Where's the AG?

by Cliopatria

North Carolina's attorney general is Democrat Roy Cooper; under the state's somewhat peculiar prosecutorial structure, he has authority to take control of the Duke lacrosse case away from Durham DA Mike (Ahab) Nifong. It seems as if the time has come for Cooper to act.

ABC reports that today Nifong has obtained an indictment against a third player, David Evans, in the Duke case, who was identified by the accuser with 90% certainty. The accuser also claimed that the player had a mustache. Yet the defense says that it possesses photos from the day of the attack and several days before showing that the player had no mustache. As Ralph has pointed out, the defense could be lying--but this claim isn't a terribly difficult one to verify. Nifong, of course, has not sought a subpeona for the photos, and there's no sign that he requested copies of the photos from defense lawyers. Evans' attorney told WRAL,"I tried to meet with the D.A. this morning, and he was unavailable."

More to the point is this item from the ABC report:"In a hallway confrontation today at the Durham County courthouse, Nifong laced into defense lawyer Kerry Sutton in an expletive-laden tirade where he complained angrily about last Friday's defense news conference." This is not the behavior of a normal prosecutor. Nifong--he of the 70 press appearances in the weeks following the alleged attack--has also recently demanded that the press stay off his floor in the DA's office, while, for reasons that remain unclear, delaying handing over promised material to the defense by at least 33 days, until mid-June.

It's possible that Nifong possesses heretofore unrevealed evidence showing that a rape occurred in this case. But there's no evidence that a district attorney who launches into a public"expletive-laden tirade" against one of the most prominent defense lawyers in his jurisdiction (and one who actually backed Nifong in the primary) is capable of serving the interests of justice. Cooper should act now.

Update, 6.21pm. Defense attornney Jeralyn Merritt posts the following:"This was the most compelling and believable public statement of denial I have ever heard. Dave Evans' parents should be so proud of him. If this accuser is lying, she must be held criminally liable for ruining these young mens' reputation. This has seemed to me to be a bogus case from day 1. If she lied, what a travesty for all of the team members and for true rape victims everywhere."

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Robert KC Johnson - 5/19/2006

I didn't quite say that--I said that I opposed Prof. Everett's recommendation that Nifong give the accuser a lie detector test and drop the case if she failed it, because, as you noted, there are many reasons other than committing falsehoods one could fail a lie detector test. I think the case should be dropped because there appears to be no evidence obtained through proper procedures implicating the accused; but I don't see how a prosecutor could drop a case solely on the basis of a failed lie detector test.

At the same time, in Evans' case, I don't see any reason to out-and-out ignore the test, which was done voluntarily, especially when the results reinforced the other exculpatory evidence that Evans possesses--photos that, despite the accuser's claim, he didn't have a mustache; and that there was no DNA match linking him to the accuser.

But I would be equally uncomfortable saying that charges against Evans shouldn't be filed solely on the basis of a positive lie detector test.

Oscar Chamberlain - 5/17/2006

Just a few notices above you agreed with me that a lie dectector test of the accuser could neither confirm or refute her testimony. What's the difference here?

Robert KC Johnson - 5/17/2006

On the video itself, since the physical evidence that Nifong initially promised (notably DNA) seems not to have materialized, personal credibility increasingly becomes critical to the case. In this respect, the opinion of a prominent attorney such as Merritt--plus revelations that Evans passed a lie detector test--seem to me quite compelling.

On the district attorney's claims that defense actions seek to poison the jury pool, North Carolina ethics guidelines are clear: since Nifong gave 70 media interviews in the days after the event, many of which demonized the players and assumed facts not then (or now) proved, the defense attorneys pretty much have carte blanche to respond in public. I agree this is a less than ideal approach. But it seems the height of hypocrisy for Nifong to complain about it at this stage.

Robert KC Johnson - 5/17/2006

As I noted in the comments above, the state guidelines seem to be quite clear that prosecutors cannot simply refuse to examine defense evidence because that evidence might contradict their theories.

I certainly hope that the "right" will prevail. I don't see how that's possible, however, with a prosecutor who consistently behaves in a procedurally irregular fashion.

Oscar Chamberlain - 5/16/2006

KC

I have no idea if the third person indicted is innocent as snow or guilty as hell. Nor does the defense attorney you quote. Nor does the prosecutor (also unrelated to the case) who I heard this morning argue that this statement plus other defense statements was intended to taint the jury pool.

Nor do you.

But the manner in which you used the quotation of that defense attorney is, well, wrong. You are a good enough historian to know that sincere sounding public statements cannot be considered reliable evidence. You also know that defense attorneys tend to suopport each other in controversy just as prosecutors do.

Yet you presented it as authoritative. It seems that you have made your posts on Cliopatria unfiltered outlets for the defense.

As far as the case itself is concerned, may the right prevail.

Robert KC Johnson - 5/16/2006

I agree--there's no plausible or even conceivable political motive at this stage. Simply from a practical angle, why would a prosecutor not want to look at defense evidence, even if only to see what the defense has?

Every state has different laws, but the NC analysis referenced above quotes a NC guideline that prosecutors must not "intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." It's hard to see how Nifong's conduct with first Seligmann's and now Evans' defense attorneys' offer to evidence comforms to this requirement.

Ralph E. Luker - 5/15/2006

"inexplicable" is a good choice of words. Since Nifong has been re-nominated and faces no opposition in a general election, you cannot attribute his conduct of the case to his current political ambitions.

Robert KC Johnson - 5/15/2006

A North Carolina attorney weighs in on Nifong's conduct here:
http://www.dukebasketballreport.com/main/7579.html

And defense attorney Jeralyn Merritt does so here:
http://talkleft.com/new_archives/014846.html#comment-216470

Again, the pattern of seeking an indictment while refusing even to consider exculpatory evidence (in this case, photos of the player from the day of the party without a mustache, as the accuser claimed) is inexplicable.

Robert KC Johnson - 5/15/2006

From the standpoint of a grand jury, the evidence that we know exists in this case--a photo ID, the police report, and the medical evidence that police interpreted as indicating a rape--is more than enough. Grand jurors undoubtedly wouldn't be informed that the photo ID array didn't conform to state guidelines, nor is the prosection required to inform them of a DNA match to the boyfriend--just as, in the first two indictments, the grand jurors weren't shown the ATM tape of Seligmann at the bank while he was allegedly committing the crime for which they were indicting him. If I were a grand juror under those circumstances, I'd vote to indict.

Under North Carolina law, Nifong had the option of going the grand jury route or having a probable cause hearing. There's little surprise that he chose the former. It's hard for me to believe a judge would have held this matter over, absent the heretofore unrevealed "bombshell evidence" that looks less and less likely.

Oscar Chamberlain - 5/15/2006

The word "obtained" isimportant here. The indictment was issued by a grand jury and not the prosecutor.

The relationship between grand juries and prosecutors can be problematic, so there is a limit to how far I will push this point. Still, the juries do provide a bit of a check on presecutorial misconduct, and the jurists in this case pretty much have to be aware of the broader situation no matter how hard they try to recuse themselves.

I think we have to consider the issuance of a third indictment as an indicator that at least some solid evidence exists.