the first 2 INDICTMENTS were signed, breached protocol and attempted to question the players without their legal counsel present. The day after the indictments were signed, they're going out and trying to get through, arguably, unethical means basic information they should've had before signing off on the indictments. So they were desperate, that's why I say it's no great leap to envision them showing her pictures of the guys THEY suspected beforehand and planting a seed in her head.

They would've suspected Finnerty right off the bat from his previous arrest that we've heard prosecutors say had similar traits to this alleged crime (Susan Filan for one).

If we go back and listen to Nifong's statements and off-the-record or hypothetical remarks to reporters, and things that he said on the Radio and then were reported on Cable shows by local Radio hosts (Kevin Miller, etc.), if you listen to that with a timeline next to it, it becomes very apparent what is happening. You see him very confident in the DNA for days and then he suddenly reverses himself. He talks about Condoms for the first time. He mentions the false stats that don't apply to GANG-rapes.

I think Nifong thought these guys were going to fold and come asking him for a plea deal somewhere down the line. I even think that Nifong interpreted the Defense's statements as Bravado and ego.

I saw where you - JLS - had mentioned Nifong's famous comment that they (the defense) doesn't want to go up against him or face him in court. The other thing that he said to Defense attorney's when he refused to look at the alibi, photos and other exculpatory evidence was: I know more about this case, than you'll EVER know.

Nifong underestimated the continuing National attention to this case, because I think Nifong thought that he would give them a dose of the DURHAM JUSTICE that he regularly hands out and they'd have to live with it. The Light from the National coverage of this case (remember the defense attorneys opting to make EVERYTHING on the record?) may prevent Nifong and the Judges from using the standard DURHAM JUSTICE to bash the defendant's heads in. I think that is what Nifong was counting on all along. The uneven playing field, the relationship of the DA and Judges, the financial burden on the defendant, the costly delay in the case being heard, etc. Nifong's Pompous and overconfident attitude can be attributed to his underestimation of the media coverage and the financial ability of the defendants, in my opinion.

[Ken H]

Photo array number 3, 4 April 2006:

Nifong says at the 11 April 2006 Forum at NCCU that he will take the case to the grand jury as soon as she IDs someone.

So Nifong had known for a week who she picked when he said this. Did the same investigators conduct all 3 ID lineups?

[Your scenario sounds right on the money]

[pepperhead]

If I keep asking you questions about one guy and keep showing you his picture. It doesn't take long to pick up on the fact that you have suspicions about that guy.

Exactly

[pepperhead]

You think her "boyfriend" is around much now that she is not bringing in any cash?

Maybe he is, in hope that her "lacrosse lotto ticket" to hits.

[pepperhead]

Photo array number 1, 16 March 2006: I suspect there are fillers in this one as this is three days after the party and Nifong is yet to be directly involved. Mangum fails to ID any lacross players. The investigators are not too worried afterall they have DNA evidence.

You know I wonder what photos where used in the first lineup of the players. Even if there was fillers it seems unfair to use photos of players that are all wearing the same shirt-jersey. It seems to me like they would stick out like a sore thumb.

[TommyDale]

When I Googled "Crimestoppers Durham NC" it came up with the Durham Police Department website. Interesting...

[VaFarmer]

I agree. Duke will never push Durham over this.

Maybe New Jersey could recruit Duke. Princeton is good but there is room for another PC institution in that state. Duke would kick butt in the Ivy League. New Jersey folks probably know how to make Nifong an offer he can't refuse, too.

Brodhead should consider this. One of you Freepers with inside channels to the Duke administration please draw this thread to his immediate attention.

[JLS]

I think the investigators and Nifong really believed it early on and they thought they had the goods. ...

Yep not unlike the Bryant case. They have a woman who says they/he did it. They have DNA. Well in this case it turns out they had no DNA for the players and in the Bryant case it turned out they had way more DNA than made a good case. I think it is natural when an investigator has a complaining witness and DNA to think early on this is a simple case.

I think it's reasonable to believe the 3 lineups and the 3 week delay were manifestations of the trouble she was having with the lineup.

There can be no other explannation for more than one lineup. Had she made a good ID on the 16 of March if she was presented a photo array or the 21st of March when she clearly was presented a photo array, then the photo array in April never would have taken place.

There are rumors on the internet that she ID one player early on. We shall see, but I doubt it. Had she, the police would have put the squeeze on that player to name the others. I also think he would have been indicted earlier.

We KNOW the investigators were getting Desperate.

Clearly in addition to the points you made, I learned this weekend that they sent a "sting" e-mail from one players account to other players pretending that a particular player was turning on the others. [I missed this part when it happened.] It did not work.

They would've suspected Finnerty right off the bat from his previous arrest that we've heard prosecutors say had similar traits to this alleged crime (Susan Filan for one).

Yeah, maybe we will eventually find out that they cued her in on Finnerty early on. I sort of doubt it because they would not want IDs that did not match the DNA and for the first two arrays they did not know what the DNA would say.

The other thing that he said to Defense attorney's when he refused to look at the alibi, photos and other exculpatory evidence was: I know more about this case, than you'll EVER know.

Yes and as I said on other threads, this statement is an admission of planning a crime in NC. This statement alone is a reason the judge should have ordered discovery rather than claim to believe that Nifong would voluntarily turn over what was required by law which is everything.

Nifong underestimated the continuing National attention to this case, because I think Nifong thought that he would give them a dose of the DURHAM JUSTICE that he regularly hands out and they'd have to live with it.

This is the one part I disagree with. I think:

1. Originally they thought they had a solid case.

2. The case drew feminazi, then race baiter attention just as it was falling apart and as the primary election approached.

3. Nifong was desperate to gain recognition over his more famous opponent who he had fired in spite. So he over promised before the election to win the black vote and had to indict. In fact he committed fraud by ordering the police to run photo arrays against the rules to be able to indict.

4. So now Nifong is stuck. He is trying, as Thomas Sowell said, "to cool the mark." But these players are being very very aggressive. His plan to let things cool for a year does not seem to be working well for him either. He keeps yelling at defense attorneys for having press conferences.

5. He knows he can not win his case. He can not win it in Durham. It will not be held in Durham. If he really wants the defense to stop having press conferences he has to signal he will drop the case if they are quiet for a month or two. A sudden lack of developments on this case might well be a signal that the charges will be dropped when things quiet down.

[Mike Nifong]

Maybe the reason it took longer to identify David Evans is because her helpers had to research him to make sure they didn't strike out with another player who wasn't even there during the supposed main event.
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Funny you say that. When the Investigators were dispatched to question the players without their Legal Counsel (highly unusual), mind you the day AFTER the first 2 indictments were signed, the investigators wanted them to answer questions about WHICH players were at the party.

This falls perfectly in line with your statement.

What are the odds the fourth guy she IDs in the 3rd (final) lineup was not at the party.

[JLS]

Did the same investigators conduct all 3 ID lineups?

Little is known publicly about the 16 March photo array. The other too seem to have violated good procedure and maybe DPD policy by having investigators associated with the case conduct the photo arrays.

The reason to have different DPD personnel than those investigating the case conduct the photo arrays is to have it conducted by someone who knows little about the case so they can not intentionally or unintentionally cue the witness who to chose. This is the issue our "Mike Nifong" raised above.

[JLS]

You know I wonder what photos where used in the first lineup of the players. Even if there was fillers it seems unfair to use photos of players that are all wearing the same shirt-jersey. It seems to me like they would stick out like a sore thumb.

I tend to think the 16 March 2006 photo array was the most legit as it was before Nifong got involved. They could have cropped off all Duke identifiers and given her a bunch of head shots of Duke lacrosse players and fillers. I can certainly imagine her saying she could not ID anyone from merely a head shot and they got more complete photos for the second and third photo arrays.

I have seen conjecture that the photo array used pictures taken when the players gave their DNA with their shirts off so she could see who was most scratched up. A timeline I saw on the CourtTV board suggest that they gave their DNA after the date of the 21 March photo array so if true that would have been for the April photo array.