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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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    What federal privacy laws?

    Lora, (This relates to the discussion at the end of the prior thread.) I encourage you to keep commenting, and not become discouraged. Your comments and analysis are appreciated, and your support of the opposing position is important for the ongoing discussion. (That being said, I am of the view the assault did not occur.) This is a nice site, and the discussion of the case is the best I've found. I have been following the discussion here for over a month, and want to thank all of you for the excellent information and analysis. Like many of you, I am fascinated by the case, like being able to follow the prosecution and defense of a very interesting case in almost real-time, and enjoy being able to read all the articles and court papers linked here, as well as the related analyis on the site. Now that I've figured out how to sign up (this being my first blog, it took me 10 minutes to find the link to get to the sign up), hopefully I'll also find a way to contribute something.

    Lora said:
    Painful and damaging as a false allegation of rape is, actual rape is far more painful and damaging.
    I believe this is backward. A successful (ie one resulting in conviction and imprisonment) false allegation of rape is typically more damaging than an actual rape. Fortunately most false accusations of rape are unsuccessful.

    Talkleft said:
    By the way, is Lora the only one here arguing a rape may have occurred? It seems that way to me and maybe you all are giving too much attention to her arguments.
    Not that I want to defend Lora or anything but of course a rape may have occurred. I would say the chance that the AV's story is substantially correct is less than 1% but it is not zero. I support the death penalty although there is never 100% certainty of guilt so the occasional execution of an innocent is likely. Similarly in cases like this I would support declaring the accusation unfounded although this would likely result in the occasional raped woman being further hurt by being labeled a liar. I think it is dishonest for supporters of the death penalty or of declaring improbable rape accusations unfounded to argue that there is no chance of error. That said, the real issue is whether Nifong has a case worth bringing. It appears to me that it is nowhere close and thus should not have been brought.

    Lora, The average jail time you give for a rape conviction seems low. Average incarceration for rape is one year? I don't buy it. Most states criminal statutes provide for at least ten years. What do the defendants face in this case? I heard something like 15 plus. Sorry for picking on you, I'm sure you want justice to do done.

    The sentence for false accusations should be the same as the sentence for rape.

    Talk Left posted:
    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;
    With whom did she have sexual intercourse that weekend? That claim is not supported by any of the attached documents. She had a meeting with the "older gentleman" and one with the couple. We don't know if there were men or sex toys, or neither, involved in any other appointments she had that weekend. Talk Left posted:
    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.
    Talk Left posted:
    IMHO, they did reference his summary as well as her written statement and they attached both. You're going nowhere with this argument.
    They can not write that an attached document states one thing when it clearly states the opposite. These are not interpretations. They specifically state two facts are contained in Ms. Pittman's statement that are not in her statement. They do not reference Hinman's summary of Ms. Pittman's statement. They reference her statement which says the opposite of what they assert it says. Are their any rules concerning what they can or can not write in a motion? If so, how can one of them not be that they can not state a fact (not an interpretation of fact) is in an attached statement when it CLEARLY is not - and when the supporting statement CLEARLY states the opposite of what the motion is claiming it states. From the defense motion:
    in this written statement, Ms. Pittman informs the investigators that [redacted] never went back in the house
    Ms. Pitmann makes no such claim in her written statement, the statement to which they are referring. From the defense motion:
    also omitted that once [redeacted] got to Ms. Pittman's automobile, she stayed there
    Ms. Pittman's handwritten statement, the statement to which they are referring, says the accuser did not stay in the car. Talk Left posted:
    I certainly think it's a fair statement to say that she was "involved in some sexual manner" with four other men.
    What four men? There is the male/female couple and the "older gentleman." The other appointments could be performances for lesbians. The supporting document, Jarriel's statement, does not mention any men other than the"older gentleman." The "involved in some sexual manner with four other men" claim is not supported by any of the attached documents. Talk Left posted:
    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.
    It's not about hiring strippers, it's about how they reacted when the stripper party went bad. The whole team's reputation is sullied from the broomstick joke/threat and the racial slurs because the players who made those remarks are cowardly hiding behind the Blue Wall. The code of silence they adopted in protection of one another is what led many people to conclude the players are morally deficient.

    TL, You wrote:
    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.
    Oh, sorry. I thought this was ad-supported. Please remove all my posts if you would, and let me know what I owe you. I'm no welcher.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#9)
    by wumhenry on Tue Jun 13, 2006 at 04:35:51 AM EST
    inmyhumbleopinion wrote:
    With whom did she have sexual intercourse that weekend? That claim is not supported by any of the attached documents.
    "After eating we get into bed and watch TV. While watching TV we engage in sexual intercourse." -from handwritten statement of Jarriel Lanier Johnson dated 4/6/2006

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#10)
    by wumhenry on Tue Jun 13, 2006 at 04:36:59 AM EST
    ... describing events that occurred on the night of March 11, 2006.

    wumhenry, On the last page of Jarriel Johnson's statement:
    looking at my datebook on my cell phone I realized that the dates that I engaged in sexual intercourse with [redacted] was off by a week. Our last encounter together was the Sunday prior.
    That would have been 8 days before the Duke lacrosse team party.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#12)
    by weezie on Tue Jun 13, 2006 at 05:04:32 AM EST
    Thank you TL for the weigh in. I'm sendng you a contribution today. imho, you must be a fun person to party with. Whew, you do hang in there. Does anybody else keep datebooks with memories of their sexual assignations? Is Jarriel Johnson our 21st century's answer to St. Simon at the court of Louis XIV?

    In today's Raleigh News and Observer, former House Ethics Committee chairman and current Duke Law professor James Coleman, a liberal African-American, publicly calls for Nifong to be removed from the case; and strongly attacks the violation of normal state procedures that we've seen from Nifong's office. Here's the link.

    Bill posted
    What federal privacy laws?
    The federal privacy laws relate to student records. The Buckley amendment of 1974 places extraordinary privacy restrictions on all college student records.

    weezie posted:
    imho, you must be a fun person to party with.
    I am.
    Whew, you do hang in there.
    I do.
    Does anybody else keep datebooks with memories of their sexual assignations?
    I do. Mine has more entries than I've made at TalkLeft. ;)

    Duke prof: Rape case needs new prosecutor
    James Coleman, the Duke law professor who led the university's investigation of the lacrosse program, says evidence presented by defense lawyers has made him question whether District Attorney Mike Nifong is too personally invested in the case.
    ...
    Coleman said he's followed the case closely in the newspapers but hasn't spoken with any of the lawyers involved.
    hahaha Here's someone to fill Dan Abram's shoes.

    Maybe when they said the AV had sexual relations with at least one man that weekend, maybe they were referring to the "boyfriend's" semen still in her.

    Here's someone to fill Dan Abram's shoes.
    Yeah, he's just another hack.

    From James E. Coleman, Jr.'s CV:
    1987 NAACP Legal Defense and Education Fund Pro Bono Award for contribution to enforcement of civil rights laws.
    Chief Counsel, United States House of Representatives Committee on Standards of Official Conduct
    Yeah, he's just pulling for the Dukies because he works there.

    Immie said: hahaha The only thing that Coleman said that was close to wrong was saying that the appointment of a special prosecutor would not be the end of the case. Once this baby is out of Nifong's hands the charges would very soon be dismissed. The only thing that's keeping this case alive is Nifong's refusal to acknowledge the lack of heartbeat.

    Regarding Jarriel Johnson's records of sexual activities with the AV, I can just see this guy on the stand. I'm sure he'll be told to bring in that little book, too, and will be asked to explain all the various engagements which the AV made in the weeks and months prior to the lacrosse party and how much she was paid and for what services. He will be asked to explain his job and the AV's job, what his cut was, etc. +++ I offered this before, and I'll say it again: I wonder how much animus that the AV may have had against the attendees at the party because they didn't find her sexually appealing. Her sexual activity seems to be closely connected with her money-making abilities, she seems to have wanted to go back to the party to make more money, but reports from Roberts (aka Pitman) seems to indicate that the party-goers just wanted the AV to get out. The AV's motive for a false rape report may have been to avoid being involuntarily locked up, but she may have fingered players for rape precisely because they found the drunken, raving stripper so unappealing. What's the line about a woman scorned?

    Bob:
    I offered this before, and I'll say it again: I wonder how much animus that the AV may have had against the attendees at the party because they didn't find her sexually appealing.
    True, they made convenient scapegoats due to their perceived wealth, position, and power, but I think it's more of a coincidence. The "fellas" (to use Kim Roberts' term) had requested a white stripper, but they agreed to continue when "Precious" showed up. I don't think "Precious" tried to think back through her list of "dates" and "engagements" to find a likely perpetrator, she just chose the last. I think that's why she kept changing her story. At first 20 guys (the same number Kim Roberts estimated were in attendance), then 3 in the bathroom with "Nikki" helping in the assault, then just 3. She had difficulty coming up with a believable story while she was still drunk/hungover from the night before. Besides, if it was racially motivated, why include "Nikki" as one of the perps?

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#24)
    by wumhenry on Tue Jun 13, 2006 at 07:43:48 AM EST
    IMHO wrote:
    With whom did she have sexual intercourse that weekend? That claim is not supported by any of the attached documents. She had a meeting with the "older gentleman" and one with the couple.
    That wasn't all. Johnson also reports a 30-minute "appointment" at the Holiday Inn Express on the afternoon of March 10th.
    We don't know if there were men or sex toys, or neither, involved in any other appointments she had that weekend.
    Sure, everybody knows about the heavy demand for toyless lesbian outcall service in Durham NC.

    InnocentBystander, how about a little more "legitimate" news source for your story? ABC News version This isn't the same. It's sick and twisted that two adults comply with the directions given to them over the phone by a "police officer" including oral sex. Thank goodness the handyman knew better!

    InnocentBystander, here is what Newport said:
    I can not believe that Reade Selligman, or any other sane individual for the matter, would stick his member in the mouth of a woman who was fighting off three men.
    This is different than the McDonald's case in that the AV was supposedly fighting back. In the McDonald's case, the girl was not. No force was used by either party. This is a baffling case (and a perfect illustration of our willingness to submit to perceived power), but not analogous to the Duke case.

    So I finally figured out that "immie" refers to IMHO ... So, IMHO, please tell me how you determined that I showed "personal animus" towards the AV? Of course, if it wasn't you who said that, then I apologize ...

    Posted by noname June 13, 2006 08:57 AM InnocentBystander, here is what Newport said: I can not believe that Reade Selligman, or any other sane individual for the matter, would stick his member in the mouth of a woman who was fighting off three men. StrawMan........I was not refering to that statement. You switched the argument. Newport said to name one case of oral rape that did not involve a weapon such as a gun or a knife and I did it. People say, "Name one. Just name one." and even if you do they won't admit it.

    Bob in Pacifica posted:
    Maybe when they said the AV had sexual relations with at least one man that weekend, maybe they were referring to the "boyfriend's" semen still in her.
    The defense motion does not say that, Talk Left did. I haven't seen any statements that support that claim. imho posted:
    We don't know if there were men or sex toys, or neither, involved in any other appointments she had that weekend.
    wumhenry replied:
    Sure, everybody knows about the heavy demand for toyless lesbian outcall service in Durham NC
    wumhenry, What don't you get about this: It does not matter what you or I or all of Durham thinks the accuser did that weekend. The defense is claiming Investigator Hinman would have discovered "that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006" from Jarriel Johnson's statement. From the defense motion:
    Had investigator Hinman bothered to interview Jarriel Johnson at the time ( a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006.
    Johnson's statement mentions one man. The "older gentleman" the accuser said "wants to see her perform." Investigator Hinman could not possibly discover the accuser did anything with "at least four different men during the weekend from March 10 through 12, 2006" from Jarriel's statement. The defense lied about the content of Jarriel's statement.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#30)
    by wumhenry on Tue Jun 13, 2006 at 08:54:48 AM EST
    Johnson's statement mentions one man. The "older gentleman" the accuser said "wants to see her perform."
    Investigator Hinman could not possibly discover the accuser did anything with "at least four different men during the weekend from March 10 through 12, 2006" from Jarriel's statement. The defense lied about the content of Jarriel's statement.
    It would be more apt to call you a blatherskite than to call them liars for assuming that a prostitute's 30-60 minute "appointments" in hotel rooms involve having sex with men.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#31)
    by wumhenry on Tue Jun 13, 2006 at 08:57:18 AM EST
    dammit, I'm doing it over. IMHO wrote:
    Johnson's statement mentions one man. The "older gentleman" the accuser said "wants to see her perform." Investigator Hinman could not possibly discover the accuser did anything with "at least four different men during the weekend from March 10 through 12, 2006" from Jarriel's statement. The defense lied about the content of Jarriel's statement.
    It would be more apt to call you a blatherskite than to call them liars for assuming that a prostitute's 30-60 minute "appointments" in hotel rooms involve having sex with men.

    IMHO posted:
    On the last page of Jarriel Johnson's statement: looking at my datebook on my cell phone I realized that the dates that I engaged in sexual intercourse with [redacted] was off by a week. Our last encounter together was the Sunday prior. That would have been 8 days before the Duke lacrosse team party.
    Wasn't he was one of the men that had been one of the dna "donors"? According to the experts, there is no way his sperm would still be there 8 days later..
    DR. MICHAEL HUNTER, FORENSIC PATHOLOGIST, MEDICAL EXAMINER: No, one thing about sperm and in a rape kit, you`re going to have a yield that drops off pretty precipitously say at 12 hours to 24 hours. You are not going to expect to see usable DNA from sperm after, say 72 hours. A week out, I don`t see that that`s going to be possible here.


    wumhenry posted:
    It would be more apt to call you a blatherskite than to call them liars for assuming that a prostitute's 30-60 minute "appointments" in hotel rooms involve having sex with men.
    They didn't say that Investigator Hinman could have assumed blah blah blah.. They said he would have discovered blah blah blah..... No such discovery can be made from Mr. Johnson's statement. The one "appointment" the accuser does describe does not "involve having sex with men." The defense motion adds three more incidents of the accuser being "involved in some sexual manner" with men as being discoverable from Mr. Johnson's statement. They are offering this argument to claim had Investigator Himan interviewed Mr. Johnson before Hinman filed the affidavit, Hinman would have known these encounters with "four men" could have explained the v*ginal swelling. Mr. Johnson's statement mentions one man. He does not mention anyone or anything having contact with the accuser's v*gina. Not even the small (redacted] (sex toy) account is from his statement. Read his statement. What they claim is not there. Plain and simple.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#34)
    by ding7777 on Tue Jun 13, 2006 at 09:42:36 AM EST
    to inmyhumbleopinion
    Investigator Hinman could not possibly discover the accuser did anything with "at least four different men during the weekend from March 10 through 12, 2006" from Jarriel's statement.
    Hinman was an Investigator; it was his job to determine what exactly the AV did based on Jarriel's statement: 1. Had an appt at Holiday Inn Express 2. Had a job at the Millenium Hotel 3. Was visited by her boyfriend 4. Performed for an older gentelman at a hotel

    ding7777 posted:
    Hinman was an Investigator; it was his job to determine what exactly the AV did based on Jarriel's statement:
    1. Had an appt at Holiday Inn Express 2. Had a job at the Millenium Hotel 3. Was visited by her boyfriend 4. Performed for an older gentelman at a hotel
    I totally agree with you, ding7777, but that is not what I am talking about here. I am talking about what the defense motion claims Investigator Himan would have discovered had he gotten Mr. Johnson's statement sooner (before the affidavit was filed). They reference Mr. Johnson's statement which does not state what the defense claims Investigator Hinman would have discovered. I have typed this so many times. It is simple: what the defense claims Hinman would have discovered sooner is not even in Mr. Johnson's statement.

    Reading Jerriel's statement is remarkably sad to me, particularly this:
    Her daughter lets me in. I sit there and play with her kids while Crystal is getting ready.
    Nothing like having your pimp sitting in your parents' house, playing with your children.

    Very coy, Sharon.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#38)
    by january on Tue Jun 13, 2006 at 10:46:26 AM EST
    From IMHO
    The defense is claiming Investigator Hinman would have discovered "that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006" from Jarriel Johnson's statement.
    No, they're not. From the defense motion:
    Had investigator Hinman bothered to interview Jarriel Johnson at the time ( a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006.
    The defense is specifically talking about an interview with Johnson which never took place, not about reading Hinman's statement. And they're absolutely entitled to say what they think he should have found out had he done so.

    january stated:
    The defense is specifically talking about an interview with Johnson which never took place, not about reading Hinman's statement.
    That's true--but given what we've seen from the Durham PD in this case, they would have gone out of their way not to ask him any questions that might have contradicted the accuser's many stories, or Nifong's political needs.

    Sharon, Durga, at what point is [redacted]'s name fair gaime?

    SUO:
    Sharon, Durga, at what point is [redacted]'s name fair gaime?
    At least once in Jarriel Johnson's statement, her name was not redacted.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#42)
    by wumhenry on Tue Jun 13, 2006 at 11:11:47 AM EST
    IMHO is focussing on twigs and leaves to distract attention from the forest. It's true that Jarriel didn't say precisely what the AV did in those hotel rooms, but the very fact that she was a prostitute who was chauffeured by a pimp to three appointments in hotel rooms in the two days before the incident at 610 Buchanan Street obviously undermines the probative significance of the SANE nurse's finding.

    Durga: You don't see that as a sad scenario? You don't see that as a true depiction of the scene? sarcastic: I've already gotten in trouble on this board for using the AV's first name, although I still don't see how I damaged or hurt her by doing that, one evening when I was tired of the "AV v. FA" debate. So my answer is: when TL says I can.

    Sharon, I think her point is that you slipped the accuser's name in your post.

    Let's not use her name. While I don't with the policy of naming defendants but not accusers in cases where the issue is whether a rape occurred at all, I also don't think it's appropriate for a law-related blog to be the place her name is bandied about. I'll continue to delete any references to her name.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#46)
    by ding7777 on Tue Jun 13, 2006 at 11:21:57 AM EST
    to inmyhumbleopinion Seligmann's lawyers say in the very beginning that what they present are illustrations, but not limitations, of omissions from Hinman. If subsequent investigations show that Precious did have a least 4 s*xual encounters that weekend, then the defense has an obligation to show the court that Investigator Hinman failed to do the interview and follow-ups prior to the probable cause order.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#47)
    by cpinva on Tue Jun 13, 2006 at 11:25:13 AM EST
    sarcastic: I've already gotten in trouble on this board for using the AV's first name, although I still don't see how I damaged or hurt her by doing that, one evening when I was tired of the "AV v. FA" debate. So my answer is: when TL says I can.
    you didn't. this coy refusal to name the AV by name is an archaic throwback to the middle ages, when women were considered too delicate to handle anything intellectually strenuous. put bluntly, it's a farce. if it's ok to shout the accused's names to the world, and ruin their reputations without trial, than what's good for the gander is certainly good for the goose. frankly, i'm a bit surprised TL would take that ludicrous position. but, it's her blog.

    january posted:
    The defense is specifically talking about an interview with Johnson which never took place, not about reading Hinman's statement. And they're absolutely entitled to say what they think he should have found out had he done so.
    The interview did take place on April 6, 2006. The defense is saying Hinman's probable cause affidavit is inadequate because had he interviewed Johnson sooner [in time to add the info to the probable cause affidavit] he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. They reference Johnson's statement to support their claim: See [the accuser's March 21, statement] and Statement of Jarriel Johnson on April 6, 2006, pp. 17-21 of attached Ehibits. The problem is what they claim Hinman "would have discovered sooner" is not in Johnson's statement. From the defense motion:
    Had investigator Hinman bothered to interview Jarriel Johnson at the time [March 21, when the accuser was at the Durham Police Station accompanied by Johnson, but only the accuser was interviewed] ( a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. See Statement of Investigator Hinman summarizing [redacted] statement to him on March 21, 2006, pp. 16 of the attached Exhibits and Statement of Jarriel Johnson on April 6, 2006, pp. 17-21 of attached Ehibits.


    Oh MAN, I did it again. I really did not notice that. I am sorry, truly, to everyone offended by that. I honestly did not mean to do that. I found a place where I did not have to try to transcribe the handwritten pdf reports, cut and pasted before I realized. I will accept any punishment anyone wants to mete out.

    SharomInJax posted:
    Nothing like having your pimp sitting in your parents' house, playing with your children.
    Kinda like having the senior partner in the law firm chatting up your kids before giving you a ride to the courthouse.

    SharonInJax:
    I will accept any punishment anyone wants to mete out.
    I believe it was unintentional. Talk Left can edit it.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#52)
    by ding7777 on Tue Jun 13, 2006 at 11:37:52 AM EST
    SharonInJax fwiw - Google hits say that's not her "real" name

    No biggie Sharon. That aside, you are exactly right. The AV is a truly sad case, and getting sadder and more destructive by the day. I alternate between anger and empathy toward her. Which is one of the main reasons I've taken a chill pill on these threads.

    Inv. Himan's report also states:
    She (Kim Roberts) stated that her practice is to get ID from the person who is in charge of the party. She stated she talked to Dan F. who set up the party. She checked his ID and she stated she thought it was a New York license that was displaced."
    Yet, none of this is in Kim Roberts' written statement. Does this mean it didn't happen? Does this make Inv. Himan a liar? Or does it mean that he has other notes (that may or may not have been turned over to the defense attorneys) with information that is not included specifically in the written statement?

    ding7777:
    fwiw - Google hits say that's not her "real" name
    Then Kirk Osborne is filing motions motions using her alias. All of his motions on behalf of Reade Seligmann are on his website. Her name is not redacted in any of them.

    to inmyhumbleopinion
    Seligmann's lawyers say in the very beginning that what they present are illustrations, but not limitations, of omissions from Hinman.
    If subsequent investigations show that Precious did have a least 4 s*xual encounters that weekend, then the defense has an obligation to show the court that Investigator Hinman failed to do the interview and follow-ups prior to the probable cause order.
    I have no problem with them saying he should have done more and should have known more before the filing the probable cause affidavit. I don't care if they want to write "C'mon only a f*ckin' idiot doesn't know she is a hooker. He should have hunted down these Johns and gotten them to admit they had v*ginal intercourse with her that weekend." The problem is what they are stating Hinman would have discovered from Johnson's untimely interview IS NOT IN JOHNSON'S STATEMENT. They have not shown that anyone or anything other than the "small [redacted] (sex toy)" was near her body. Not to get gross, but do we even know what she said she did with it?

    from the defense motion, via imho,
    Had investigator Hinman bothered to interview Jarriel Johnson. . .
    Didn't the defense motion include language to the effect that supporting evidence for the claims of the motion wasn't limited to ONLY the attached documents? It could be that more accurate interview notes from Himan, separate from his public summary, are part of the larger discovery package, and might be more loquacious on the nature of the relationship between the AV and her driver, and the AV and her clients/dates.

    To clarify, I don't think Johnson's interaction with the investigative staff was limited to writing his statement and walking out, therefore any interview with him, especially if done before the affidavit in question, would have resulted in severe doubts being cast on the "probable cause" necessary for the order for DNA testing/shirtless photography to be granted.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#59)
    by ding7777 on Tue Jun 13, 2006 at 11:56:56 AM EST
    mik thanks - ! some google hits say her alias/stage name is her real name and some say just the opposite

    mik posted:
    Yet, none of this is in Kim Roberts' written statement. Does this mean it didn't happen? Does this make Inv. Himan a liar? Or does it mean that he has other notes (that may or may not have been turned over to the defense attorneys) with information that is not included specifically in the written statement?
    If you are talking to me: The problem with the defense motion is not about omitted statements. They are making claims they say are supported by attached documents THAT ARE NOT SUPPORTED BY THE ATTACHED DOCUMENTS. In at least one case, the "supporting document" states the OPPOSITE of what they are claiming it says.

    thinkandtype posted:
    To clarify, I don't think Johnson's interaction with the investigative staff was limited to writing his statement and walking out, therefore any interview with him, especially if done before the affidavit in question, would have resulted in severe doubts being cast on the "probable cause" necessary for the order for DNA testing/shirtless photography to be granted.
    The defense is not claiming the police interviewed him before April 6, 2006.

    imho, I think that's the point. HAD an earlier interview been conducted, it would/could have resulted in evidence that would have cast doubt on the strength of the "probable cause" affidavit.

    IMHO, How many times do you have to make the same point? We all know you think the defense lawyers lied with what they said Himan said. It's a valid viewpoint, but one viewpoint. Repeating it a hundred times doesn't make it any stronger. I think different people interpret the same thing different ways. The defense, along with many others on this board, see it differently than you. I don't think you always have to specifically say somthing to imply it or mean it. If I write "The Sun went down", some one else might say I said "It got dark." Of course I didn't say that! Or did I.... It's a real stretch to claim deception here. Judges are not naive innocents spending their first day in a courtroom. Attaching Himan's statement to the motion lets a judge see it all and decide for themself. That's why we have 'em. I understand most judges can read....

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#64)
    by wumhenry on Tue Jun 13, 2006 at 12:21:32 PM EST
    The problem is what they are stating Hinman would have discovered from Johnson's untimely interview IS NOT IN JOHNSON'S STATEMENT. They have not shown that anyone or anything other than the "small [redacted] (sex toy)" was near her body.
    Fer crissakes. What IS (explicitly) in Johnson's statement, without more -- that she was a prostitute and was chauffeured by her pimp to meetings in hotel rooms with three different clients on March 10 and 11 -- would have greatly undermined the apparent significance of the SANE nurse's finding of diffuse vaginal swelling.

    IMHO: I wasn't addressing you specifically. I was attempting to illustrate how silly this discussion has become. To become so wrapped up in the minutiae and not be able to see the larger issues at hand is pedantic at best, duplicitous at worst.

    wumhenry:
    Fer crissakes. What IS (explicitly) in Johnson's statement, without more -- that she was a prostitute and was chauffeured by her pimp to meetings in hotel rooms with three different clients on March 10 and 11 -- would have greatly undermined the apparent significance of the SANE nurse's finding of diffuse vaginal swelling.
    What he said.

    thinkandtype posted;
    imho,
    I think that's the point. HAD an earlier interview been conducted, it would/could have resulted in evidence that would have cast doubt on the strength of the "probable cause" affidavit.
    Yes, that is their point, but the "evidence" they claim Hinman would have discovered sooner had he taken the referenced April 6, 2006, statement from Johnson, sooner is not contained in Johnson's statement.

    Yes, that is their point, but the "evidence" they claim Hinman would have discovered sooner had he taken the referenced April 6, 2006, statement from Johnson, sooner is not contained in Johnson's statement.
    Do they claim that Johnson's statement is the ONLY supporting evidence? The motion says "see. . ." at least two other attached documents. Additionally, there is no claim that these are the only documents to come from the Himan/Johnson interaction, merely the ones attached.

    Fer crissakes. What IS (explicitly) in Johnson's statement, without more -- that she was a prostitute and was chauffeured by her pimp to meetings in hotel rooms with three different clients on March 10 and 11 -- would have greatly undermined the apparent significance of the SANE nurse's finding of diffuse vaginal swelling.
    A statement that what she did with or for these clients could result in "diffuse vaginal swelling" would be useful. Other than her statement about the "small [redacted] (sex toy)" that we don't know was even *eh hem* inserted, we don't know that anyone or thing touched her body on these "dates." Evidence of an act showing possible causation would be nice.

    IMHO wrote:
    Evidence of an act showing possible causation would be nice.
    I think you will get the evidence you seek (without any hearsay problems) when the witnesses take the stand. The FA is going to have to testify about all these appointments leading up to the Duke party. The rape shield laws exclude this type of information.

    thinkandtype posted:
    Do they claim that Johnson's statement is the ONLY supporting evidence? The motion says "see. . ." at least two other attached documents. Additionally, there is no claim that these are the only documents to come from the Himan/Johnson interaction, merely the ones attached.
    The accuser's March 21, 2006 statement and Johnson's April 6, 2006 statement are the two supporting documents referenced. Do you think they have other supporting documents for the claim Himan would have "discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006?" Since the two documents they did reference as support for this claim do not state what they claim, if they had them, why wouldn't they include the documents that do support their claims? They are trying to persuade a judge here. Judges like the referenced documents to actually support the attorneys' claims.

    Bob wrote,
    I'll say it again: I wonder how much animus that the AV may have had against the attendees at the party because they didn't find her sexually appealing.
    I agree with you Bob, I think the facts will show that they locked her out of the house when she tried to come back in, hence the pictures from the porch when she was looking through the bag and smiling.

    IMHO, You are wasting bandwidth on a ridiculous claim and TL already told you last night that your "argument was going nowhere." I would think that you would respect the host's wishes and move on to something less tiresome and perhaps more pertinent.

    Newport posted:
    I think you will get the evidence you seek (without any hearsay problems) when the witnesses take the stand. The FA is going to have to testify about all these appointments leading up to the Duke party. The rape shield laws exclude this type of information.
    I meant if the defense attorneys could have shown Himan's delayed interview with Mr. Johnson prevented evidence of an act showing possible causation of the v*ginal swelling from being included in the probable cause affidavit, they could have avoided pretending Johnson's statement says what it does not. Judges don't like that.

    I meant if the defense attorneys could have shown Himan's delayed interview with Mr. Johnson prevented evidence of an act showing possible causation of the v*ginal swelling from being included in the probable cause affidavit, they could have avoided pretending Johnson's statement says what it does not. Judges don't like that.
    Huh?? Does this make any sense? Have you been smokin some of those blunts?

    IMHO:
    A statement that what she did with or for these clients could result in "diffuse vaginal swelling" would be useful.
    Yes, but would it be NECESSARY? She was working as an outcall escort. These were her clients. I believe the judge is allowed to infer that she performed her job as one would reasonably expect her to do.

    Newport posted:
    IMHO,
    You are wasting bandwidth on a ridiculous claim and TL already told you last night that your "argument was going nowhere." I would think that you would respect the host's wishes and move on to something less tiresome and perhaps more pertinent.
    I'm not talking to myself: Posted by wumhenry June 13, 2006 08:43 AM IMHO wrote: With whom did she have Posted by wumhenry June 13, 2006 09:54 AM Johnson's statement mentions one man. Posted by wumhenry June 13, 2006 09:57 AM dammit, I'm doing it over. IMHO wrote: Posted by GUNSHY June 13, 2006 10:17 AM IMHO posted: On the last page of Jarriel Johnson' Posted by ding7777 June 13, 2006 10:42 AM to inmyhumbleopinion Investigator Hinman could not possibly Posted by january June 13, 2006 11:46 AM From IMHO The defense is claiming Investigator Posted by wumhenry June 13, 2006 12:11 PM IMHO is focussing on Posted by ding7777 June 13, 2006 12:21 PM to inmyhumbleopinion Seligmann's lawyers say in the Posted by thinkandtype June 13, 2006 12:51 PM from the defense motion, via imho, Had investigator Hinman bothered to Posted by thinkandtype June 13, 2006 12:54 PM To clarify, I don't think Johnson's Posted by thinkandtype June 13, 2006 01:01 PM imho, I think that's the point. HAD an Posted by SomewhatChunky June 13, 2006 01:14 PM IMHO, How many times do you have to make Posted by wumhenry June 13, 2006 01:21 PM The problem is what they are stating Posted by mik June 13, 2006 01:24 PM wumhenry: Fer crissakes. What IS Posted by thinkandtype June 13, 2006 01:34 PM Yes, that is their point, but the Posted by Newport June 13, 2006 01:51 PM IMHO wrote: Posted by Newport June 13, 2006 02:06 PM I meant if the defense attorneys Posted by mik June 13, 2006 02:14 PM IMHO: A statement that

    I knew it!! IMHO has been tokin on the Philly blunts! Woohoo

    Since the two documents they did reference as support for this claim do not state what they claim, if they had them, why wouldn't they include the documents that do support their claims?
    Could they be audio tapes? Could they contain other information the defense isn't quite willing to reveal? Could the omission of the full 1200 pages of discovery attached to one motion be acceptable, given the larger points they're arguing? If we're going to nitpick semantics for the unstated, why not nitpick motions for the possibly-there-but-unattached? It's at least as likely as Mr. Johnson's crossword scenario. TL or a lawyer in the group could likely answer better than I could about protocol for exhibits attached to a motion. For that matter, if legal minds feel like weighing in, could a judge grant the motion if he finds any of their arguments credible? Can he compromise, or is this an all-or-nothing scenario?

    mik posted:
    Yes, but would it be NECESSARY? She was working as an outcall escort. These were her clients. I believe the judge is allowed to infer that she performed her job as one would reasonably expect her to do.
    If the defense attorneys had written "one can infer she is doing things on these dates that could result in v*ginal swelling" that would be true. What they did write:
    Had investigator Hinman bothered to interview Jarriel Johnson at the time [March 21, when the accuser was at the Durham Police Station accompanied by Johnson, but only the accuser was interviewed] ( a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. See Statement of Investigator Hinman summarizing [redacted] statement to him on March 21, 2006, pp. 16 of the attached Exhibits and Statement of Jarriel Johnson on April 6, 2006, pp. 17-21 of attached Ehibits.
    ...is not true. Johnson's statement does not state what the defense claims.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#81)
    by weezie on Tue Jun 13, 2006 at 01:36:09 PM EST
    Wait a sec, thinkandtype, "could they be audiotapes," is a good question. Wouldn't the judge already have the 1280 pages of discovery and anything else (including audiotapes)that the prosecution was presenting? I didn't think the judge was the last person to see anything, but what do I know.

    Weezie, the judge does not get provided with discovery. The parties provide the judge with discovery materials that they believe are pertinent to the issue at hand.

    thinkandtype posted:
    Could they be audio tapes? Could they contain other information the defense isn't quite willing to reveal?
    Do you really think the defense would hold back evidence that supports this motion? This motion being decided in their favor would be HUGE. They are trying to prevent the accuser from pointing out Seligmann as her attacker in court:
    2.c. Any proposed in-court indentification of the Defendant in that it would be the fruit of an illegal and unconstitutional search and seizure and the product of, and tainted by, the complaining witness viewing the Defendant's illegally and unconstitutionally obtained photograph;


    IMHO: So the one (and as near as I can tell only) point of contention is that the defense attorneys used the phrase "different men" when they should have said something like "separate engagements" or "jobs" or "appointments" (to use Johnson's phraseology)? Johnson's statement does say that the accuser had three "separate engagements" over the time frame specified. The accuser adds the fourth instance. For her to act in "some sexual manner" with four "appointments" or "jobs" or "engagements" is defined by her job as an outcall escort. I believe the judge is allowed to infer without the defense attorneys telling him he need to do so.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#85)
    by weezie on Tue Jun 13, 2006 at 01:52:13 PM EST
    Thank you Newport!

    I believe the judge is allowed to infer without the defense attorneys telling him he need to do so.
    Me too. They shouldn't be saying Johnson said things that he did not say. The other two lies, that concern Ms. Pittman's statement, are much more egregious than this one.

    IMHO, A motion is a request to the court to do something. You can think of it in three parts. 1) The Request, 2) The reason the court should comply, And last 3) Documentation/Fact/Evidence When the judge gets to the second part he knows that he is reading a biased argument meant to persuade. If motions were merely request with evidence the judge could be replaced with a bureaucrat. The judge is suppose to weigh the soundness of the argument. If the argument says something contrary to the evidence then it is a poor argument, not a deception. Having the motion denied because the argument is weak could be compared to a foul in basketball. If you never foul then maybe you aren't playing hard enough. Under the law a defense attorney is not suppose to be nice guy who enlightens the judge, he is there to fight for his client.

    Can we please move beyond the same arguments over and over and over...? It is obvious different posters have differences of opinion, and I don't think that either side will change. While each side may way to keep hammering away, I am personally getting tired of reading the same arguments back and forth. Can we agree to disagree on these specific points, draw a truce, and then see if there is anything else to discuss and learn? Surely I am not the only one who feels this way - am I?

    You're not.

    Thank you, everyone, for letting my "slip" show. I'd blame it on Alberto, but it was simple carelessness on my part. Been a day of that for me, so thanks again for letting it pass.

    Funny thing is, Sharon, I think TL has "slipped" as well - I think she mistakenly missed [redacted]'s name in your comment. I hope no one now claims TL is a lier because she said she'll delete [redacted]'s name if it's mentioned here, but clearly hasn't done so in your case. Although, for some weird reason I kinda like referring to the AV as "[redacted]"...

    imho: I've been enjoying your arguments. Any idea when the motion will be argued? Thanks.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#93)
    by wumhenry on Tue Jun 13, 2006 at 02:47:18 PM EST
    Never infer from the fact that I've posted multiple rebuttal messages that the argument I'm disputing is worth a tinker's dam. Many's the time I've gotten ensnarled in Sisyphaean wrangling in a BBS over the validity of a patently silly contention. I hate it when that happens! ;)

    What can I say, wumhenry? I read and weighed each argument and found IMHO's points legally more compelling.

    Wumhenry, I like that word, "Sisyphaen," kind of like "tilting at windmills," huh. I'll have to add that one to my vocabulary, thanks, I learned something today.

    Is Blakely really IMHO? Could someone please check.

    Thanks blakely.
    Any idea when the motion will be argued? Thanks.
    No idea.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#98)
    by wumhenry on Tue Jun 13, 2006 at 03:09:26 PM EST
    What can I say, wumhenry? I read and weighed each argument and found IMHO's points legally more compelling.
    Blowing your brains out may be in order, but, right, no need to say anything.

    The defense lawyers release selected material and make a motion which looks to obliterate the prosecution case, unless Nifong has something up his sleeve. The AV supporters' response is "The Defense lawyers LIED about one small portion". I guess the stuff they released really shook up the pro-AV people if instead of proving the rape they are reduced to attacking the ethics of lawyers.

    Newport posted:
    Is Blakely really IMHO? Could someone please check.
    I thought blakely's comments would bug you. ;)

    wumhenry posted:
    Blowing your brains out may be in order, but, right, no need to say anything
    blakely, don't mind wumhenry, this isn't the ugliest thing wum has said here, not by far.

    Newport: You left your manners and brain at home. Could you please check?

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#103)
    by wumhenry on Tue Jun 13, 2006 at 03:18:10 PM EST
    I like that word, "Sisyphaen," kind of like "tilting at windmills," huh.
    Both are metaphors for futile effort, but there's a subtle difference in meaning. A Sisyphaean chore, in the strictest sense, is compulsory, futile, and never-ending. Tilting at windmills is a delusional attempt to solve a non-existent problem and doesn't necessarily involve a prolonged effort. -wumhenry the pedant

    InnocentBystander posted:
    Having the motion denied because the argument is weak could be compared to a foul in basketball. If you never foul then maybe you aren't playing hard enough. Under the law a defense attorney is not suppose to be nice guy who enlightens the judge, he is there to fight for his client.
    So you agree they would not hold back evidence that supports their motion?

    statistics101 wrote:
    Surely I am not the only one who feels this way - am I?
    Nope. But evidently Judges are idiots and have no common sense so if the ruling is in favor of the defense it will be because the defense lied about an inference they suggested to the Court. Of course, there as absolutely nothing else in the motion that supports the defense's point that the probable cause affidavit excluded pertinent information that would have allowed the Judge to make a more informed ruling. Can you imagine what the discussion would be if officer Hinman has moustache? Cats living with dogs...mass hysteria!!!

    Posted by wumhenry June 13, 2006 04:09 PM Blowing your brains out may be in order, but, right, no need to say anything.
    Unlike you, at least I have brains to blow out. Nevertheless, thanks for the warm welcome. :)

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#107)
    by wumhenry on Tue Jun 13, 2006 at 03:27:40 PM EST
    I guess the stuff they released really shook up the pro-AV people if instead of proving the rape they are reduced to attacking the ethics of lawyers.
    Excellent point, rogan1313. The fact of the matter is that the material the defense lawyers released shoots all kinds of holes in the showing that Nifong used to get a court order. Whether the minor inaccuracies that have completely absorbed IMHO's attention are lies, as he contends, or merely inadvertent has no bearing at all on the defendants' guilt or innocence.

    TL and others, I wonder why the defense has not yet filed a motion to suppress the photo id's. That seems to me to be the strongest dispositive motion to be filed. It will obviously take some work, not a quickie like the recent motion, but they are no doubt going to file it soon. I suspect they are waiting for discovery to understand the full scope of ALL the attempts at obtaining an ID and description of these alleged to be involved. In the article re Professor Coleman requesting a special prosecutor, he states that it was the photographic ID that caused him the most concern in this case. I really don't understand the motivation of the Durham PD not to include fillers in the photo lineup to challenge the accuser's credibility. I understand Nifong's motivations, but I do not understand what the Durham PD and especially this Himan has to not perform proper police work. Wasn't Himan the investigator they sent after the poor cabbie. The police department doesn't answer to the DA as far as I know, but it sure seems like they do in this case.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#109)
    by wumhenry on Tue Jun 13, 2006 at 03:38:53 PM EST
    blakely, don't mind wumhenry, this isn't the ugliest thing wum has said here, not by far.
    IMHO still shudders when recalling that I had the temerity to ask how likely it is that a prostitute would be "reduced to hysteria by shame and guilt" if "dicked" (as I indelicately put it) without her consent. Oh, the horror, the horror!

    Posted by wumhenry June 13, 2006 04:38 PM
    IMHO still shudders when recalling that I had the temerity to ask how likely it is that a prostitute would be "reduced to hysteria by shame and guilt" if "dicked" (as I indelicately put it) without her consent. Oh, the horror, the horror!
    Well, you do seem to go out of your way to insult people.

    Can you imagine what the discussion would be if officer Hinman has moustache? Cats living with dogs...mass hysteria!!!
    Funny Kaldoggie and I'll bet Himan does have a moustache. You actually made me think you something that has been bothering me about this case: How did the FA come to pick Evans? You know, the guy who just happened to have a mixture of his DNA on one of her fake fingernails? I mean she only had a one in 40 or maybe one in 38 chance of picking Evans in this perverse lottery system the Durham PD calls a photographic identification. Yeah, I know the DNA was a mixture and it could have been transfered from the trash, and it didn't match him, etc., BUT how did the FA know that? Was it sheer luck for Nifong that she picked Evans or was there something more involved. I don't want to believe that the police hinted somehow to pick Evans out of the lineup but how else do we explain her picking the one guy that they had "some" evidence on, no matter how weak. This is a very troubling question for me.

    Newport posted:
    I don't want to believe that the police hinted somehow to pick Evans out of the lineup but how else do we explain her picking the one guy that they had "some" evidence on, no matter how weak. This is a very troubling question for me.
    There's always the selectively used Occam's razor principle: She identified him as the guy she scratched because he is the guy she scratched.

    Then why couldn't she identify him weeks prior when the event was more fresh in her memory and why did she say he had a moustache? And why did she stare at his photo for 43 seconds before stating that this looks like the guy except he had a moustache? What you say is of course, possible, which is why I raised the issue as something I find troubling.

    The evidence does NOT show that is his DNA on the fingernail. They only had partial markers and they couldn't rule him out. Big Big difference. He also lived there and could have put it in the trash or picked it out of the trash. At the beginning, he was very cooperative with the police. It seems to me that the DNA (or lack thereof) in this case is a huge plus for the defense. If her story was true, DNA should have been easy to find. It's not 1/40 when you are picking 3. It's 3 out of 40. If you are influenced or know more (he lived there) the odds go up. I also have read that the party had shrunk by this time. If there were only 20 or so players left, you'd thik she might know a few - she was there. That changes the odds as well. I'd like to know more about the other photo lineups as well. The violations of Durham Police procedure, possible multiple lineups, the Duke Players only lineups, and the fact that the photos wre widely available in the area before all of these lineups are troubling as well. Plenty of time for coaching, if not by investigators, perhaps by others. Coaching does not have to be overt or even intentional to be effective. She was "90% sure on Evans, but thought he had a moustache, which she did not. Could she have been influenced at that point? They had someone who knew the facts of the case doing the lineup - a big no-no. A big problem is it is hard to be wrong when there are no wrong answers.

    The evidence does NOT show that is his DNA on the fingernail. They only had partial markers and they couldn't rule him out. Big Big difference.
    I understand this and stated as much.
    He also lived there and could have put it in the trash or picked it out of the trash. At the beginning, he was very cooperative with the police.
    It seems to me that the DNA (or lack thereof) in this case is a huge plus for the defense. If her story was true, DNA should have been easy to find.
    Absolutely agree. It should have been everywhere to the point where Barney Fife could have found it.
    It's not 1/40 when you are picking 3. It's 3 out of 40. If you are influenced or know more (he lived there) the odds go up. I also have read that the party had shrunk by this time. If there were only 20 or so players left, you'd thik she might know a few - she was there. That changes the odds as well.
    I don't know if this is right statistically. I am an engineer by training but I did not take statistics. I would think, however, that if 40 players were presented for identification and then 2 were removed leaving 38 behind that she would have a 1 in 38 chance of picking Evans randomly. It is a small difference and I am not confident in the math. I do know that I find it troubling that she "HIT" on such a small percentage. Maybe she would be good in Vegas, who knows. I understand this as well.

    I also have read that the party had shrunk by this time. If there were only 20 or so players left, you'd thik she might know a few - she was there. That changes the odds as well.
    This is another good point assuming that she actually remembers any faces at all. I suppose that if the three captains were introduced to her and paid her that she might have some recollection of the three and when it got down to the last person to be picked that she picked 1 out of 3 that she remembered. That is indeed possible. I'll bet those 3 were sweating bullets. My assumption in this has always been that she didn't really remember anyone and it was a truly random picking. You may be right, however.

    I thought she picked all 3 at the same time. If so, two were never removed. Nifong choose to charge them at different times. Hence the 3 ot of 40. Don't forget, it not his DNA - it's consistent with him. That increases the odds as well, i.e. it could have come from someone not even at the party who had contact with the nails at a different time and place). I don't know if it can get there by other means -- say she shakes hands with someone, then later puts on her nails. It seems like there wasn't much there. If you're not a stats person, if this goes to trial and you follow the trial, I'm sure you will be by the time it's over :)

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#118)
    by james on Tue Jun 13, 2006 at 04:44:29 PM EST
    I don't know if this is right statistically. I am an engineer by training but I did not take statistics. I would think, however, that if 40 players were presented for identification and then 2 were removed leaving 38 behind that she would have a 1 in 38 chance of picking Evans randomly. It is a small difference and I am not confident in the math. I do know that I find it troubling that she "HIT" on such a small percentage. Maybe she would be good in Vegas, who knows.
    Unfortunately your sample size (40) is not appropriate for this case, ie, there was not a 1 in 40 chance for the first person to be selected by the FA to also have DNA on the outside surface of a fingernail. Yes, shock, the defence will not be playing arm-chair statistics with this one. The question is how large the sample size is of those who could have used the trash can at the time the fingernail was placed in there. The sample size is DEFINATELY NOT 40 as the party had died down a bit by the time the nails would have been recovered. Just pointing out the we shouldn't be engaging in ceterus paribus stastics (holding all else constant/etc). A more correct way to look at this is the odds that 1 of the 3 residents of the house (which evans was) were selected from a sample size that you would determine by the 'timing' of the type of garbage (they love to sift for timelines). I would imagine it was probably after the party, perhaps twice the number of residents had access or whatever. How about this: statistics in this case is relevant only if you believe she picked the men at random. If she is a FA she would pick the people who pissed her off the most - she'd remember their faces relatively well. If she was just 'throwing darts' you'd have to bring in a behavioral psychologist/statistician to determine the odds that the three were selected because they were distinctive in the sample shown (physical features) that led to an increased chance of them being picked randomly. I.e. in a sample size of 40 not all 40 have an equal weight in this case. She could have been upset by them (or raped by them, I'll acknowledge the possibility), she could have been paid by them, or she could have noticed their prominent features (seligman, evans) Finnerty was probably just a jerk she remembered. Or the scrawny annoying white kid:) Interestingly, my problem with the Seligman ID has to do with the picture they used in the lineup and his actual appearance that night. HE LOOKS MUCH DIFFERENT. His face does not look like that of the lineup photo - on the ATM cam, eg, he looks overweight and much less distinctive. So...they may have also picked the wrong pictures to use if they used the Duke photo book they made the crimestoppers deal out of. TL, I was not aware the Grand Jury issued any subpoenas. It's my understanding they issued none? Could you clarify that a bit, please.

    blockquote>Yes, shock, the defence will not be playing arm-chair statistics with this one. The question is how large the sample size is of those who could have used the trash can at the time the fingernail was placed in there. The sample size is DEFINATELY NOT 40 as the party had died down a bit by the time the nails would have been recovered. You are assuming that the only way the DNA got on the nail was transfer from the trash in the trash can. I don't want to assume this at this point. IMHO has pointed out that the FA may have actually scratched Evans and this perspective should be given its due. At this point, I want to assume that any of the people at that party could have caused the DNA material to be deposited on the FA. It is not fair to limit it to those who used the trash can because then you assume too much.

    Were the IDs (in their many iterations) just from the team photos? Isn't part of what the latest motion asking for is the removal from consideration both DNA and shirtless photos (and any subsequent evidence obtained from those sources)? I seem to recall that early on in the discussion of identification the AV fingered someone b/c he displayed scratches on his shirtless torso. (Never mind that scratches that lasted weeks later would likely have left a little more supporting DNA evidence on site). If she's had the chance to look at the team shirtless, through a photo lineup, wouldn't her in-court testimony be more compelling? Like, "oh Finnerty, I know it was him b/c he's very freckled" or something. But if a case could be made that this knowledge was gained through a lineup using improperly gained photos, and not through participation in an assault, how could the defense rebut what would (on the surface) seem to be compelling testimony?

    Some other good points about the sample size James. I always assumed a random picking. As you point out, that is probably not what happened here. In any event, it is still the hardest part of the defense case for me to swallow. Yeah, of course, it's not enough to convict, not even close, but I want them to show their total innocence to the public so that they can get their reputations back.

    You know, the more I think about it, even if the sample size was small because of behaviorial issues (who pissed her off, etc.) and facial issues (who had a big chin, freckles, etc.) there still had to be a substantial, i.e., 10 or more people to pick from when she was presented with photos. That she picked the one guy they happened to have some evidence against out of a small sample is still troubling to me.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#123)
    by ding7777 on Tue Jun 13, 2006 at 05:51:19 PM EST
    Kim said there were only 20 - 25 guys during the actual performance. Kim also said either 1 or 2 guys helped the AV to the car. Maybe Dave Evans was the one who helped her to the car and she remember him

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#124)
    by JK on Tue Jun 13, 2006 at 05:52:35 PM EST
    IMHO, I know I am beating a dead horse here, but I think you are misinterpreting the defense affidavit. As you know, the affidavit states:
    Had Investigator Himan bothered to interview Jarriel Johnson at that time (a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. See Statement of Investigator Himan . . . Statement of Jarriel Johnson.
    This statement does not translate to: JJ's Statement (or Himan's Statement) "contains" a statement that the AV was involved with four men. First, the statement in the defense affidavit is written hypothetically ("Had IH bothered to interview JJ") and is thus the assertion is inherently speculative, at least to a degree. Second, the affidavit states "he would have discovered sooner" not that he would have discovered immediately. That builds into the hypothetical assertion the notion that there would be investigation of the claim, not necessarily that the relevant facts would be immediately transparent on the face of JJ's written statement. Third, in legal writing, when you cite a source as direct support for a proposition, you do not use the signal "See ..." When you use "See," this means the source provides indirect support for the proposition and an inferential step is required. The conclusion that the quoted statement in the defense affidavit is a "lie" is truly a stretch.

    jk: The "lie" is that the defense used the phrase "four different men" when it should have said "different appointments," "jobs," or "engagements." See my post here and IMHO's response here.

    IMHO wrote:
    There's always the selectively used Occam's razor principle: She identified him as the guy she scratched because he is the guy she scratched.
    HA!! IMHO using Occam's Razor....this has to be some form of Oxymoron.

    jk posted:
    Had Investigator Hinman bothered to interview Jarriel Johnson at that time (a task the Durham Police Department did not accomplish until April 6, 2006), he would have discovered sooner that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. See Statement of Investigator Himan . . . Statement of Jarriel Johnson.
    The hypothetical is not WHAT would have been discovered it is WHEN it would have been discovered. at that time (a task the Durham Police Department did not accomplish until [instead of later on] April 6, 2006), he would have discovered sooner [in time to include it in his affidavit for probable cause]. The interview that was conducted April 6, 2006 did not result in the discovery that [redacted] was involved in some sexual manner with at least four different men during the weekend from March 10 through 12, 2006. It did result in the discovery that Johnson dropped her at four "different appointments," "jobs," or "engagements" as mik put it, but Johnson didn't state the accuser was involved in "some sexual manner" with at least four different men during these "appointments."

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#128)
    by weezie on Tue Jun 13, 2006 at 06:21:49 PM EST
    Holy mackerel, does that mean there might have been more than four men at the four "appointments," "jobs," or "engagements?" Could there have been whole troupes of men and/or women? No wonder Jarriel keeps that memory book. OK, just joking. I know this is not the time or place for humor. Even lame humor.

    Kali posted:
    HA!! IMHO using Occam's Razor....this has to be some form of Oxymoron
    I've noticed how it's only trotted out here when the simplest explanation benefits the defense spin. In this case it does not: The accuser identified Evans as the guy she scratched because Evans is the guy she scratched.

    IMHO posted, So you agree they would not hold back evidence that supports their motion? I am not sure where you are going with that question, but I really don't think the defense is doing anything shady or underhanded. I would defend any attorney acting shrewdly, within the confines of the law, on any client's behalf.

    ding7777 posted:
    Kim said there were only 20 - 25 guys during the actual performance.
    The captains said 41 of the 47 players were at the party. There may have been a few non-players also in attendance. Does anyone think up to half of the party-goers left before "the entertainment for the evening" arrived?

    IMHO wrote:
    The accuser identified Evans as the guy she scratched because Evans is the guy she scratched.
    I am not aware of Precious ever identifying DE as the person she scratched. I thought she just said she was only 90% sure about him, but for the famous moustache. No mention of scratching.

    InnocentBystander posted:
    IMHO posted,
    So you agree they would not hold back evidence that supports their motion?
    I am not sure where you are going with that question, but I really don't think the defense is doing anything shady or underhanded. I would defend any attorney acting shrewdly, within the confines of the law, on any client's behalf.
    Some other commenters thought perhaps the defense had documents that better supported their claims, but were holding them back for some reason. That idea seems to go against what you posted earlier:
    The judge is suppose to weigh the soundness of the argument. If the argument says something contrary to the evidence then it is a poor argument, not a deception.
    Having the motion denied because the argument is weak could be compared to a foul in basketball. If you never foul then maybe you aren't playing hard enough. Under the law a defense attorney is not suppose to be nice guy who enlightens the judge, he is there to fight for his client.


    Kalidoggie posted:
    I am not aware of Precious ever identifying DE as the person she scratched. I thought she just said she was only 90% sure about him, but for the famous moustache. No mention of scratching.
    Bachelor #1: the oral sodomizer = Seligmann Bachelor # 2: V*ginal and an*l rapist = Finnerty Bachelor # 3: by process of elimination, would have to be the strangler (the one she claims she scratched) = Evans

    Newport: you said
    I really don't understand the motivation of the Durham PD not to include fillers in the photo lineup to challenge the accuser's credibility.
    Again, I can find the link if I have to (I think) but basically it has been said that Nifong, early on or at least as soon as he learned of this case, began directing the police in their investigation of this case. The chief tending to a seriously ill wife being the alleged reason/motivation/necessity. If the defense motion re the earlier, non-positive ID's, as the AV went through the pictures of the players and evidently could not make positive ID's, is true, earlier photo arrays did not come up with suspects. It was Nifong who (and I think this is one of the earlier motions) directed the DPD to conduct the April lineup the way they did.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#136)
    by JK on Tue Jun 13, 2006 at 07:03:02 PM EST
    IMHO said:
    Johnson didn't state the accuser was involved in "some sexual manner" with at least four different men during these "appointments."
    The defense affidavit doesn't state that JJ stated that. The affiant is saying, based on the information he has seen, he believes that if Himan had interviewed JJ earlier, he would have discovered that the AV was "involved in some sexual manner" with at least four different men between March 10 and March 12. Perhaps the statement carries a hidden assumption that the officer would have performed a reasonable follow-up investigation and asked JJ and the AV exactly what happened during her appointments. But the statement in the defense affidavit does not say "JJ's written statement states that the AV was sexually involved with four men." Is it possible that a reasonable person might believe that JJ's statement indirectly supports the proposition that the AV "was sexually involved" with four different men during the relevant timeframe? I think so, if one makes the following "radical" assumptions: (a) the AV is a prostitute, (b) prostitutes are typically "sexually involved with" the persons they meet at their "appointments", (c) virtually all of a prostitute's clients are men, and (d) when, in the course of a rape investigation, a driver states that he had sex with the AV during the relevant timeframe, and then amends his story to place the encounter outside the relevant timeframe, the first statement is more likely to be true than the second statement. Add to that the "background fact," of the boyfriend's DNA, and it seems more likely than not that the DNA came from the 3 days before the examination.

    Posted by Newport June 13, 2006 06:02 PM Some other good points about the sample size James. I always assumed a random picking. As you point out, that is probably not what happened here. In any event, it is still the hardest part of the defense case for me to swallow. Yeah, of course, it's not enough to convict, not even close, but I want them to show their total innocence to the public so that they can get their reputations back. Even if they are innocence, it could never be proven; unless she had a religious experience and recanted on Oprah. And even if that happened, getting their reputations back is not remotely possible. Now they have new reputations. People do judge. Even if she recanted would you want them living next to your teenage daughter?

    imho: the party started early that afternoon, evidently. "Who was at the party?" is not the same as "Who was still there when the entertainment arrived?" And, no where in the final (I guess) photo ID lineup does the AV identify any of the three accused as being even one of the ones who choked, beat, kicked, stangled her. Just because Finnerty was one of the ones behind her does not clear him of having been the one she "scratched" in her struggle. Both he and Evans were purportedly behind her, right?

    jk, I see your point and I like your explanation, but I still see the defense as being disingeuous in their presentation of what was discovered from Johnson's untimely statement. The problem I see is the defense is not complaining about what was discovered, just that it should have been discovered sooner, but what was eventually discovered is woefully short of the claim they are making.

    SharonInJax posted:
    Just because Finnerty was one of the ones behind her does not clear him of having been the one she "scratched" in her struggle. Both he and Evans were purportedly behind her, right?
    Nifong said the accuser claimed she scratched the attacker that was strangling her. I saw a video clip of him acting it out. He was choking himself with one arm and clawing at his choking arm with the hand of his other arm. IMAGE 7 (Reade Seligmann) .... victim: He was the one that was standing in front of me... um... that made me perform oral sex on him. Sgt: What else did he do? victim: That was it. IMAGE 40 (Collin Finnerty) Victim: He is the guy who assaulted me. Sgt: What did he do? Victim: He put his p*nis in my an*s and my v*gina. (The victim's eyes were pooling with tears) Sgt: Was he the first or second one to do that? Victim: The second one. Sgt: Is he the one that strangled you or not? Victim: No.

    wum: loved the
    Both are metaphors for futile effort, but there's a subtle difference in meaning. A Sisyphaean chore, in the strictest sense, is compulsory, futile, and never-ending. Tilting at windmills is a delusional attempt to solve a non-existent problem and doesn't necessarily involve a prolonged effort. -wumhenry the pedant
    And "tilting at windmills", a la Cervantes, implies some nobility, does it not?

    But imho: the AV never does identify any of the boys/men depicted as the one who did the choking. If she has to change her story about Evans and the mustache, why not Finnerty and the choking? My point, in the major sense, was that she did not identify any of those shown her, not any of them.

    IMHO, I suppose that a defense might hold back information that would support a given motion if the information might be better used later. Playing hard is playing smart. But I still am not sure where you are going. I might agree with you.

    I would really like to know more about the AV and the "drivers," boyfriend, and Brian. And I think that if I were a Durham police investigator, I would have explored that avenue more. Whoever took it, or why, the AV did have to go back and answer to her "employer." Maybe I've seen too many crime dramas, read too many "gritty" tales, but is the idea that someone who thought he was going to be making a fair amount of money was p*ssed at the AV for coming home with nothing? Could not the beating she described at some point, and the physical damage her family saw, be the result of that? To take it another baseless jump forward: could it not be a "pimp" who has encouraged her, threatened her with worse, if she didn't make something of all of this? Her family does not, what I have seen and heard from them, seem like they are the driving force behind this.

    Kim said 20-25 guys watched the dance. but the accuser and Bissey give different numbers: Dancer gives details of ordeal
    The woman who says she was raped last week by three members of the Duke University lacrosse team thought she would be dancing for five men at a bachelor party, she said Friday. But when she arrived that night, she found herself surrounded by more than 40.
    From the same article:
    Jason Bissey, who was on his porch next door during the party, saw the victim that night. He said Friday that he wishes he had called police at the first sign something was wrong.
    He saw at least 30 men go into the white three-bedroom house, which Duke officials say is rented by three lacrosse team captains.


    rogan: You said, in part,
    then the three must PROVE THEIR INNOCENCE BEYOND A REASONABLE DOUBT then God help us all.
    Supposedly, our criminal justice system is not meant to work that way. Wiser men than I decided, early on, that asking a defendant to prove a negative, asking a defendant to prove that he or she did not do something, is not the path to justice. Much better, as a rule, to make the State prove that they DID.

    IMHO and I are the ones tilting at windmills here. She is Don Quixote defending Dulcinea and that would make me Sancho. ;)

    InnocentBystander
    But I still am not sure where you are going. I might agree with you.
    I think if they had a statement from Mr. Johnson that better supported their claims than the one they referenced in their motion, they would not hold back that better statement.

    SharonInJax posted:
    But imho: the AV never does identify any of the boys/men depicted as the one who did the choking.
    That's why I said "by process of elimination" Evans would be the strangler that the accuser scratched. SharonInJax posted:
    If she has to change her story about Evans and the mustache, why not Finnerty and the choking?
    We don't know if Evans had a mustache that night or not. Have they released those photos they claim they have? No. SharonInJax posted:
    My point, in the major sense, was that she did not identify any of those shown her, not any of them.
    huh?

    Sharon wrote:
    It was Nifong who (and I think this is one of the earlier motions) directed the DPD to conduct the April lineup the way they did.
    That may be true and I would think that a DA or U.S. attorney would advise the police during the collection of evidence and during the ID process, but I think the police probably had many other opportunities to test the accuser's credibility re identification. Perhaps some of the earlier photo arrays. I doubt Nifong gave them a directive to violate department policy re the addition of fillers. The police should have some level of authority to do their job to investigate a crime without a DA telling them what to do. Himan and other members of the DPD should have protested Nifong's heavy handed tactics with the lineup and memorialized that they thought it was wrong and could jeopardize the case. They should have done that to cover their own asses if for no other reason. Now, Himan sees his name splashed all over as the idiot who conducted the photo lineup and the idiot who didn't do a proper investigative job before applying for a warrant.

    IMHO wrote:
    We don't know if Evans had a mustache that night or not. Have they released those photos they claim they have? No.
    Another ridiculous comment. Do you think his attorney would go on national tv and state that he photographs of Evans the day of the party with no mustache and not really have the photos. You live in a strange world IMHO.

    InnocentBystander posted:
    Even if they are innocence, it could never be proven; unless she had a religious experience and recanted on Oprah. And even if that happened, getting their reputations back is not remotely possible. Now they have new reputations. People do judge. Even if she recanted would you want them living next to your teenage daughter?
    No, because I now have good reason to believe if my teenage daughter were raped in the vicinity these guys would not help find the perpetrator. They would be more likely to put their own preservation over the concerns of my raped daughter.

    Even if they are innocence, it could never be proven; unless she had a religious experience and recanted on Oprah. And even if that happened, getting their reputations back is not remotely possible. Now they have new reputations. People do judge. Even if she recanted would you want them living next to your teenage daughter?
    Yes, because they would be innocent men who were prayed upon by a false rape accuser. I would trust them as I would any other person.

    Newport posted:
    Another ridiculous comment. Do you think his attorney would go on national tv and state that he photographs of Evans the day of the party with no mustache and not really have the photos.
    I didn't say he didn't have them, I said they haven't released them. I'd like to see what Cheshire considers "no mustache." Kalidoggie considers this not a mustache. I think if jurors saw a similar photo of David Evans taken the night of the party they might conclude the accuser could consider that Evans had a mustache.

    I don't think that's a mustache either. I looks like about 4 days growth, like a Don Johnson "Sonny Crocket" look. Mustache would take 2 weeks minimum to grow to be a real mustache.

    Excellent, innocent. But is the AV Dulcinea or Aldonza?

    Redact that to say: "She did not identify any of them as being the one who choked her." That was the point we were discussing was it not?

    Newport posted:
    I don't think that's a mustache either. I looks like about 4 days growth, like a Don Johnson "Sonny Crocket" look. Mustache would take 2 weeks minimum to grow to be a real mustache.
    Thanks. That's all I'm saying. Cheshire's "no mustache" photo of Evans may have up to ten days more growth than in that photo before you would consider it a mustache. Other reasonable people might think it becomes a mustache sooner than that. I just want to see what Cheshire considers "no mustache." A jury may not agree with him.

    Newport: I'll try to find something to back up my memory, but I am sure that something was said that it was Nifong who wanted the April ID session done the way it was. I'm thinking a supporting affidavit on one of the earlier motions. I will keep looking for it, for my own peace of mind if nothing else.

    If Cheshire produces a photo of Evans with any more growth than in that photo you just posted he's screwed as far as I'm concerned. That photo better be clean shaven or no more than a couple days growth or he will lose all credibility. I just was trying to be funny with my reference to a "real mustache" like the one you can wax and twirl.

    It was reported on Hannity tonight that there will be no deep throat from the LAX team. All players have been deposed and tell the same story.

    jk, I enjoyed your explanation of the motion. Well-done.

    Newport: Second to a prosecutor wanting a judge mad at him, is a police officer who is, when you need his cooperative testimony to sustain your case. Nifong is doing a disservice to everyone, especially those who are supposed to be on his "team." I think he has hung his victim (HV, or NV, instead of AV?) out to dry by not making some response to the defense motions. I think he has hung his cops out there the same way. imho, Lora, PB, Durga, az, et al: I can understand your championing of the AV. Other than that one interview with the N&O, she has not spoken. One of us could sit down with her and believe her. But how, then, can you defend Nifong's behavior, conduct, speaking, and the lack thereof since the election? If he has half the faith in her that all of you have shown on this board, he should do something, say something, NOW. Name one pro-active thing Nifong has done since the indictments were handed down, since he won (narrowly) the democratic primary.

    Sharon: It was Roberts who was choking the AV. As a side issue, will my mom be able to fly out of Tampa tomorrow? I hear Alberto is moving across the state.

    SharonInjax posted:
    Redact that to say: "She did not identify any of them as being the one who choked her."
    That was the point we were discussing was it not?
    I didn't mean to be rude with my "huh?" I just didn't follow what you meant. Sgt. Gottlieb asked the accuser if Seligmann did anything else [No] and he asked her if Finnerty strangled her [No], but he didn't ask her if Evans did anything else other than assault her, he didn't even ask her how he assaulted her. That's why I said "by process of elimination", that makes Evans the strangler - the one the accuser claims she scratched and coincidentally (OR NOT) the only player of 46 who could not be excluded as the source of the DNA found on, possibly UNDER, the fingernail.

    imho: I apologize in advance if this is an improper question, but you speak of your daughter, and how you would feel if she were raped. But do you have a son? If so, have you asked yourself how you would feel if he had been wrongly accused of rape, and particularly the rape charged in this case? If you don't have a son, how about a brother, or father, or husband? Would you want any male in your life to have to go through what the accused are going through, based on the AV's accusations, and damnall little more?

    Oh no, not back to the argument that not shaving for a few, whatever number, of days would give a man the appearance of having a "mustache" as opposed to a "hairy face" or "beard" or something. Evans had an X day growth only on his lip? No way, no credible way.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#168)
    by wumhenry on Tue Jun 13, 2006 at 09:22:35 PM EST
    IMHO wrote:
    There's always the selectively used Occam's razor principle: She identified him as the guy she scratched because he is the guy she scratched.
    Occam's razor doesn't cut any mustard when witnesses contradict each other. She might have scratched him even if she wasn't raped. In which case, if she's a shrewd liar (when sober), she might have named him because she remembered that they swabbed underneath her fingernails for DNA traces and therefore figured that picking him would be the best bet for getting a DNA match.

    Bob: All is calm up here in Jax, so Tampa should be good to go. Weird storm: most of the high winds and rain were ahead of it, not around it. Any grounding issues should be well past Tampa/St. Pete by now.

    All I can say is that Nifong is a smug, stubborn man. I never will forget him laughing in court when Seligman's attorney said Seligman had an alibi. That level of unprofessionalism would never be allowed in federal court. A federal judge would admonish him once to keep his facial expressions to himself, and if he did it again the marshals would take him away. Nifong probably thinks he's smarter than everyone else and that he will prevail in the end. I almost threw up when I heard him repeatedly state on Greta that "he wouldn't want to try the case against him[self] either." What an overconfident ass.

    Newport posted:
    If Cheshire produces a photo of Evans with any more growth than in that photo you just posted he's screwed as far as I'm concerned. That photo better be clean shaven or no more than a couple days growth or he will lose all credibility. I just was trying to be funny with my reference to a "real mustache" like the one you can wax and twirl.
    I agree with you, but Kalidoggie was serious when he said he did not consider that a mustache - which it is not to some people and is to others. I'm just not believing the "no mustache" claim on Cheshire's word alone. I want to see what he considers "no mustache."

    Still, imho, would not a reasonable person, when it is clear that the police officer/investigator, is wondering which one choked her, the AV might have mentioned that little detail, even though it is NOT one of the charges. Beat this horse before, but here I go again, the poor dead thing: why were none of the three charged with anything other than sexually related offenses? Why were none of the three charged with the "simple" or "aggravated" battery charges for the choking/strangling/kicking/beating?

    What an overconfident ass.
    My sentiments exactly, Newport. And the "I don't blame him, I wouldn't want to try this case against me either." Loose quote from Nifong about the recusal motion. I am not a criminal attorney; I am not a litigator; I do not have a lot of courtroom experience. But I would LOVE to try this case.

    I agree with you, but Kalidoggie was serious when he said he did not consider that a mustache - which it is not to some people and is to others.
    It's really more like a piss-poor goatee, isn't it Kalidoggie?

    A first year law student could win this case. This is a defense attorney's dream job, they don't come any better.

    Yeah Sharon, and why wasn't anybody charged with robbing her of her money and shoe. I wonder where that went, it was never recovered as far as I can tell. Why wasn't Robert's charged with rape, why wasn't the FA charged with prostitution and drunk in public, and why wasn't Johnson charged with pimpin? These are all legitimate questions for the great Nifong.

    Newport: Meant to post before, but you mentioned the clogged courts of the Durham criminal justice system. Another noise complaint against a Duke lacrosse player was heard in open court a few days ago, and dismissed. Evans, I think, is still charged for a similar violation, despite the dismassal of the charges against another guy charged for the same offense at the same place at the same time. The other guy's case was dismissed by a very po-ed sounding judge for the State bringing the case before him. But the prosecutor's office has said that despite that, they are going forward with the charges against Evans. What a cesspool.

    IMHO Posted Kalidoggie posted: I am not aware of Precious ever identifying DE as the person she scratched. I thought she just said she was only 90% sure about him, but for the famous moustache. No mention of scratching. Bachelor #1: the oral sodomizer = Seligmann Bachelor # 2: V*ginal and an*l rapist = Finnerty Bachelor # 3: by process of elimination, would have to be the strangler (the one she claims she scratched) = Evans From the photo event IMAGE 40 (Collin Finnerty) Victim: He is the guy who assaulted me. Sgt: What did he do? Victim: He put his p*nis in my an*s and my v*gina. (The victim's eyes were pooling with tears) Sgt: Was he the first or second one to do that? Victim: The second one. Sgt: Is he the one that strangled you or not? Victim: No. According to the AV statement, Finnerty was the second one to rape her A*al and V*ginal. Why would the tears come out for the second guy and not the first? And I do find it interesting she said Finnerty was the GUY (single) who assulted her, when she stated he was the second.

    SharonInJax posted:
    imho: I apologize in advance if this is an improper question, but you speak of your daughter, and how you would feel if she were raped.
    I don't have a daughter, I was talking about the daughter in InnocentBystander's hypothetical:
    Even if she recanted would you want them living next to your teenage daughter.
    SharonInJax posted:
    But do you have a son? If so, have you asked yourself how you would feel if he had been wrongly accused of rape, and particularly the rape charged in this case?
    If you don't have a son, how about a brother, or father, or husband? Would you want any male in your life to have to go through what the accused are going through, based on the AV's accusations, and damnall little more?
    I am one of those stupid people that would cooperate with a police investigation. I don't believe ANY of the players would be in a worse position than they are now had they done so. I would guess they will eventually clear their names pertaining to the sexual assault charges. The reputations they have earned will be harder to repair.

    Newport posted:
    It was reported on Hannity tonight that there will be no deep throat from the LAX team. All players have been deposed and tell the same story.
    If a player had "turned" he still would show up to be deposed by the defense attorneys or else his cover would be blown. He can explain his false depostion to the jury - they can buy it or not.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#181)
    by wumhenry on Tue Jun 13, 2006 at 10:04:28 PM EST
    I don't believe ANY of the players would be in a worse position than they are now had they done so.
    Because Nifong & co. have demonstrated that they can always be trusted to be scrupulously fair and aboveboard? LOL

    SharonInJax posted:
    Still, imho, would not a reasonable person, when it is clear that the police officer/investigator, is wondering which one choked her, the AV might have mentioned that little detail, even though it is NOT one of the charges.
    I don't know what a reasonable person would do in a situation like that. If wumhenry is right about how the accuser would not be traumatized by being "dicked" without her consent, maybe the strangulation is the most traumatic part of the assault and the hardest to think about. SharonInJax posted:
    Beat this horse before, but here I go again, the poor dead thing: why were none of the three charged with anything other than sexually related offenses? Why were none of the three charged with the "simple" or "aggravated" battery charges for the choking/strangling/kicking/beating?
    It's not too late.

    Re: Duke Lacrosse: Nifong May Have Subpoenaed Fede (none / 0) (#183)
    by wumhenry on Tue Jun 13, 2006 at 10:13:04 PM EST
    If a player had "turned" he still would show up to be deposed by the defense attorneys or else his cover would be blown. He can explain his false depostion to the jury - they can buy it or not.
    Well, let's put it this way, then: all the players who aren't secretly spying for Nifong swore under penalty of perjury that no rape occurred, as far as they can tell.

    link Newport, You asked me to name one oral rape case that did not involve a weapon. No sane person would want to run searches with key words like "sexual assault, oral, and weapon." I found an oral rape case that occurred without a weapon and because it happened in a McDonalds there is even photo evidence of the crime. If you really think it can't happen look at the pictures. If the link doesn't work, or it is not allowed. Google... "Nytimes, Mt Washington Ky oral rape."

    IMHO wrote,
    If a player had "turned" he still would show up to be deposed by the defense attorneys or else his cover would be blown. He can explain his false depostion to the jury - they can buy it or not.
    How likely is it IMHO that a "turned" player would show up for a deposition for the defense attorneys? Can you put a percentage on it? I would say the chances are somewhere above 0 percent and less than 0.5 percent. Oh, I forgot to add indecent exposure to the list of charges the great Nifong forgot to bring in this case. Officer Shelton reports the FA had no undergarments on in the Kroger parking lot. I don't think this is allowed in Mike Nifong's Durham. And, Hannity also reported that the police reports state that the FA admitted she was a bipolar/manic depressive. Those Duke boys really stepped in it when Precious came walking around that corner.

    markyb posted:
    According to the AV statement, Finnerty was the second one to rape her A*al and V*ginal. Why would the tears come out for the second guy and not the first? And I do find it interesting she said Finnerty was the GUY (single) who assulted her, when she stated he was the second.
    I recall an interview Rita Cosby had with the accuser's father where he said his daughter told him "the boys" were calling her names while she was being assaulted. Maybe Finnerty said something especially ugly. I think the father said she was called a n*gger during the sexual assault.

    How likely is it IMHO that a "turned" player would show up for a deposition for the defense attorneys? Can you put a percentage on it? I would say the chances are somewhere above 0 percent and less than 0.5 percent.
    If he didn't show up how likely is it he would be outed? 100%?

    I recall an interview Rita Cosby had with the accuser's father where he said his daughter told him "the boys" were calling her names while she was being assaulted. Maybe Finnerty said something especially ugly. I think the father said she was called a n*gger during the sexual assault.
    Right on IMHO. Yeah, the father is real credible about what happened that night. Isn't he the one who said those boys raped her with a broom handle.

    IMHO posted:
    It's not too late.
    Realistically, it probably is too late to file battery charges against anyone, if the medical reports from DUMC, as we know them, are believed to be complete. Said reports are negative regarding battery. In fact, with no an@l trauma discovered, the charges that remain anywhere near remotely provable are rape (CF and DE), sexual offense (RS) and kidnapping (CF and DE and RS).

    If he didn't show up how likely is it he would be outed? 100%?
    Exactly. That is why the fact that all players did show up means none will testify that a rape could have occurred. They all told the same story and they have told that same story since day one. No one raped that girl in that house or anywhere else for that matter.

    Newport posted:
    And, Hannity also reported that the police reports state that the FA admitted she was a bipolar/manic depressive.
    Bipolar disorder can present with "psychotic features."

    InnocentBystander:
    StrawMan........I was not refering to that statement. You switched the argument. Newport said to name one case of oral rape that did not involve a weapon such as a gun or a knife and I did it. People say, "Name one. Just name one." and even if you do they won't admit it.
    Where is the rape you are referring to. No one was charged, plead guilty, or was convicted of rape in the McDonald's case. Just name one.

    imho: you said
    It's not too late.
    But Nifong has said, publicly, that he sees no more charges. And, charging anything like that now, this late? Makes no sense.

    InnocentBystander:
    StrawMan........I was not refering to that statement. You switched the argument. Newport said to name one case of oral rape that did not involve a weapon such as a gun or a knife and I did it. People say, "Name one. Just name one." and even if you do they won't admit it.
    Where is the rape you are referring to? No one was charged, plead guilty, or was convicted of rape in the McDonald's case. Just name one.

    And, imho, about this that you said:
    I am one of those stupid people that would cooperate with a police investigation.
    Please, it seems that you do not hold them/us in anything close to high esteem, but please believe this: If you are ever unfortunate enough to be caught up in a criminal matter, no matter how innocent you believe you are, DO NOT speak to the police or someone from a prosecutor's office without having an attorney with you. You are not "stupid," clearly. But don't persist in believing that "being honest" with police is a good thing if there is even the slightest chance that you could change from a cooperative witness to a suspect. For example: If I were Bissey, or Bissey's attorney, I would probably advise him to tell all he knows about that night. Maybe. Because he is clearly out of the searchlight. But Nifong made it clear, early on (no, not before the players cancelled the group grope interview, but shortly thereafter) that even if they weren't involved in the rape, everyone at that party was under suspicion for at least hindering prosecution. There is a reason why the first advice a criminal defense attorney gives his or her client is: DON'T SAY ANYTHING TO THE POLICE UNLESS I AM THERE. Do you know, does anyone know, if Nifong ever met with any of the players with counsel present? Was Nifong willing to do that? And, if not, why wouldn't he? And I am sorry I misinterpreted your post. But consider my questions anyway. I have one of each, daughter and son, and I have said often enough that it colors my entire perception of this case. No easy answers.

    Noname wrote:
    Newport said to name one case of oral rape that did not involve a weapon such as a gun or a knife and I did it. People say, "Name one. Just name one." and even if you do they won't admit it. Where is the rape you are referring to. No one was charged, plead guilty, or was convicted of rape in the McDonald's case. Just name one.
    Thank you noname. I was going to respond similarly, but didn't want to inflame this person. Said person came at me last night with some bizarre comment about drama vs. real life so I didn't want to generate any more animosity. Figured Innocent was a kook.

    IMHO posted:
    I am one of those stupid people that would cooperate with a police investigation. I don't believe ANY of the players would be in a worse position than they are now had they done so.
    SharonInJax posted:
    But don't persist in believing that "being honest" with police is a good thing if there is even the slightest chance that you could change from a cooperative witness to a suspect.
    SharonInJax is absolutely dead-on right and truthful in her above post. Obviously, IMHO, you have never been the victim of a police setup. Obviously you have never actually worked on the inside directly with police officers over a long period of years. The fact that you "don't believe ANY of the players would be in a worse position" for having co√∂perated just shows that you have never personally seen what actually can happen -- sometimes -- to na√Įve people who think just like you do. You can pontificate about this all you want, IMHO, but it is obvious that you've never seen it from the inside. You don't know what everybody who has ever worked on the inside knows from long personal experience -- that there are just about as many cops and robbers among cops as anybody else. And that goes for DA's too.

    Newport - No problem. I have not kept up today, so I am a bit behind, but I wanted to keep up with that side argument.

    Back to check on the IMHO Board (46 posts in this thread so far). Just curious. I've read all of your comments. In my opinion, some good points, some not so good. But most dwell on details, attacking small things one at a time in what we see in the public domain by the defense or that seem to favor the defense. I'd expect that to be pretty easy to do, given this is a media event so far, not a trial. How about the bottom line - Do you believe the AV or not. If so, why? What are the main reasons? Or do you just want to keep the debate alive?

    I know Duke is a very liberal institution but it and its students should really count their blessings that Sean Hannity is out there and all over this case. Hannity has been the greatest advocate in the public arena for these wrongfully accused players. Their own university shamefully turned its back on them and they should all personally thank Hannity for getting the truth about this farce of a case out on the airwaves. The Hannity episode tonight was absolutely explosive in Sean's defense of the students. He even finally put to bed the urban legend that the DUMC medical report makes any findings regarding rape. Liz Weil is pathetic and it is becoming increasingly harder to believe that she ever occupied any position of consequence. I can't remember her ever saying anything that I thought made sense.

    The defense filed a motion to suppress the photo lineup weeks ago. You can read it here. Thanks to all who sent it tips, it was very generous of you and much appreciated. New thread coming soon.

    TL, funny I never read about it. The link you gave is dead on my computer, am I doing something wrong?

    Somewhat Chunky wrote,
    Just curious. I've read all of your comments. In my opinion, some good points, some not so good. But most dwell on details, attacking small things one at a time in what we see in the public domain by the defense or that seem to favor the defense. I'd expect that to be pretty easy to do, given this is a media event so far, not a trial.
    Somewhat Chunky, all legal cases rise or fall on small details, any good lawyer will tell you that. Small details that do not add up sow doubt in the minds of the triers of fact and lead them to disbelieve the bigger story being told. A recent famous example of this is the OJ Simpson case where Marsha Clark had OJ try on a glove claimed to be his that was obviously too small to fit on his hand. A small detail, yes, but one that sent the prosecutions case spiraling downward. "If the glove don't fit, you must acquit," carried the day. So, don't overlook the small details in a case, they do matter. That being said, the "discrepancies" that IMHO has attempted to point out don't rise to the level of "small details." They are more in the nature of piddling details that are more akin to typographical errors and she happens to be wrong in her interpretation of almost all of them. Her instinct is not bad, but her execution is indeed faulty.

    Newport posted:
    Noname wrote:
    [InnocentBystander wrote]: Newport said to name one case of oral rape that did not involve a weapon such as a gun or a knife and I did it.
    [InnocentBystander wrote]: People say, "Name one. Just name one." and even if you do they won't admit it.
    [Noname wrote]: Where is the rape you are referring to. No one was charged, plead guilty, or was convicted of rape in the McDonald's case. Just name one.
    Thank you noname. I was going to respond similarly, but didn't want to inflame this person. Said person came at me last night with some bizarre comment about drama vs. real life so I didn't want to generate any more animosity. Figured Innocent was a kook.
    noname asked InnocentByStander:
    Where is the rape?
    The oral rape Newport asked about was caught on video: Courier-Journal October 9, 2005
    Louise Ogborn had been in the back office for nearly 2¬Ĺ hours when the caller said she should kneel on the brick floor in front of Nix and unbuckle his pants.Ogborn cried and begged Nix to stop, she recounted in her deposition. "I said, `No! I didn't do anything wrong. This is ridiculous."
    But she said Nix told her he would hit her if she didn't sodomize him, so she did.
    Like the rest of her ordeal, it was captured on a surveillance camera, recorded on to a DVD. And it continued until Summers returned to the office to get some gift certificates, and Nix had Ogborn cover herself again.
    noname wrote to InnocentByStander:
    No one was charged, plead guilty, or was convicted of rape in the McDonald's case.
    Walter W. Nix Jr. was charged with sodomy and was set to go to trial. After a few plea deals fell through, he finally pleaded guilty to sexual abuse, sexual misconduct and unlawful imprisonment of Louise Ogborn. Courier-Journal November 3, 2005
    The Bullitt County man who claimed a hoax caller duped him into sexually humiliating a teenage McDonald's employee at the restaurant last year apologized to his victim yesterday and said he was ashamed of what he did. "I had no intention of hurting anyone," Walter W. Nix Jr., 43, said in Bullitt Circuit Court to Louise Ogborn, whom he forced to sodomize him in April 2004. Nix has said he was following the orders of the caller, who he thought was a police officer. But Judge Tom Waller refused to accept a deal in which Nix had offered to plead guilty to a reduced charge of sexual misconduct and unlawful imprisonment in exchange for a sentence of one year's probation. Waller let Nix withdraw his plea and set his trial on charges of sodomy and assault for Dec. 13.
    The Courier-Journal March 16, 2006
    Acting on the caller's orders, the manager, Donna Summers, began a strip search of Ogborn, and later called Nix, to whom she was engaged at the time, to come to the restaurant to watch Ogborn. A surveillance video showed Nix spanking Ogborn on her naked buttocks and forcing her to orally sodomize him -- acting, he said, on the orders of the caller.
    Nix, 44, pleaded guilty last month to sexual abuse, sexual misconduct and unlawful imprisonment of Louise Ogborn, who worked at the store.
    Noname asked:
    Just name one.
    InnocentByStander did.

    Newport posted:
    They are more in the nature of piddling details that are more akin to typographical errors and she happens to be wrong in her interpretation of almost all of them.
    From the defense motion:
    Investigator Himan omitted from his probable cause affidavit that in this written statement, Ms. Pittman informs the investigators that [redacted] never went back in the house. The affidavit also omitted that once [redacted] got to Ms. Pittman's automobile, she stayed there;...
    Defense motion with [typos] corrected:
    Investigator Himan omitted from his probable cause affidavit that in this written statement, Ms. Pittman [does not] inform the investigators that [redacted] never went back in the house. The affidavit also omitted that once [redacted] got to Ms. Pittman's automobile, she [did not] stay there;...
    hahahha! Yeah, typos. Osborn needs a new legal secretary. Weird how a few well placed [typos] can change the whole impact of the defense arguement.

    Newport posted:
    Liz (sic) Weil (sic) is pathetic and it is becoming increasingly harder to believe that she ever occupied any position of consequence. I can't remember her ever saying anything that I thought made sense.
    Newport, Here's a heads up: Careful or you may set back your campaign to kiss up to Talk Left. Lis Wiehl is engaged to a "pal" of Talk Left's.

    SomewhatChunky posted:
    How about the bottom line - Do you believe the AV or not. If so, why? What are the main reasons?
    Or do you just want to keep the debate alive?
    I've always stated that I do not know if the accuser is lying or the if the players [almost all through their attorneys] are lying. Most of my posts deal with correcting what I see to be misstatement of facts by the media, attorneys and other commenters. Funny that you counted my posts. Did you count how many were answers to posts directed to me? I'm not talking to myself here.

    Here's a new thread for you all. Again, thanks for your donations. Much appreciated. Newport, go to wral.com and click on their document section. The motion is there.