Duke Lacrosse: Nifong May Have Subpoenaed Federally Protected Information
Update: I'm told there may be an exeption in the federal statute for grand jury subpoenas. Which might just leave the issues of whether Nifong should have obtained prior court approval for the subpoena and whether he needed individualized suspicion for each player whose records he subpoenaed.
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Original Post:
It seems DA Mike Nifong has stepped in it again. Lawyers for 33 unindicted players Monday filed a motion to quash subpoenas he issued without a court order that requests home addresses and other personal information protected by federal privacy laws.
And back to the last Defense motion(pdf) to throw out the Court's initial order compelling the 46 players to provide photographs and other non-testimonial evidence, and evidence derived from them, such as the later photo identifications, I received a request to weigh in on the motion, and in particular, commenters nit-picking over phraseology, so here's my reaction.
I have no problem with the defense motion. It's a motion to suppress evidence obtained from the court's order directing the 46 players to come in for photographs and DNA testing (non-testimonial evidence). The order was issued on the motion of the prosecutor supported by an affidavit of the police officer.
It was the prosecutors job, through the affidavit, to establish probable cause that a rape had been committed. Only upon a showing of probable cause would the court order the players to come in for testing and photographs.
The defense alleges that the officer who wrote the affidavit (the Affiant) failed to apprise the court of information which might have defeated the probable cause showing. They argue that had the judge been aware of the "material omissions" he might not have found probable cause a rape occurred and thus not issued the order. Had the order not been issued, there would have been no photographs of them to show to the accuser during a lineup. And no identification from the photographs. They are asking that everything obtained directly or indirectly from the order be ruled inadmissible and be destroyed.
In a sentence, their argument is: if one considers the allegations in the cop's fffidavit together with information he was aware of but failed to tell the court about (contained in the exhibits), there is no probable cause showing.
Among the omissions were the officer's failure to tell the Judge that days after the party Kim told the officer the rape allegations were a crock; that the accuser first alleged, then denied, then re-alleged she was raped; even when she alleged she was raped she denied the use of foreign objects, and a*nal rape and condoms; that the rape examination did not find evidence of a sexual assault, only of v*ginal edema (swelling) and she had engaged in intercourse with at least one other man that weekend, in mas*t*bation with a sex toy while dancing for a couple, and had two other escort appointments with men that weekend, one of which took place in a hotel room. Any of those could have accounted for the swelling; that the rape examiner was a trainee; and Kim's written and oral statements of which the officer was aware that contained a version of events that made it highly unlikely, if even possible, that a rape by three men occurred in the short time period they were apart that night.
The motion goes between direct quotes from the statements, one of which is a summary, and paraphrasing and interpreting them. Because all the statments are attached, there is no attempt at deception. They are put right out there for the Court to see.
So hold your bar complaints, the defense has done nothing wrong. They have once again demonstrated the gaping holes in the prosecution's case. Those rooting for the prosecution may disagree with their interpretation, but considering all of the statements and reports together, I don't see a problem. I certainly think it's a fair statement to say that she was "involved in some sexual manner" with four other men.
I agree with Newport pretty much -- a fair reading of Jarriel's statement indicates Jarriel was her pimp not just her driver. The part of his statement where he relays waiting outside for her while she's on a "date", and then she comes out and asks him to stay another hour, and then another and he keeps saying ok and stays in the car by himself all those hours...use your common sense--he was making money off of what she was doing and every extra hour meant more money. Jarriel wasn't running a limo service which charges by the hour -- not if he was having sex with her too. And that little spat where she wouldn't get back in the car and he had to keep going after her and make her get in the car....it was like a scene right out of the movie Hustle & Flow, maybe Terrence Howard can play Jarriel in the movie.
I was also struck by the continual references in Kim's statement as to how obsessed the accuser was with getting more money out of the guys...and how Jarriel would drive her to her parents house in between "appointments" -- how could they not know what she was up to?
This case is a train wreck waiting to happen. The saddest part is that even if the three players are vindicated in a criminal court, their reputations will still be sullied because of the racial taunts, which people will attribute to them if it turns out other players made them...and because of people who think that college kids drinking, partying and calling an escort service for a stripper are morally deficient in some way.
On a tangential matter, bandwidth is expensive. There are hundreds of comments a day on this case. It wouldn't hurt for a few of you more loquacious commenters to throw a few bucks in the tip jar from time to time. And, it would be sincerely appreciated.
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