Will lacrosse case claims hurt prosecution?

The Herald-Sun ^ | Jun 15, 2006 | John Stevenson

[Senator Pardek]

By John Stevenson : The Herald-Sun
jstevenson@heraldsun.com
Jun 15, 2006 : 12:23 am ET

DURHAM -- Although a few observers are willing to give District Attorney Mike Nifong the benefit of the doubt, recent defense claims in the Duke University lacrosse rape case have many lawyers and professors once again predicting doom for the prosecution.

Mark Godsey, a former New York City prosecutor who now teaches law at the University of Cincinnati, put it this way on Wednesday:

"These events are more bad news for the prosecution, but we still don't know what evidence they have. Nevertheless, as we learn more, the universe of the prosecution's possible evidence seems to shrink."

But Irving Joyner, a law professor at N.C. Central University, did not agree that the defense claims are automatically and necessarily damaging to Nifong.

"In the public view, it probably seems like this is a big deal and that the police were caught doing something wrong," Joyner said Wednesday. "It plays well in the theater, so to speak. But at this point, I don't think it's all that strong. A lot will depend on the fortitude of Mike Nifong and his faith in his case. If he believes in what he is doing, it could go all the way."

The defense claims, included in court paperwork filed last week, indicated that police withheld many details from a judge as they began to investigate the case. The omitted details were seemingly inconsistent with an exotic dancer's allegation that she was raped, beaten, choked and sodomized during an off-campus lacrosse party at 610 N. Buchanan Blvd. in mid-March.

For example, an investigator failed to note a co-dancer's claim that the rape allegation was "a crock," even though the second dancer was with the accuser for all but about five minutes on the night in question, defense lawyers said.

And while there apparently was no toxicology testing of the woman, last week's defense paperwork indicated she told a nurse she had only one drink on the night of the party, then reported to a physician the next day that she "was drunk and had had a lot of alcohol."

The information in question was gleaned by defense lawyers from nearly 1,300 pages of data they received from Nifong in May.

Unlike Nifong, defense attorneys are not barred from making all 1,300 pages public. So far, however, they have released only a small fraction of the documentation through various court filings.

The released information tends to support the defense position that no rape occurred, and that the dancer's version of events was inconsistent and unbelievable. If defense lawyers received information to the contrary from Nifong, they have kept it to themselves.

The district attorney and Police Department have declined comment.

Three people have been indicted on rape, kidnapping and sex-offense charges in the case: Collin Finnerty and Reade Seligmann, Duke sophomores at the time of the lacrosse party, and David Evans, who graduated from the university in May.

All are free under $400,000 bonds as they await a trial that may begin next spring.

It was police investigator Benjamin Himan, according to defense paperwork, who allegedly withheld information in a sworn affidavit at the outset of the case.

"If false statements were made in court documents, that is actionable," attorney Alex Charns said Wednesday, referring to a possible lawsuit.

"It's premature to talk about civil liability, but officers are not immune for any knowingly false statements that may have been made," Charns added. "All of that is extremely significant and will be reviewed in the future."

Charns represents an unindicted Duke lacrosse player and has handled numerous cases of alleged police misconduct.

"Was he trying to hide information or did he merely omit it because he thought it was cumulative?" lawyer James D. "Butch" Williams asked of Himan.

"If it was the latter, he might need more training," said Williams. "But if he did it intentionally, disciplinary action certainly would be appropriate."

Like Charns, Williams represents an unindicted lacrosse player. He said that because of the new information, "dropping the case should be one avenue that is seriously considered."

In addition, it was "not far-fetched" to suggest that Nifong should back out of the case and call in the state Attorney General's Office, according to Williams.

"Mr. Nifong has to search his heart to see if he has too much invested in this case," Williams said. "Too much personal investment can cloud your judgment. If that's what happened, duty requires that he step aside and bring in someone who is objective."

Durham lawyer John Fitzpatrick, who is unconnected to the lacrosse case, noted Wednesday that Himan was not legally required to include every possible detail in his sworn affidavit.

"Police don't have to try their cases in an affidavit," said Fitzpatrick. "They don't have to put down every fact. Even if the officer doesn't believe what he puts down, he just has to say that someone told it to him. But if the officer told a deliberate lie, that's a whole different matter."

Fitzpatrick described the information in latest defense motions as potentially "crushing" to the exotic dancer's credibility.

"So far, we haven't heard from her to explain these inconsistencies," he added. "There are a lot of questions only she can answer. She probably won't answer them until trial. I'm not saying her story is frivolous. I'm just saying any defense lawyer will be able to expose any weaknesses in her story and her credibility. It will all come out in cross-examination. Jurors will not only listen to what she says. They'll also be watching her body language and other signals to see if they think she is telling the truth."

[ansel12]

Cut'em down! Those boys are innocent!

[paudio]

For some people, the boys represent the elite, privilege class: rich, white males. Whether they are innocent or not, for these people, does not matter. The boys need to experience what minorities do: being accused of crimes.