DA: Alleged Duke Rape Took 5-10 Minutes

Three Duke lacrosse players took five to 10 minutes to sexually assault a woman hired to perform as a stripper at a team party, and not the 30 minutes she originally described to investigators, a prosecutor said Friday. "When something happens to you that is really awful, it can seem like it takes place longer than it actually takes," District Attorney Mike Nifong said.

Nifong's comments came as Superior Court Judge W. Osmond Smith III denied a defense request that prosecutors provide a detailed accounting of the alleged assault, including the exact time, place and type of sexual act the accuser said each defendant committed.

A grand jury has indicted three lacrosse players _ Reade Seligmann, 20; Collin Finnerty, 19; and David Evans, 23 _ on charges of rape, kidnapping and sexual offense. The accuser, a student at nearby North Carolina Central University, told police she was raped in a bathroom by three men at a March 13 off-campus party. Defense attorneys have strongly proclaimed the players' innocence.

Kirk Osborn, who represents Seligmann, said the defense needed the "bill of particulars" because the accuser has told several different versions of the alleged assault, and his client has a right to know which version prosecutors will present at trial. In search and arrest warrants issued early in the investigation, police stated the accuser told investigators she was assaulted for 30 minutes.

Nifong said he is not required to state the exact time of the alleged attack, but offered that authorities believe it took place between 11:30 p.m. on March 13, when the accuser arrived at the party, and 12:55 a.m. on March 14, when police arrived and found no one at the house.

Friday's hearing was the first since Smith was appointed to take over the case, and it was scheduled to continue Friday afternoon.

Before the hearing began, Nifong gave defense lawyers 615 pages of evidence, a compact disc and a cassette tape. He said it included much of what was requested by defense lawyers, who had asked for handwritten notes from police officers involved with the case, reports outlining procedures used at the labs that tested the DNA of the players and notes from a mental health facility where police took the accuser after the party.

What an absolute joke.

Mike Ding Dong is now manufacturing witness facts and testimony so it can fit the prosecutions house of tissue paper?

Unbelievable.

Howlin - Greta Van Susteren had four lawyers on her show last night. It appeared three were pro-prosecution, and one was pro-defense.

The whole interview came apart at the seams. The African-American lawyer started making up law and legal ethical rules on camera in order to try to smear the Duke player's defense team. He claimed that polling the community was an attempt to "poison the jury pool" and made numerous nefarious charges that had no merit whatsoever.

In what must have been a feat never to be seen again on a Greta Van Susteren show, she and the other three lawyers started coming unglued at the black lawyer, saying he was nuts.

The other lawyers pointed out that polling a community in order to prepare your defense is perfectly legal, acceptable, and is practiced everyday in legal circles. They are used to gage the communities reaction to a case so the defense can build its legal arguments.

It turns out that Mike NiFong's wife, who has a different last name from him (weird?), received one of these polling phone calls and hit the roof! She passed this information on to her husband, Mike Ding Dong, who alerted the MSM and his Democratic allies so they can spin up a phony PR "outraged!" fest.

On Greta's show, even the lawyers could not take this black activist lawyer's overheated rhetoric that the defense team was "breaking the law" and had "crossed the line."

He was embarrassed at having been called on his antics. But, he tried again and again to score some soundbite points for NiFong. So at the end of the show, he broke into hysterical laughter while they all cringed.

This trial is going to be a bloody mess.

Unfortunately for Nifong, shortening the time of the alleged attack only undermines what remained of his credibility. Time-stamped photos show the dance ending at 12.04am, a timeline reinforced by the accuser’s cellphone records and the neighbor’s statement. The second dancer’s statement, corroborated by that of the neighbor and most of the accuser’s myriad and mutually contradictory versions, has the dancers proceeding from the dance’s conclusion to the bathroom for an unspecified period of time, and from there to the car, where one of the players persuaded them to return to the party. Unless the D.A. is now contending that these developments occurred with the two dancers effectively in a full sprint, both Seligmann and (it appears) Finnerty had departed the house before the window for even a 5-minute attack opens, while Seligmann well before that time was on the phone.

Spurning defense demands for a bill of particulars, the district attorney announced, “We’re not required to report the exact time an offense took place.” Speaking directly to Osborn, Nifong continued, “Out of his client’s whole life, we have given him an hour and a half that he has to account for.”

Setting aside the fact that Osborn has already done precisely that, Nifong’s comment reflects his belief that the defense carries the burden of proof. To quote Wendy McElroy’s recent article,

_{The assumption that a defendant is ‘innocent until proven guilty’ has been reversed. Seligmann is assumed to be guilty. But more than this. It is as though Seligmann is not allowed to prove his innocence no matter how much evidence he produces.}

It’s easy to see the Nifong distraction for yesterday’s hearing: his bizarre obsession with defense attorneys’ routine decision to poll 300 Durham County residents about the case. What, then, is the bombshell evidence he expects? I suppose we’ll learn in a few days, but for now, my money is on the DNA. Defense lawyers want complete information about the second round of DNA testing, with a suggestion that there might be additional matches to people other than lacrosse players (no matches with the accuser) and the accuser’s three admitted sexual partners in the week before the party (one match, of three). If additional DNA exists, and that DNA belongs to someone not yet tested, then the accuser concealed information about her number of sexual partners in the days before the party.

Judge to review telephone survey about lacrosse case

By John Stevenson, The Herald-Sun
September 22, 2006 8:31 pm

DURHAM -- District Attorney Mike Nifong gave defense lawyers 615 more pages of information about the Duke University lacrosse rape case Friday, and Judge Osmond Smith agreed to review a defense telephone survey that Nifong said was tainting prospective jurors.

The new documentation brought to 2,465 the total number of pages Nifong has surrendered to the defense team so far. The latest paperwork reportedly included a 2½-inch stack of e-mails generated by the Durham Police Department.

Nifong also turned over a CD-ROM and an audiocassette tape to defense attorneys Friday.

"There's nothing in there that's bothersome," defense lawyer Joe Cheshire said later, after a brief review of the new materials. "We don't expect there will be."

Cheshire represents David Evans, a 2006 Duke graduate and one of three Duke lacrosse players accused of raping and sodomizing an exotic dancer during an off-campus party at 610 N. Buchanan Blvd. in mid-March.

The other defendants are Collin Finnerty and Reade Seligmann. All say they are innocent, and are each free under $100,000 bonds pending a trial expected to occur next year.

The defendants did not attend Friday's court hearing, the first in more than a month in the controversial, highly publicized case.

Kevin Finnerty, Collin Finnerty's father, was present but told reporters only that his son was staying healthy and doing well.

The most heated of many topics Friday was the recent telephone survey of 300 registered Durham voters, conducted for defense attorneys by a professional polling company.

Nifong -- backing his argument with sworn affidavits from his wife and an anonymous woman -- contended the survey was influencing prospective jurors against his case. His wife, Cy Gurney, and the unidentified woman both participated in the telephone poll.

The anonymous woman said the surveyor's "agenda was to try and persuade a jury or potential jurors. I thought that this has to be illegal. ? I believe I was told information that I should not have been told unless I was a member of the jury trying this case. I do not believe I could be an impartial witness after hearing this because I was convinced that [the three suspects] were innocent."

Nifong branded the poll Friday as "prima facie evidence of an attempt to influence jurors."

But defense lawyers said they needed to determine how much prospective jurors may have been influenced by Nifong's public comments early in the case -- including assertions, before DNA test results came back, that the three suspects were guilty.

The survey was one way of finding out, the lawyers said.

"We felt in this case it was highly appropriate because of the massive publicity," said attorney Wade Smith, representing Finnerty. "We would be derelict in our duties, we would commit actual malpractice, if we don't try to figure out what kind of jurors we should have."

Smith denied the polling was an attempt to influence prospective jurors.

"The whole idea here is to find out what people think, not to tell them what to think," he said. "We would be shooting ourselves in the foot if we tried to create questions to get a particular answer. ? We did this in the best of faith, the very best of faith. We think we must do more of it."

Judge Smith agreed to examine the survey questions and answers but withheld any ruling on the topic indefinitely.

"It's just a silly little issue," Cheshire said later. "Polling has been done in criminal issues in this state for 30, 40 years. You have to have some idea, in order to pick a jury, what people are thinking."

Cheshire also said that, based on what they learned about prospective jurors, it was possible -- but not certain -- defense attorneys would ask to move the trial away from Durham.

In other business Friday, Judge Smith turned down a defense bid to get more precise information from Nifong about the time and location of the alleged rape.

Lawyer Kirk Osborn, representing Seligmann, said prosecution information suggested the crime had occurred over roughly a 30-minute period late on March 13 or early on March 14.

But Osborn said he needed a more specific time to support Seligmann's alibi -- that Seligmann has taxicab, bank ATM and cell phone records indicating he was doing other things from 12:05 a.m. until 12:46 a.m. on the 14th.

"When you assert an alibi, time is of the essence," Osborn said. "What day did it happen? Was it the 13th or the 14th?"

Osborn also said the accuser had further muddled the situation by giving at least a dozen inconsistent or implausible versions of what allegedly happened to her.

For example, she claimed she had been raped in a bathroom containing a blue carpet and a full-length mirror, but the only full-length mirror was in a different bathroom, according to Osborn.

So Nifong should be required to specify which bathroom was at issue, Osborn argued unsuccessfully.

Nifong contended the law did not require him to answer Osborn's questions.

"If he [Seligmann] can't provide for every minute in his alibi, it means the alibi is not airtight," Nifong said. "But if I had to speculate, I would say this whole event probably took about five minutes, 10 minutes at the outside. If [Seligmann] wasn't there, he doesn't have to worry about it."

Another ruling from Judge Smith went in favor of the defense lawyers. It allows them to receive underlying data that led researchers to conclude there was no DNA from any of the three rape suspects in or on the accuser's body, or on her clothing.

Initial scientific testing was done by the State Bureau of Investigation in Raleigh, with follow-up work at Nifong's request by a private firm, DNA Securities in Burlington.

Lawyer Brad Bannon, representing Evans along with Cheshire, said Friday the underlying scientific data was needed to assess the reliability of DNA results.

"The bottom line is, the state chose to pursue this evidence," Bannon said. "We are entitled to the information no matter how much it costs. You can't say the Fifth Amendment and Sixth Amendment have a price."

The judge agreed and ordered the SBI and DNA Securities to provide the requested data by Oct. 20. He also ruled that taxpayers must pay the $4,035 needed to acquire the information from the private laboratory in Burlington.

Another court hearing in the case is scheduled for Oct. 27.
URL for this article: http://www.heraldsun.com/durham/4-772261.html

http://www.newsobserver.com/1185/story/489883.html
DA gets to wait on his theory
Lacrosse case is focus of hearing
Benjamin Niolet and Anne Blythe, Staff Writers
DURHAM - District Attorney Mike Nifong will wait until the Duke University lacrosse rape case goes to trial before telling the defense exactly what the state thinks happened on the night in March that an escort service dancer accused three players of rape.

In a lengthy court hearing Friday, defense lawyers lost their effort to force Nifong to spell out in detail what investigators and the accuser say took place.

"What we're wanting is the exact time that this occurred," defense lawyer Kirk Osborn told the judge. "Her statements are inconsistent about which bathroom it occurred in. ... Her statements are inconsistent about who did what to her."

Superior Court Judge W. Osmond Smith III agreed with Nifong. The state will present its theory of the case -- including what each player is specifically accused of doing -- at trial. Nifong told the lawyers that they can ask questions about the timeline of the accuser, who will "most certainly" testify.

In addition to a new stack of written evidence, Nifong gave the lawyers some new details about the case. He said in court that the woman says she was assaulted vaginally and orally and that someone assaulted her rectum with either objects or body parts. The woman told police that the attack took 30 minutes, but Nifong said it may not have lasted that long.

"If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside," Nifong said. "I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."

The hearing was the first since Smith was appointed to handle the case until its end. The next is scheduled for Oct. 27.

Dave Evans, Collin Finnerty and Reade Seligmann are each charged with first-degree rape, first-degree kidnapping and first-degree sex offense. The players did not attend Friday's hearing. Finnerty's father, Kevin Finnerty, was present.

Nifong handed over 615 pages of evidence as well as a cassette tape and compact disc to the defense lawyers. The new batch brings the amount of pages of evidence collected for the case to 2,465.

At the hearing, Nifong and the lawyers discussed evidence yet to come, a defense poll of Durham residents and a judge's order that prevented potential witnesses from speaking to the news media. And as they do every time the lacrosse case goes to court, Nifong and the lawyers carped at each other throughout the morning and afternoon. When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples.

"I have to note the irony," Nifong told the judge when a defense lawyer asked for more information about DNA testing. Nifong told the judge that the lawyers held news conferences after both rounds of DNA testing were complete to announce that the tests showed no rape occurred. Yet now, the prosecutor said, the lawyers wanted the type of information defense lawyers often use to attack the reliability of DNA tests.

"It's interesting now that they are trying to get information that would help dispute those tests," Nifong said, noting that the information the defense wanted copied from a private lab would cost $4,000.

Defense lawyer Bradley Bannon raised his voice saying that the district attorney obtained indictments despite the first DNA tests, which were negative. "The state chose to pursue this evidence. We are entitled to this information that we're asking for no matter how much it costs."

The judge ordered the state court system to pay the costs of the lab employees' time and resources.

Nifong told the judge that a telephone poll commissioned by the defense was an attempt to influence the opinions of potential jurors. Nifong only knew about the survey because a pollster called the Nifong household Sept. 11 and spoke to the prosecutor's wife for an hour. She filed a sworn statement in which she described the interviewer as more interested in giving information than receiving it. In court Friday, Nifong produced another sworn statement from a woman who said she was polled and thought that she had been given a version of the facts in the case that was designed to skew her opinion.

Nifong asked the judge to decide whether the poll was appropriate and to decide whether it violated any ethical rules.

Defense lawyer Wade Smith told the judge that the poll of 300 Durham residents was necessary because of the unprecedented amount of publicity the case has received.

"We have tried to think of any case in North Carolina history that comes close to the kind of interest that has been generated in this case," Wade Smith said. "There isn't a person at this table who would squint down his eyes and say, 'I think I will try to influence improperly the 240,000 people of this county.' "

Defense lawyer Joseph B. Cheshire V was less cordial.

"I do not take being accused of violating the canon of ethics lightly," he said.

The lawyers gave Judge Smith a sealed envelope containing the survey questions. Cheshire told the judge that when he reviewed the questions, he would notice that they differ greatly from the way Nifong's wife remembered them.

The judge also ordered the lawyers to abide by the rules of professional conduct that govern lawyers in North Carolina. The order replaces one issued by a previous judge that applied the rules -- and specifically the ones regarding statements to the news media -- to witnesses in the case. Judge Smith said he would make no judgments on the previous statements by lawyers in the case, but now that he was assigned, the lawyers should remember that cases are tried in court.

"The issues of this case need to be determined in the courtroom," the judge said.
Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.

WHAT ARE THE ODDS?

Wade Smith, a lawyer representing Collin Finnerty, made District Attorney Mike Nifong crack a wide smile Friday as he defended the defense's use of polling.

Smith, who has rarely spoken during hearings about the lacrosse rape case, noted the irony: Of the 300 people called in a county with a population of 240,000, the pollsters just happened to contact Cy Gurney, the district attorney's wife.

"I know Mr. Nifong knows that we would not call his wife," Smith told the judge in his colorful, homespun fashion as he argued against the accusation that the defense had tried to taint the jury pool.

Smith assured the judge that she would not be called again.

"She actually wants to be involved in any future surveys," Nifong said with a laugh.
HOW MANY?

When one of the defense lawyers said that Nifong gave 50 to 70 interviews about the case, Nifong said he wanted to set the record straight. He checked his schedule and it showed that he actually gave more like 15 to 20 interviews. He said he had many conversations with reporters, some just to say that he would not comment on the case.

But the number 50 came from Nifong himself.

In a March 31 interview with a News & Observer reporter, Nifong was asked "How many interviews do you think you've given?"

"In excess of 50," Nifong said.

http://www.nytimes.com/2006/09/23/us/23duke.html?_r=1&oref=slogin
September 23, 2006
New Timeline by Prosecutor in Duke Case
By DUFF WILSON

DURHAM, N.C., Sept. 22 — The Durham district attorney said in court Friday that he believed there was no evidence that a reported sexual assault at a Duke lacrosse team party last March lasted 30 minutes, as the police had stated.

Instead, the prosecutor, Michael B. Nifong, said he thought the assault lasted 5 to 10 minutes.

Mr. Nifong made his statement at a hearing in which the judge rejected a defense request that prosecutors provide detailed accounts of the time and nature of each criminal act cited by the accuser.

“If I had to speculate,’’ Mr. Nifong said, “I’d say this whole event probably took about 5 minutes, 10 minutes at the outside. When something is happening to you that is really awful, it seems like it takes a lot longer than it actually does.”

J. Kirk Osborn, a lawyer for one of the three defendants, said Mr. Nifong kept changing accounts as the investigation evolved, a tactic that would make it harder to mount a defense.

“This is exactly what we’re afraid of,” Mr. Osborn said.

Mr. Nifong said the woman’s account would be subject to cross-examination and jury review after she testified at the trial. The three men, members of the lacrosse team, have been charged with first-degree forcible rape, first-degree sexual offense and kidnapping. All three have pleaded not guilty.

In denying the motion for a detailed account of the crime, known as a bill of particulars, the judge, W. Osmond Smith III of Superior Court, accepted Mr. Nifong’s argument that such specificity was not required in the pretrial stage and that defense lawyers had received all available statements and evidence, including 615 pages on Friday. That put the total at 2,465 pages.

The trial is widely expected to start in the spring.

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