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Duke Case: Failure of Procedure
newsmax ^ | Wednesday, Aug. 9, 2006 | Susan Estrich

Posted on 08/09/2006 9:18:34 AM PDT by flixxx

There is a scandal now brewing in the Duke lacrosse case. I'm not even sure whether to call it a rape case anymore. You're about to see why.

Consistent with the procedure in North Carolina and elsewhere, the prosecution has to turn over its evidence to the defense to prepare for trial. There's still more to come, but the bulk of what has been turned over is troubling enough. It suggests a failure to follow standard procedure that is rather mind-boggling.

Consider: The District Attorney went to the grand jury for an indictment before he even performed DNA tests (it turns out there was no match). One of the investigators was still collecting prices for DNA tests while the DA was giving interviews. He announced to the press that he was certain that a rape had taken place before excluding the possibility that the woman's physical symptoms were the result of sex with another man (turns out she'd had sex with her boyfriend within the preceding 24 hours). They were still investigating the woman's whereabouts during the 24 hours leading up to the party, and they had already been to the grand jury. The prosecutor relied on a photographic identification procedure that reportedly violated the standards of his own department. If the discovery is any indication, his case is sitting on quicksand.

None of this means the woman is lying. But at the very least, standard procedure should have been to await the results of tests, and then, given the results, the inconsistencies in the woman's statements, the fact that at least one of the boys seems to have an airtight alibi, investigate further before indicting anyone.

Instead, the train had already left the station.

It doesn't matter anymore why the DA was so determined to indict. His critics will say it was just because he was thinking about his political career. His supporters will say he really believed her, and that a District Attorney has every right to be responsive to the community that elects him. My guess is he really did believe her, but it certainly didn't hurt that he needed to. And one thing is clear: He's not going to change his mind now.

That means this case is going to trial, unless a judge steps in to stop it, which is something that rarely happens.

And of this you can be sure: No good will come of it. Trials do not tend to be healing experiences. Sides dig in. Things get more contentious, not less. Tempers are bound to flare. Reliving the evening in living color is not likely to be pretty. Hearing the racial epithets again, rereading the e-mails, all of that will not improve race relations, even if it has nothing to do with whether a rape happened or not.

Even before that, there will be the questions of who serves on the jury and what counts as a jury of their peers. Shall we start counting how many minorities there are, how many "Duke" people, how many of "us" and how many of "them"?

If she takes the stand, she'll be slaughtered on cross.

If she doesn't, the prosecution doesn't have a chance.

No one will be convinced that the case was handled fairly.

If even one of the boys is convicted, there will be outrage in the Duke community.

If they're all acquitted, there will be outrage in the black community that three white boys got away with rape.

Conservatives will be outraged that three boys' lives were ruined because an ambitious prosecutor believed a lying "slut" (as in the nuts and sluts defense), which will be played to a fare-thee-well.

Victims rights advocates like me will be depressed because we will worry, rightly, about all the messages being sent to legitimate victims.

And what would have happened if the District Attorney had waited to go to the grand jury, followed the identification procedure, let the test results come in, found out about the boyfriend and investigated enough to learn that one of the suspects had an airtight alibi? He might have decided not to file charges at all, or not to file them against these three young men.

There are reasons you follow procedures. In general, they are there to spare outrage.


TOPICS: Local News
KEYWORDS: duke; dukelax; durhamdirtbag; lacrosse; lax
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To: Hogeye13

I'm sure that Himan either embellished what little Levicy told him and his notes are basically accurate, or Levicy told him everything and Himan's notes are inaccurate to cover for Levicy.

Either way, after the 16th, Nifong would have thought he had a report coming that confirmed a sexual assault had taken place.


261 posted on 08/10/2006 1:32:14 PM PDT by ltc8k6
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To: Hogeye13

Isn't it a felony to do that? Even I wouldn't believe it was a coincidence that he just happened to empty his room out just in time.

He would be obstructing justice.


262 posted on 08/10/2006 1:34:03 PM PDT by ltc8k6
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To: Dukie07

Also, I don't know of any law that says that what the police are looking for in a search warrant has to be there when they do the search. If it ain't there, it ain't there, and they can't make you produce it from another location without a separate search warrant specific to that location.


263 posted on 08/10/2006 1:35:55 PM PDT by Hogeye13
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To: ltc8k6
Isn't it a felony to do that?

Keeping in mind I am not an attorney, I do not think a warrant requires that you have all your wordly pocessions in the particular place the warrant is issued for. Now if you hear a warrant is issued for you and you move things, then maybe it is a crime. If you move your electronics because you think the police might come on a fishing trip to your room, it is different than if you move specific things named in a warrant. And it certainly can not be obstruction of justice, if there was no crime committed.
264 posted on 08/10/2006 1:38:12 PM PDT by JLS
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To: ltc8k6

The only way it could be considered that would be if they advised the attorney and/or the client that they were coming with a search warrant and were watching the dorm room to make sure nothing is removed. Prior warning might establish a charge for removing things. The day before the arrest he might have been under the impression that after arrest he would not be allowed back in the dorm room. Therefore get your belongings out before you are locked out. I doubt that there was any forewarning of the impending search by the police.


265 posted on 08/10/2006 1:41:04 PM PDT by Hogeye13
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To: ltc8k6

I still don't believe Levicy told Himan anything. If she did and it can be documented she is in deep dodo.


266 posted on 08/10/2006 1:42:36 PM PDT by Hogeye13
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To: Hogeye13

I seem to recall that the lax players had moved from Edens prior to that anyway (which was, of course, why Collin's stuff wasn't there); but I could be wrong. I can check with my student later. Certainly the dorm was locked to outsiders (meaning, only Edens residents could gain access - ususally your Duke Card will gain you access to most any building). Ugh. This just brings back how awful that time was for the students.....


267 posted on 08/10/2006 2:17:13 PM PDT by Dukie07
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To: Hogeye13
It doesn't matter if Levicy told Himan or not, if Himan told Nifong Precious had injuries consistent with rape. Nifong obviously didn't wait to see what is actually in a report before he started running his big mouth.
268 posted on 08/10/2006 2:26:47 PM PDT by jennyd
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To: Nonstatist
"I doubt there are a dozen people in the world who really believe that anymore. What tripe."

There are people that still say OJ is innocent.

269 posted on 08/10/2006 2:27:24 PM PDT by VRWCtaz (A challenge to Liberals: I will read any book you name - if you will do the same. (very few takers))
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To: All

Ted Vaden speaks

http://blogs.newsobserver.com/readers/index.php?title=the_lacrosse_story_error&more=1&c=1&tb=1&pb=1#comments
Comment from: Ted Vaden [Member] · www.newsobserver.com

08/10/06 at 17:14
Thanks for your responses, everyone. I'll try to address some of the questions and points:

1.Re the WTVD broadcast, it was their reporter, not Ted Vaden, who said The N&O got the date and "other key information" wrong. The broadcast got four other facts wrong, including my name and that of Melanie Sill. I called WTVD on that, and they made a correction last night.

2. Some questioned this phrase, from my blog: "But it could affect readers' perceptions of the accuracy of the rest of the article and, potentially, of the newspaper's future reporting on this emotionally charged story." I don't think there is anything startling here -- I'm simply saying that starting a story with erroneous information could affect perceptions of the rest of the story and of our future reporting on the lacrosse issue. I think that's reflected in the comment of "Jayson Blair" above (I wish people would use their real names.).

3. I have read Robert K.C. Johnson's blogs and John in Carolina. Thanks for bringing those to my attention.

4. Several commentators suggest that I'm an "apologist" for Nifong and a "rubber stamp" for The N&O's reporting. I've written two previous columns on the lacrosse issue, shortly after it broke (April 2, April 16). The firstSearching for fairness in the Duke story was critical of The N&O's interview with the accuser. The secondMore questions about the lacrosse story took issue with the paper's coverage of the lacrosse players, including a story and headline describing the team as "swaggering" and publication of the so-called "vigilante poster," which I called "inappropriate."

Thank you for taking the time to make comments.

Ted Vaden


270 posted on 08/10/2006 2:32:30 PM PDT by abb (The Dinosaur Media: A One-Way Medium in a Two-Way World)
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To: Hogeye13; ltc8k6

Plus that information was inaccurate - someone is liable.

There was NO trauma. Someone has to be held accountable.

The way young Himan (Gottlieb's understudy) left so much out of the affidavits and probable cause justifications, I think it'll turn out that the nurse said diffuse edema of the vaginal walls - nothing else noted.

Just a hunch, but consider all the other data in this case.



271 posted on 08/10/2006 2:42:07 PM PDT by Mike Nifong (Somebody Stop Me !)
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To: Jezebelle

Woody Vann said on Greta's show that the cases are separate and Nifong would have to make a motion to join them.

At the hearing where Reade was present there was a discussion about moving his case to second setting. Nifong said it didn't really matter since he intended to make a motion to join the cases and by moving to second setting Reade would not get a quicker trial date.


272 posted on 08/10/2006 2:59:12 PM PDT by SarahUSC
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To: Jezebelle

I think he's going to have witnesses for the entire night. His father told Sean Hannity that multiple people can testify to where he was every minute from the time he left his dorm to the time he got back.


273 posted on 08/10/2006 3:01:21 PM PDT by SarahUSC
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To: Hogeye13

I don't think Collin removed evidence, which is what #5 of those 10 questions implies.

I am saying that if Collin knew he was being investigated and moved his computers to remove evidence, then he'd be guilty of a crime.

A crime for which Nifong is strangely silent about, because it doesn't exist.


274 posted on 08/10/2006 3:05:20 PM PDT by ltc8k6
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To: paddles

I didn't. I'm the type of person who actually would go to the door and ask to use that bathroom.

Problem was the vacant house.

:)


275 posted on 08/10/2006 3:14:54 PM PDT by Carling (It's Danny, Sir)
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To: All

Handy links to bookmark.

http://www.newsobserver.com/news/crime_safety/duke_lacrosse
http://www.wral.com/dukelacrosseheadlines/index.html


276 posted on 08/10/2006 3:41:24 PM PDT by abb (The Dinosaur Media: A One-Way Medium in a Two-Way World)
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To: ltc8k6

I don't think Collin removed evidence either. "Removing evidence" implies that there was something incriminating on his computer and I don't believe that.

I think he left the dorm and took his computer with him which is what anyone would do if they were re-locating.

The question is, why did Nifong wait until after the indictments came down to search Collin's room? Once the accuser ID'd him he would have had probable cause to search his room. I think the answer is he knew he wouldn't find anything in there anyway.


277 posted on 08/10/2006 4:25:25 PM PDT by SarahUSC
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To: SarahUSC

Sarah, I agree completely and never meant to say that he did remove evidence. He took his personal belongings prior to the warrant being served. No crime there at all.

Regarding Nifongs motives, I believe it could be considered harassment such as arresting the cabbie, sending detectives to the dorm trying to talk to players that he new were represented by attorneys and other things that have been done. I think he a vindictive little man and I use the term man loosely. I don't think he could possibly expect that anything would be found at that time since the players would automatically be suspended and have to leave the campus unless he is just stupid. Now that I think about it.....


278 posted on 08/10/2006 4:43:37 PM PDT by Hogeye13
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To: Hogeye13

He's certainly shown what seems to be an open willingness to abuse his position. The cabbie thing really irked me. The woman involved had told them he had nothing to do with it. It looked like intimidation to me. At least the attempt. Sending the detectives, the poster, the press conferences. It's a long list. And I hope it ALL comes back to bite him on his backside.


279 posted on 08/10/2006 4:52:57 PM PDT by Sue Perkick (...heavy strings, tune low, play hard and floor it. Floor it. That's technical talk....)
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To: Hogeye13

Oh, I know you weren't saying anything like he removed evidence. He just moved out.

I wonder why Nifong bothered at all. If he had really been looking for something he would have looked alot sooner. I think he knew there was nothing to find. What did they take out of there? A newspaper article and a letter? What a score.


280 posted on 08/10/2006 4:56:26 PM PDT by SarahUSC
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