Posted on 08/15/2006 2:41:50 PM PDT by abb
DURHAM, N.C. -- A cab driver who has supported an alibi offered by one of the three Duke lacrosse players charged with rape had his own court appearance Tuesday for a larceny charge.
Moezeldin Elmostafa, 37, appeared briefly before a Durham County District Court judge who set a trial date of Aug. 29. Prosecutors also changed the charge against Elmostafa to aiding and abetting misdemeanor larcency.
Elmostafa was arrested in May after he surfaced as a potential alibi witness for Reade Seligmann, one of three players charged with raping a woman at an off-campus party the night of March 13.
The 2003 warrant accused Elmostafa of stealing five purses worth about $250 from a Durham department store. Elmostafa denies the charge, and has said he helped store security locate a woman after he picked her up from the store and drove her home. The woman later pleaded guilty to larceny.
Durham prosecutors said in May the warrant for Elmostafa's arrest was discovered in a routine background check of witnesses in the Duke lacrosse case.
Mostafa has said Seligmann, of Essex Fells, N.J., called for a ride at 12:14 a.m. on March 14, and was picked up five minutes later. The defense has argued those times help establish that Seligmann left the party without having enough time to participate in the 30-minute assault described by the accuser. Seligmann's attorney has also presented cell phone, ATM and dorm keycard records to help establish that timeline.
(Excerpt) Read more at dwb.newsobserver.com ...
MM, if it's publicized that the cops indicated to the Lax players that whatever they said wouldn't be used against them, and it turns out that Nifong DID use it, could that be a PR problem for him? LEGALLY, Miranda may not apply, but ETHICALLY, could it bite Nifong on the ass? What say you?
Ethics? Ha! Police CAN lie when they are interrogating a witness. Anything a person says CAN be used against him even if the police sayd it won't be. It's only when the person is in custody, has been given the Miranda warnings, and requests a lawyer that all questioning must stop. That's the theory anyway.
Come on, folks. We like this. If a real criminal starts to talk when he is not in custody and the police promise that his words will not be used against him, wouldn't we want anything incriminating to be used against him? Heck! We'd all be screaming that the slimey criminal got off on a technicality! You know we would.
The cops had no obligation to admonish the boys during that interview.
A sound argument.
But allow me to postulate that police deceit and Nifongery would - perhaps ever so slightly - poison the DriveBy Media's adoration of the prosecution side.
This is based on my theory that this is a "trial by media" rather than a legal proceeding.
May 19, 1999
Durham DA gets 'judge-shopping' reputation
Author: JOHN SULLIVAN; STAFF WRITER
Edition: Final
Section: News
Page: A1
Index Terms:
Jim Hardin
Orlando Hudson
Durham
judicial
Estimated printed pages: 5
Article Text:
DURHAM -- Five years after Durham District Attorney Jim Hardin and Chief Superior Court Judge Orlando Hudson teamed up to reduce a huge backlog of cases, the district's other three Superior Court judges say the two are bypassing them and funneling the county's major criminal cases to Hudson.
Defense lawyers call it judge-shopping, and they say Hardin is doing it to punish judges who have ruled against the prosecution.
"I think there is forum-shopping being abused by the district attorney, and many experienced judges have heard few felony cases while many are placed on one judge's platter," said Durham Superior Court Judge David Q. LaBarre, a 20-year veteran of the bench.
Superior Court Judge Ronald Stephens says the one major case he has heard in the past several years came only after he complained to Hudson and the state Administrative Office of the Courts.
"It's like running a basketball team with a player-coach that brings the ball down the court and shoots every time," Stephens said. "There is some frustration in that."
Superior Court Judge Leon Stanback, who was named "Outstanding Trial Judge of the Year" for 1998 by the North Carolina Academy of Trial Lawyers, says he can't recall hearing a first-degree murder trial since Hardin became district attorney in 1994.
"I think they select certain judges, and DAs are in good position to do that," he said. "If they don't like the way they rule, I imagine they have the prerogative of what judges get certain cases."
Hudson and Hardin say the perception is the result of a necessary relationship that saved Durham's court system from collapsing under the weight of a huge case backlog.
They began discussing the problem in 1993, Hardin said, before he became district attorney and just after a lawsuit was filed against then-District Attorney Ronald Stephens, who held the job for 11 years and is now a Superior Court judge. Hudson and Hardin devised a case management system that went into effect in 1995, and Hudson says he took many cases just to get the system working.
"As a result, over the past four years I have handled just about every criminal case in Durham County," Hudson said. "I think that is the way it just worked out - that I got 11 of 12 important cases. From that standpoint, of taking on cases to get it done, it's probably a legitimate complaint."
He says Hardin is just using the scheduling power given him by the legislature.
"Jim Hardin doesn't put himself at a disadvantage," Hudson said. "I don't know of any official that puts his office at a disadvantage. I think the DA has a lot of power, and when the legislature leaves scheduling in the hands of the DAs, you have sanctioned judge-shopping."
Hardin said he doesn't consider it judge-shopping.
"I have the statutory right to get cases before any judge who sits in this district, and until that changes I would consider it an abrogation under the statute to do it any differently."
By working closely with Hudson, Hardin said, he has solved many of the problems in the Durham courts, an assertion that many judges and lawyers confirm. Hardin said he has not avoided judges when scheduling cases, but he said many important cases have gone to Hudson because he has been in the district longer than other judges.
Hardin said he doesn't understand why judges or attorneys would complain.
"I think it's unfortunate that those judges feel that way," he said. "I don't think any judge has demonstrated any covert bias for or against the state."
Judge-shopping is legal in North Carolina, the only state in the country where district attorneys decide when and where a case goes to trial.
The American Bar Association and the National Center for State Courts say the practice isn't fair. Defense lawyers and judges say it allows district attorneys to punish judges who rule against them by giving them minor cases while important cases wait to be heard by judges who are thought to be sympathetic to a prosecutor's case.
"I believe Jim Hardin is punishing judges who rule against him," Durham Public Defender Bob Brown said. "The obvious consequence will be the judge who will want to rule fairly and in accordance with the law will not be given a chance to do so but will simply not be assigned any more cases."
State Supreme Court Chief Justice Burley Mitchell says district attorneys are accountable for keeping cases moving, and the power to calendar is an important tool in reaching their goals. There are times, he says, when district attorneys need to take cases before judges who know technical areas of law well.
But Durham's bench is experienced, he said, and he sees no reason why the caseload isn't being distributed.
"That's what the people elect the DA to do - set the trial calendar," Mitchell said. "Obviously the work should be spread around."
Mitchell said the state's unique system of rotating judges throughout the state's 30 judicial districts is supposed to balance out a district attorney's scheduling power. Superior Court judges are assigned by the Administrative Office of the Courts to spend six months in other districts every few years.
"By keeping judges rotating, local cliques and favoritism don't build up, and it keeps judges from just holding court out of their own district, where they are beholden to no one," Mitchell said. "It has had good effect."
Hudson, with Mitchell's permission, has spent more time in the district than any other resident judge. He also has been allowed to come back to the district to hear major cases, including the controversial case of Timothy Blackwell, the second person in the United States to be tried on first-degree murder charges for killing someone in a drunken driven case.
The other cases Hudson has handled are a who's who of Durham's most notorious crimes. He heard the murder trials of Todd Boggess, Shamar Rasheed Hines and Rodney Eugene Leak. He negotiated pleas in the first-degree murder cases of Broadus Crabtree and Charles Castleberry and is handling the murder case of Eric Crutchfield, accused of fatally shooting his daughter in the back and wounding his son. And he was handling the capital murder case of Gregory Gibson until Gibson hanged himself in
Hardin says at least one of his prosecutors, Mike Nifong, has tried murder cases before other judges, including a trial this year before visiting Judge Robert Hobgood. Defense attorneys say Nifong is the only assistant district attorney who will try a case in front of another judge, and he usually doesn't try high-profile cases.
While some visiting Superior Court judges - including Hobgood and Judge Henry Hight - say they haven't seen any favoritism, Brown points to the time visiting Superior Court Judge Abe Jones rotated through Durham.
Jones ruled against the state in several cases, allowing evidence to be suppressed. After the ruling, Brown and Jones went to lunch.
"I told him he wouldn't hear another criminal case," Brown said.
"I ruled in the defense's favor, but I never got back to criminal," Jones said. "I can't say the two were tied; all I can say is it happened."
Durham Civil Trial Court Administrator Kathy Shuart said Jones was scheduled to return to criminal court, but many of the lengthy civil cases he heard kept him in civil court.
Hudson and Hardin's close working relationship began after a lawsuit alleged widespread abuses by district attorneys in how they scheduled cases, including sweating plea agreements from defendants by leaving them languishing in jail.
The case went to the state's highest court, and although the court ruled the power to control scheduling was constitutional, it noted that the power could be abused.
Hudson encouraged Hardin to settle the suit, Hardin said, and they instituted a case management system in 1995 that was one of only two in the state. Under the system, every case has three separate settings to make sure a defendant has an attorney, motions are heard and evidence is exchanged before the case is finally set for trial.
Justice Mitchell says he told Hudson and Hardin that the transition would work only if they worked together. In 1995, Hardin's office disposed of 4,400 felonies, including 66 murders - 1,600 more cases than his office handled in 1998.
Hudson says his relationship with Hardin should be judged based on the progress the system has made in the past four years. With case management in place, he says, he will be spending more time outside the district.
"We couldn't do case management without that relationship," Hudson said. "And whether it's necessary to continue? Probably not."
Excellent get, PBR. This is the Modus Operandi of the CourtHouse Crowd enshrined in law...
Dirty pool played by one licensed thug will not dissuade the drive-by media of their hatred of white middle-class successful people. Such treacheries by the DPD and Nifong are worth perhaps a raised eyebrow only - not even lip-service - by the DBM.
Accountable to whom, no one in Durham seems to give a flyin ____
and the power to calendar is an important tool in reaching their goals....
Now there is news..not Considering the cases which have been postponed lately how can anyone believe the DA is not using the pressure tactics?
And now with the designation of "exceptional," Nifong is defanged of that power. Any idea on when the next hearing is scheduled?
MM, I think you are right. I read yesterday that the reason that the suspect in the JonBenet case was not handcuffed in the Thailand airport or on the plane was so the investigator that was escorting him could say that he was not in his custody. Therefore anything he said could be used. They were allowing him to drink several alcoholic drinks during the flight. I guess they were hoping his tongue would get real loose.
The Trial
Ten to Watch
Sarah Kwak, The Chronicle, 7/19/06
This is just the beginning. Four months after allegations that lacrosse players raped a exotic dancer at an off-campus party surfaced, after three students were indicted by a grand jury, after Duke cancelled the team's season and its coach resigned, this is still just the beginning.......
http://www.dukechronicle.com/media/storage/paper884/news/2006/07/19/Features/
The-Trial-2131798.shtml?norewrite200608221752&sourcedomain=www.dukechronicle.com
* Don't forget to check-in with The Chronicle.
Lacrosse 'fashion' seems all the rage on campus.
I'm trying to think of any other case where someone has had as good an alibi and the DA just dismisses it. The only thing that comes to mind is Timothy McVeigh filmed entering a McDonald's yet it was also dismissed. So I guess a DA can do it.
This is what gives me the screaming red ass. Duke Law has a lynching going on right under their nose, but their too damn busy lawyering for terrorists...
Guantanamo Defense Clinic
http://www.law.duke.edu/magazine/2006spring/features/guantanamoclinic.html
No, Miranda kicks in when you are in a "custodial" situation. You don't have to be officially under arrest.
Yes, it can be used against them.
Ethics? Ha! Police CAN lie when they are interrogating a witness.
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I think this is what happened. We have the investigators/DPD/DA telling leading media types to believe someone was cooperating - someone from the team. We have Nifong making public statement that after indictments are handed down, he believes the players will be MUCH more willing to talk. Coincidentially, Geraldo, goes on O'Reilly and says that as soon as a player is indicted these pampered, privileged, soft white kids will race into the DA's office to cut deals. Then there's the e-mail (McFayden).
Many former Police such as Ted Williams and Rod Wheeler went on shows and said that sources INSIDE the DPD are telling them that someone is cooperating.
This was all a Pressure campaign to force a weak person to come and effectively, in this case - falsely implicate someone in order to end the pressure and anxiety of that individual.
I think the Midnight protests and all the outrageous Public statements by Nifong were designed to apply pressure and get someone to come into Nifong's realm - the Plea Deal. That's his specialty and the state holds all the cards.
Nifong/Gottlieb could also have been thinking - 3 IDS - regardless of whom - would serve him in his election AND may make those indicted willing to finger someone else in order to save themselves. In other words, the indictsments could have been used as a TOOL to compel some to implicate others on the team. To do what Nifong & company had be unable to do via rumor and public statements.
_
It's NOT against the law. Courts have allowed Police to lie to people. Sometimes guilty people confess when they feel trapped by lies, witnesses, and/or evidence that doesn't exist.
The problem is that many people are weak and they've never experienced anything like a police interrogation - and sometimes these tactics result in FALSE confessions.
They had a case where they told a man that his Mother had implicated him - there was no other evidence in the case, in fact, it looked like someone else did it. The man in despair that his Mother believed that - gave up - signed a confession. I believe he was freed years later when other evidence came to light. But many in the public were shocked to find out Police and DA's can legally lie to suspects.
It's legal - and the oldest trick in the book.
NC has some very unusual laws that set the stage for the abuse of power we are seeing in this case. What's happening in this case would be much more difficult to pull off in any other state.
Beckwith v. U.S.
There's nothing shocking about it. Our constitution and our system affords suspects and defendants many rights that most legal systems around the world do not. I have no problem with interrogators lying to suspects.
I don't think we should use this case as an indictment of the entire judicial system or the investigative process because this case is an anomaly to be sure.
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