DA plans to turn over more papers in lacrosse case (DukeLax)

DURHAM -- District Attorney Mike Nifong plans to give defense lawyers at least 300 additional pages of information about the Duke University lacrosse rape case, adding to 1,298 pages of documentation surrendered previously.

Without describing their contents, Nifong said the new documents would be handed over during a preliminary hearing today for three recently indicted lacrosse players: Collin Finnerty, Reade Seligmann and David Evans.

The three are accused of raping, sodomizing and restraining an exotic dancer in a bathroom during an off-campus party at 610 N. Buchanan Blvd. in mid-March.

All are free under $400,000 bonds as they await a trial that, according to Nifong, might begin next spring.

In addition to a transfer of documents, the hearing will include a request from Seligmann's lawyers that his bond be lowered to roughly one-tenth its current level. The lawyers filed an affidavit in support of that request Wednesday.

Signed by Philip Seligmann, the defendant's father, the affidavit said that Seligmann had been recruited by every Ivy League university to play football or lacrosse, and that he accepted a 90-percent scholarship to be on the Duke lacrosse team.

"This case has taken an unbelievable and horrendous emotional toll on all my family, especially my wife," the elder Seligmann wrote. "We are committed as a family, along with Reade, to do everything necessary to restore our good name."

According to the affidavit, Seligmann's bail money was provided by a family friend whose "loss of income is substantial" as a result.

In a related matter, the News and Observer Publishing Co. moved Wednesday to make public certain documents -- reportedly pertaining to the alleged rape victim's medical records -- that were filed by defense lawyers under seal.

"In this case, the fact that there are charges of sexual assault is unfortunate and controversial -- either because a woman has been sexually violated or because the defendants have been wrongfully accused -- but neither is a justification for sealing a court proceeding," a lawyer for the newspaper wrote.

The lawyer, Hugh Stevens, also said the sealed documents raised questions about Nifong's handling of the case. He said that when the conduct of public officials is at issue, it is an added reason for making the pertinent files public.

Meanwhile, several defense lawyers predicted Wednesday that Nifong's latest 300-plus pages of documentation would do little to help him, since earlier paperwork -- in their view -- was more beneficial to the defense than the prosecution.

For example, attorneys Joe Cheshire and Brad Bannon have said the earlier documents showed a "very significant and disturbing deficiency" in Nifong's evidence.

Specifically, there were indications that Nifong began making public statements about the accuser's medical records even before they were in his possession, according to the two lawyers, who represent Evans.

Cheshire and Bannon said the District Attorney's Office subpoenaed the accuser's medical files from Duke Hospital on March 20 -- six days after the alleged rape.

However, the files were not printed out in compliance with the subpoena until March 30, and Police Investigator Benjamin Himan didn't pick them up until April 5, Cheshire and Bannon wrote in court paperwork last week.

But the lawyers said Nifong told a local television station on March 27 that he had no doubt the exotic dancer was raped, based on a "personal review" of her medical records. They quoted the district attorney as saying, "My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place."

Citing the 1,298 pages of documentation given them by Nifong earlier, various defense lawyers also have contended there were numerous inconsistencies in the accuser's version of events, along with unacceptable omissions in a sworn affidavit prepared by police. The affidavit was used by Himan to obtain judicial permission for his evidence-gathering efforts.

Among other things, Himan failed to mention that a co-dancer had described the rape allegation as "a crock," even though she was with the accuser for all but about five minutes on the night in question, according to defense lawyers.

Nifong has bristled at that and other defense characterizations of his evidence, while attacking the national press corps for -- in his opinion -- blindly reporting the characterizations without checking their accuracy.

"Is anyone surprised that the defense attorneys are spinning this case in such a way that things do not look good for the prosecution?" Nifong wrote in an e-mail to Newsweek magazine last week.

"Their job, after all, is to create reasonable doubt, a task made all the easier by an uncritical national press corps desperate for any reportable detail, regardless of its veracity," the district attorney said.

the DA controls the whole damn thing in N.C. - and it's the only state that allows the D.A. to via scheduling pick the Judge: Â§ 7A‑49.4. Superior court criminal case docketing. (a) Criminal Docketing. Â– Criminal cases in superior court shall be calendared by the district attorney at administrative settings according to a criminal case docketing plan developed by the district attorney for each superior court district in consultation with the superior court judges residing in that district and after opportunity for comment by members of the local bar. Each criminal case docketing plan shall, at a minimum, comply with the provisions of this section, but may contain additional provisions not inconsistent with this section. (b) Administrative Settings. Â– An administrative setting shall be calendared for each felony within 60 days of indictment or service of notice of indictment if required by law, or at the next regularly scheduled session of superior court if later than 60 days from indictment or service if required. At an administrative setting: (1) The court shall determine the status of the defendant's representation by counsel; (2) After hearing from the parties, the court shall set deadlines for the delivery of discovery, arraignment if necessary, and filing of motions; (3) If the district attorney has made a determination regarding a plea arrangement, the district attorney shall inform the defendant as to whether a plea arrangement will be offered and the terms of any proposed plea arrangement, and the court may conduct a plea conference if supported by the interest of justice; (4) The court may hear pending pretrial motions, set such motions for hearing on a date certain, or defer ruling on motions until the trial of the case; and (5) The court may schedule more than one administrative setting if requested by the parties or if it is found to be necessary to promote the fair administration of justice in a timely manner. Whenever practical, administrative settings shall be held by a superior court judge residing within the district, but may otherwise be held by any superior court judge. If the parties have not otherwise agreed upon a trial date, then upon the conclusion of the final administrative setting, the district attorney shall announce a proposed trial date. The court shall set that date as the tentative trial date unless, after providing the parties an opportunity to be heard, the court determines that the interests of justice require the setting of a different date. In that event, the district attorney shall set another tentative trial date during the final administrative setting. The trial shall occur no sooner than 30 days after the final administrative setting, except by agreement of the State and the defendant. Nothing in this section precludes the disposition of a criminal case by plea, deferred prosecution, or dismissal prior to an administrative setting. (c) Definite Trial Date. Â– When a case has not otherwise been scheduled for trial within 120 days of indictment or of service of notice of indictment if required by law, then upon motion by the defendant at any time thereafter, the senior resident superior court judge, or a superior court judge designated by the senior resident superior court judge, may hold a hearing for the purpose of establishing a trial date for the defendant. (d) Venue for Administrative Settings. Â– Venue for administrative settings may be in any county within the district when necessary to comply with the terms of the criminal case docketing plan. The presence of the defendant is only required for administrative settings held in the county where the case originated. (e) Setting and Publishing of Trial Calendar. Â– No less than 10 working days before cases are calendared for trial, the district attorney shall publish the trial calendar. The trial calendar shall schedule the cases in the order in which the district attorney anticipates they will be called for trial and should not contain cases that the district attorney does not reasonably expect to be called for trial. In counties in which multiple sessions of court are being held, the district attorney may publish a trial calendar for each session of court. (f) Order of Trial. Â– The district attorney, after calling the calendar and determining cases for pleas and other disposition, shall announce to the court the order in which the district attorney intends to call for trial the cases remaining on the calendar. Deviations from the announced order require approval by the presiding judge if the defendant whose case is called for trial objects; but the defendant may not object if all the cases scheduled to be heard before the defendant's case have been disposed of or delayed with the approval of the presiding judge or by consent of the State and the defendant. A case may be continued from the trial calendar only by consent of the State and the defendant or upon order of the presiding judge or resident superior court judge for good cause shown. The district attorney, after consultation with the parties, shall schedule a new trial date for cases not reached during that session of court. (g) Nothing in this section shall be construed to deprive any victim of the rights granted under Article I, Section 37 of the North Carolina Constitution and Article 46 of Chapter 15A of the General Statutes. (h) Nothing in this section shall be construed to affect the authority of the court in the call of cases calendared for trial. (1999‑428, s. 1.)

Thanks! And to think I said such nice things about her to Tucker a few days earlier:

Subject: 06/19 Show

Kudos to you and Susan for tonight's show! Her review of the DA's report was clear, concise, and she hit the key points. One of the best pieces I've seen yet on this story.

I'm also writing with a suggestion. I'd like to see people like Larry Elder, Thomas Sowell, and LaShawn Barber as guests on the cable news shows. They are all articulate black conservative individuals who have seen this case for the travesty it is. They're not afraid to discuss the racial aspects of the case either.

It would be so refreshing to see these people, rather than the same old tired faces like Wendy Murphy, et al. The black Duke law professor (Coleman?) who spoke out against Nifong might be an interesting guest to have on.

I think there is a rich vein of black conservative talent out there just waiting to be tapped.

-- xxxxx

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