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Duke Lacrosse Hearings Today

There will be two hearings today in the Duke Lacrosse players' alleged rape case. One will be a hearing for the uncharged Duke lacrosse players:

Attorneys for the uncharged players want to prevent District Attorney Mike Nifong from gaining access to Duke records of the home addresses of uncharged team members and records of their use of student identity cards. The lawyers argue the information is protected by federal privacy laws.

The other is a pre-trial conference for the three charged players, but Colin Finnerty's lawyer says he doesn't anticipate much of substance to be discussed.

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    Re: Duke Lacrosse Hearings Today (none / 0) (#1)
    by Bob In Pacifica on Mon Jul 17, 2006 at 06:39:19 AM EST
    Colin or Collin?

    Re: Duke Lacrosse Hearings Today (none / 0) (#2)
    by Lora on Mon Jul 17, 2006 at 11:00:28 AM EST
    Hi all, I see lots of changes here since I was away. Sharon, thanks for your warm wishes. I scarcely thought about the case at all! Trying to catch up now. Welcome to all the newcomers. So is Nifong fishing for new suspects, then? Or just trying to fill in the pieces of the night in question?

    Re: Duke Lacrosse Hearings Today (none / 0) (#3)
    by Talkleft Visitor on Mon Jul 17, 2006 at 12:53:12 PM EST
    Nifong said none of the other players would be indicted. He said he wanted the home addresses so he could compel the players' attendance as witnesses for trial. He said he needed the key swipe info in order to establish the players comings and goings in the 24 hour period surrounding the party. He also said every single player attended the party. Nifong still lacks basic information about the party and is scrambling to find out who was there at the time of the dancing. At least this judge did not summarily deny the players' motions. However, he was a little lazy in that he had not read the motions. After all, there were a lot of motions.

    Re: Duke Lacrosse Hearings Today (none / 0) (#4)
    by Talkleft Visitor on Mon Jul 17, 2006 at 01:19:51 PM EST
    I forgot to say, Judge Titus said he would rule by no later than 9:30 on Friday. Nifong also made a gratuitous comment about defense counsel - he said some of the counsel were disappointed that their clients were not indicted. He said that they wanted to participate in such a high profile case. No defense attorney would want his or her client indicted. This is a nightmare for the Finnerty, Seligman and Evans.

    Re: Duke Lacrosse Hearings Today (none / 0) (#5)
    by Talkleft Visitor on Mon Jul 17, 2006 at 01:20:31 PM EST
    THe only thing I found interesting about the hearing was that nothing was accomplished. It was a total waste of time, and this judge is no better, and maybe worse, than the first judge. He allowed an unbelievably unprofessional attack by Nifong on the opposing lawyers to go without saying anything. I have NEVER seen a judge that would allow a lawyer to say what Nifong did without strong rebuke. Nifong said something to the effect that some lawyers in the court room today are disappointed that their clients did not get indicted so that they could soak up the media spot light. He then said he couldn't indict everyone to satisfy them. That ranks right up there with the most petty things I have ever heard a lawyer say, let alone a district attorney. The only other remotely interesting thing was that apparently there is some secret evidence that Nifong is still pursuing and that discovery in not yet complete as a result. Test results are not yet back. What is this all about, anyone? Oh yeah, the judge set no deadlines for discovery to be complete, said nothing about the production of Gottleib's yet unwritten memoirs, and refused to set any hearing dates for motions, and accepted Nifong's position that no investigation into the FA's mental background need be provided because Nifong hasn't done any. Nice judge.

    Re: Duke Lacrosse Hearings Today (none / 0) (#6)
    by january on Mon Jul 17, 2006 at 01:37:38 PM EST
    So, Newport and PatsyMac - thanks for the report on the hearing. Do you think Nifong is just trying to drag matters out with Gottlieb's missing memoirs and the mysterious missing test results or can he truly be plotting a trial by ambush? This case disturbs me so much because of the huge consequences for everybody concerned.

    Re: Duke Lacrosse Hearings Today (none / 0) (#7)
    by inmyhumbleopinion on Mon Jul 17, 2006 at 01:40:54 PM EST
    Newport posted:
    Nifong said something to the effect that some lawyers in the court room today are disappointed that their clients did not get indicted so that they could soak up the media spot light. He then said he couldn't indict everyone to satisfy them. That ranks right up there with the most petty things I have ever heard a lawyer say, let alone a district attorney.
    That made me laugh out loud. Did you see Kerry Sutton dressed all "pretty in pink" postioned right behind Nifong to ensure camera coverage? hahahaha! When the television coverage quit I went to the WRAL live feed. Immediately following the hearing, I saw Nifong and Butch Williams "yucking it up" at the defense table. They like each other. Newport posted:
    Test results are not yet back. What is this all about, anyone?
    If they still have that blood....

    Re: Duke Lacrosse Hearings Today (none / 0) (#8)
    by Talkleft Visitor on Mon Jul 17, 2006 at 01:49:45 PM EST
    I'm glad unprofessional comments from a supposed minister of justice make you laugh out loud. That says something about you.

    Re: Duke Lacrosse Hearings Today (none / 0) (#9)
    by weezie on Mon Jul 17, 2006 at 01:52:27 PM EST
    Boy, I wish I had been home to hear Nutfong accuse other attorneys of being spotlight hungry. Would his ridiculous comments ever make it into an appeal if the case goes against the accused? How could any judge allow that kind of insult?

    Re: Duke Lacrosse Hearings Today (none / 0) (#10)
    by inmyhumbleopinion on Mon Jul 17, 2006 at 01:58:02 PM EST
    Newport posted:
    I'm glad unprofessional comments from a supposed minister of justice make you laugh out loud. That says something about you.
    Did you see the WRAL feed? Butch didn't look to steamed up. I wonder what you think that says about him?

    Re: Duke Lacrosse Hearings Today (none / 0) (#11)
    by Talkleft Visitor on Mon Jul 17, 2006 at 01:58:52 PM EST
    I have now seen enough to conclude that all these Durham judges are political hacks in bed with the DA. I felt genuinely sorry for Osborn as he tried very hard to get some motions heard with no result. If anything, he was rebuked for trying to get some hearings for his client on his alibi. There will be no suppression of the evidence. There will be a trial. Mr. Duke sure picked a rotten place to build his university.

    Re: Duke Lacrosse Hearings Today (none / 0) (#12)
    by Talkleft Visitor on Mon Jul 17, 2006 at 01:59:04 PM EST
    I didn't get to see as much of the proceedings as I would've liked, but I think Osborn is seeking info on the accuser from Child Protective Services and Dept. of Social Services. Also, the case hasn't yet moved to the third setting. There's another hearing scheduled for the week of August 21. Does this mean they stay in the second setting until Nifong has produced all of his discovery to the defense? Does anyone know if any discovery was handed over to the defense attorneys today?

    Re: Duke Lacrosse Hearings Today (none / 0) (#13)
    by Talkleft Visitor on Mon Jul 17, 2006 at 02:03:03 PM EST
    Apparently, yes. The next hearing in August will be the third "second" setting. Don't look for much to happen there either. Titus is not even the trial judge so he isn't going to rule on anything. He will just pass the buck like Stephens before him.

    Re: Duke Lacrosse Hearings Today (none / 0) (#14)
    by Bob In Pacifica on Mon Jul 17, 2006 at 02:57:04 PM EST
    Even if imho thought Nifong's remark was real funny, why would she want to reveal this abour herself. Anyone with any common sense doesn't want to get indicted for rape. For Nifong to say it suggests something very wrong with him. And for imho to find it funny suggests someone who enjoys other people's discomfort. Weird.

    Re: Duke Lacrosse Hearings Today (none / 0) (#15)
    by Bob In Pacifica on Mon Jul 17, 2006 at 02:57:51 PM EST
    Anyone ask about information on the AV's phone? Or was there any mention of the 12:26 phone call?

    Re: Duke Lacrosse Hearings Today (none / 0) (#16)
    by Bob In Pacifica on Mon Jul 17, 2006 at 03:00:39 PM EST
    mik wrote: I think Osborn is seeking info on the accuser from Child Protective Services and Dept. of Social Services. I wonder if it's about her fitness as a mother (not really relevant unless her incarceration for public drunkeness might peril her custody) or to find out about 1993. Well, if the courts don't want to find out maybe we can get an investigative reporter to ask.

    Re: Duke Lacrosse Hearings Today (none / 0) (#17)
    by Talkleft Visitor on Mon Jul 17, 2006 at 03:09:37 PM EST
    BIP
    Anyone ask about information on the AV's phone? Or was there any mention of the 12:26 phone call?
    No. Bob, you have written several outstanding posts in the forums lately and I have saved several of them. I am most interested in your theory that the newspaper was able to purchase cell phone records. I would have guessed that such would be against the law. Can you provide any further information regarding cell phone records being up for sale? Wouldn't Nifong now have to go to FA to ask about the call as an ethical prosecutor? Or, could he just blow such follow-up off for fear of what it might reveal? I mean if there is anything that blows a hole in her story besides the lack of injuries consistent with rape, the false description of her alleged attackers, the alibi's, lack of DNA, and lack of corroboration of anything by Roberts, it is the 12:26 phone call and the attempt to reenter hell house at 12:30 after the rape to get her shoe.

    Re: Duke Lacrosse Hearings Today (none / 0) (#18)
    by Bob In Pacifica on Mon Jul 17, 2006 at 03:19:49 PM EST
    Newport, it's not my theory. Others have commented on it here and I could swear that I heard a mention of it during one of the NSA scandals over the last few months. I've heard it enough times that I presume it's true, but there isn't anyone's cell phone calls that I'm particularly interested in so I haven't looked into it. If it's not true, I am ready to stand corrected.

    Re: Duke Lacrosse Hearings Today (none / 0) (#19)
    by ding7777 on Mon Jul 17, 2006 at 03:42:53 PM EST
    to Bob and Newport, TalkLeft had a post about cell phone records back in January Law Enforcement Should Fear Release of Cell Phone Records

    Re: Duke Lacrosse Hearings Today (none / 0) (#20)
    by Talkleft Visitor on Mon Jul 17, 2006 at 03:53:47 PM EST
    Interesting. You can learn a thing or two on TL. So it is not the cell phone companies selling cell phone records, it is little nasty third parties that must have sophisticated snooping equipment to capture cell phone data? Is this what's going on?

    Re: Duke Lacrosse Hearings Today (none / 0) (#21)
    by Talkleft Visitor on Mon Jul 17, 2006 at 04:30:44 PM EST
    After hearing the arguments today regarding the home address and key card subpoenas, I will be shocked if Titus doesn't grant the motions to quash. The arguments of Ekstrand were particularly powerful that Nifong, in addition to not following proper procedures, had not made any showing of individualized need for the information sought so that the court could weigh the state's need for the information vs. the unindicted players' rights to privacy as expressed in federal law. Ekstrand said a hearing on this issue was necessary and Nifong had put the cart before the horse by not providing an affidavits showing a particularized need for the information. Even Titus cannot deny these motions. Surely, he will throw this small bone to the defense to make it look like there is some semblance of fairness.

    Re: Duke Lacrosse Hearings Today (none / 0) (#22)
    by Talkleft Visitor on Mon Jul 17, 2006 at 04:55:41 PM EST
    Cell phone records are purchased from company employees making extra cash. Equipment to monitor cell phnoe calls is also availabe for a price.

    Re: Duke Lacrosse Hearings Today (none / 0) (#23)
    by weezie on Mon Jul 17, 2006 at 05:14:21 PM EST
    Newport, normally anything you say about legal matters is rock solid with me but I think you have to prepare yourself to be shocked. It is as if the judges in Durham are prepared to give Nutfong every possible advantange in order not to inflame any particular local group, and in order to make the road to acquittal the hardest and longest for the accused. I think he's at least going to give Mikey the home addresses and I fear the key card info, too. After all, Nutfong has argued that those who are innocent fear no investigation, right? It's all so wonderfully "black and white" for the Durham DA. In every sense of the phrase.

    Re: Duke Lacrosse Hearings Today (none / 0) (#24)
    by Talkleft Visitor on Mon Jul 17, 2006 at 05:36:32 PM EST
    Thanks for the info Late Model. Sounds like it is catch as catch can with regard to getting cell phone info. Give them a number and they might have it and then again they might not. Dr. Weezie, I take no further position. I am disgusted with this judge for allowing Nifong to make that unprofessional remark. Nifong has quite an ego about him and he's determined to say something smart ass every chance he gets. Pretty amazing for a two bit Durham DA who spent five years in traffic tickets while recovering from cancer. That one stinks to me. Looks like a Durham judge will just let this case go second setting forever because the DA won't turn over his discovery and the judge won't make him either. The lead investigator can take months to write up his reports (meant fabricate) and tests on blood drawn on 3/14 can still be out in the middle of July. No end in sight to second settings.

    Re: Duke Lacrosse Hearings Today (none / 0) (#25)
    by Talkleft Visitor on Mon Jul 17, 2006 at 06:28:33 PM EST
    Did I hear Nifong say that (my recollection in quotes) "this is the way we handle all subpoenas for privileged material, like medical records"? By having the subpoenas returned to a judge? Would that apply to the DMC records from that night? Doesn't that make it even more unlikely that the reports had been read before the Buchanan search warrant was issued?

    Re: Duke Lacrosse Hearings Today (none / 0) (#26)
    by Talkleft Visitor on Mon Jul 17, 2006 at 06:31:52 PM EST
    I don't think Nifong has much of a chance of winning at trial. But I do think he has a good chance of winning these motions. I haven't read the briefs and I don't really know the federal law that they're arguing, but my initial impression is that the privacy interest these kids are trying to protect just isn't that strong. I mean, it would be ridiculous if the DA couldn't compel production of Kim's phone records and home address. I think the addresses and student ID records of the non-accused party attendees are pretty similar.

    Re: Duke Lacrosse Hearings Today (none / 0) (#27)
    by Talkleft Visitor on Mon Jul 17, 2006 at 06:36:58 PM EST
    They might be if he made a particularized showing of need and followed proper procedures. But he hasn't done this and instead just issued a blanket subpoena with no showing of why he needs the information for a fishing expedition.

    Re: Duke Lacrosse Hearings Today (none / 0) (#28)
    by Talkleft Visitor on Mon Jul 17, 2006 at 06:45:19 PM EST
    Sharon, you did hear that right but it obviously wasn't done in this case because Himan picked up the medical records on April 5th from the hospital when they were ready for pick up. Furthermore, if there was consent provided as some have suggested to look at the records on or around March 23, where is the consent form that FA signed? It would have to be produced wouldn't it?

    Re: Duke Lacrosse Hearings Today (none / 0) (#29)
    by inmyhumbleopinion on Mon Jul 17, 2006 at 07:39:53 PM EST
    Newport posted:
    Furthermore, if there was consent provided as some have suggested to look at the records on or around March 23, where is the consent form that FA signed? It would have to be produced wouldn't it?
    Maybe it was. Dan?

    Re: Duke Lacrosse Hearings Today (none / 0) (#30)
    by Bob In Pacifica on Mon Jul 17, 2006 at 07:42:11 PM EST
    What kind of cancer did Nifong have? Brain tumor? Maybe they scooped out something they shouldn't have. He is acting weird. That's not normal behavior. It's not even false bravado. Weird.

    Re: Duke Lacrosse Hearings Today (none / 0) (#31)
    by Bob In Pacifica on Mon Jul 17, 2006 at 07:44:54 PM EST
    I think it would be reasonable for Nifong to get home addresses of people he thinks may have been at the party, but what argument would he have for people's card usages? I remember someone saying that there was a federal issue involved with certain information. Anyone refresh me here?

    Re: Duke Lacrosse Hearings Today (none / 0) (#32)
    by Talkleft Visitor on Mon Jul 17, 2006 at 07:57:11 PM EST
    I think it would be reasonable for Nifong to get home addresses of people he thinks may have been at the party
    Why? Are they witnesses? Is he going to call them to testify? As to what? What about all the ones who weren't there? That FA didn't see? Why doesn't Nifong have to state who are the witnesses that he will call and what testimony he believes these persons will provide. Unless he can do this what good does it do to give him home addresses unless his real purpose is a fishing expedition. Once Nifong identifies his witnesses then he can get their addresses to serve a trial subpoena. This whole thing is out of order. These players have been threatened with violence and they shouldn't have to give out their families' addresses and expose them to violence without reason.

    Re: Duke Lacrosse Hearings Today (none / 0) (#33)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:04:37 PM EST
    Bob, Nifong had prostate cancer and it doesn't take five years to recover. Fishy.

    Re: Duke Lacrosse Hearings Today (none / 0) (#34)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:16:50 PM EST
    My father had prostate cancer, had a prostatectomy, and was up and around in little over a week. And he was in his 70's. His actions have been illogical all around, unless he has that smoking gun video from the bathroom (or master bedroom, or was it the living room?).

    Re: Duke Lacrosse Hearings Today (none / 0) (#35)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:16:56 PM EST
    It smells like fishing to me. If I were Judge Titus, I'd quash the subpoenas, ask the attorneys for their clients' addresses, keep them locked up somewhere, and give them to Nifong when he puts them on a witness list.

    Re: Duke Lacrosse Hearings Today (none / 0) (#36)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:19:05 PM EST
    It has to be a fishing expedition. There's just no logical, legal reason that he would need or even want them. Right Newport?

    Re: Duke Lacrosse Hearings Today (none / 0) (#37)
    by Bob In Pacifica on Mon Jul 17, 2006 at 08:25:39 PM EST
    Newport, Regarding Nifong's cancer: if Nifong has his head up his butt... never mind.

    Re: Duke Lacrosse Hearings Today (none / 0) (#38)
    by Bob In Pacifica on Mon Jul 17, 2006 at 08:27:17 PM EST
    fillin, that sounds reasonable to me. Anyone remember the federal statute invoked regarding getting this kind of information from college students?

    Re: Duke Lacrosse Hearings Today (none / 0) (#39)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:27:25 PM EST
    Bob - I saw that one coming. If he's just now awaiting results of a blood test, then he's definately still fishing for something, anything, that will support his "position".

    Re: Duke Lacrosse Hearings Today (none / 0) (#40)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:29:16 PM EST
    Right. Only reason he wants them is to conduct an investigation into who was at the party and who was doing what to whoever. He doesn't even have basic facts as to who was there yet. If he wants to talk to them he can send out the police to talk to them just like in every other investigation. The police can figure out how to find them if they really want to talk to them. That is their job. I didn't hear Nifong say a thing about wanting the information for his "investigation." He said they were all witnesses which isn't true.

    Re: Duke Lacrosse Hearings Today (none / 0) (#41)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:31:09 PM EST
    FERPA

    Re: Duke Lacrosse Hearings Today (none / 0) (#42)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:36:20 PM EST
    Poor Kirk Osborn and Reade Seligman. He can't get a hearing on his alibi until discovery by Nifong is complete and they can move into the third setting.

    Re: Duke Lacrosse Hearings Today (none / 0) (#43)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:37:26 PM EST
    Why? Are they witnesses?
    Yes, they are witnesses. Whether he calls them to testify is a different matter.
    Is he going to call them to testify? As to what? What about all the ones who weren't there? That FA didn't see?
    Nifong knows that 90%+ of the lacrosse team was at the party. But I'm not convinced he actually knows the identities of the 10% who weren't there. Getting the ID information might help the DA sort at least that much out.
    Why doesn't Nifong have to state who are the witnesses that he will call and what testimony he believes these persons will provide.
    The case isn't at that phase yet. I don't know the NC rules of criminal procedure, but my strong suspicion is that he won't have to provide that kind information until much closer to trial. Anyone know better and care to enlighten me?
    Unless he can do this what good does it do to give him home addresses unless his real purpose is a fishing expedition.
    There are ~40 potential witnesses, out of which ~90% have residences out of state and 25% just graduated from college. It's not that crazy that the DA might want to know where he can get a hold of these witnesses. (The counter argument is that they're all represented by counsel. If Nifong want's to get a hold of them he should call their lawyers.) I think he want's the addresses becasue he's still investigating, looking for anything that'll help his case.
    Once Nifong identifies his witnesses then he can get their addresses to serve a trial subpoena. This whole thing is out of order. These players have been threatened with violence and they shouldn't have to give out their families' addresses and expose them to violence without reason.
    I don't think it's really that out of order. But given the intense publicity, I hope the judge at least suppresses the public release of the addresses.

    Re: Duke Lacrosse Hearings Today (none / 0) (#44)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:40:08 PM EST
    Yes, they are witnesses. Whether he calls them to testify is a different matter.
    No they are not. They are not witnesses until it is determined that they witnessed something. That has yet to be determined.

    Re: Duke Lacrosse Hearings Today (none / 0) (#45)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:46:52 PM EST
    Under Nifong's rationale why not get the address of everyone in Durham? They might have been witnesses too. This is not how it works.

    Re: Duke Lacrosse Hearings Today (none / 0) (#46)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:50:13 PM EST
    But is that a determination for a judge to be making at this phase of a trial? If there's a burden that Nifong has to meet here, wouldn't it be something pretty negligible like reasonable suspicion or belief? He didn't put anything into his original motion, but maybe that's standard practice in Durham. I just won't be that surprised if the judge finds that Nifong met whatever minimal threshold he needed to meet.

    Re: Duke Lacrosse Hearings Today (none / 0) (#47)
    by inmyhumbleopinion on Mon Jul 17, 2006 at 08:52:28 PM EST
    Newport posted:
    Bob, Nifong had prostate cancer and it doesn't take five years to recover. Fishy.
    N & O April 10, 2006
    In 1994, Jim Hardin, Durham's district attorney at that time, made Nifong the chief assistant in the office. Five years later, Nifong was diagnosed with prostate cancer. He missed months of work for surgery, radiation and hormone therapy.
    In a 2005 interview, Nifong said that after beating back cancer, he wanted to spend more time with his family -- his wife, Cy Gurney, and his teenage son. Nifong also has an adult daughter from a previous marriage.
    At the Durham courthouse, Nifong moved to traffic court, where he began negotiating pleas with lawyers in a small office just outside a courtroom. He was there until 2005, when Hardin was appointed to a judgeship. Gov. Mike Easley appointed Nifong to fill the top job.
    Yeah, pretty fishy.

    Re: Duke Lacrosse Hearings Today (none / 0) (#48)
    by Talkleft Visitor on Mon Jul 17, 2006 at 08:55:51 PM EST
    Under Nifong's rationale why not get the address of everyone in Durham?
    I think Nifong has statements from a couple of the players saying pretty much everyone on the lacrosse team was there. I think he also has conflicting statements as to who wasn't there. Take all of that togethor and it's probably enough to get the address of everyone on the team. He's not trying to get a search warrant here - he's trying to get a mailing adress and phone number. The invasion of privacy is so minimal that it's not going to take much of a showing to get a court to grant the request.

    Re: Duke Lacrosse Hearings Today (none / 0) (#49)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:25:14 PM EST
    Anyone remember the federal statute invoked regarding getting this kind of information from college students?
    It's called the Buckley amendment, and it gives very wide privacy collection to records of educational insititutions. (It's the same law that would make it difficult for the defense to find out what courses in forensic psychology the accuser was taking, and whether the textbooks covered the expected behavior of rape vicitims, for example.) It comes in because the pass-cards are issued by Duke, and the records of their use belong to the university, and because (weirdly) Nifong has asked Duke, and not their lawyers, for the students' addresses. I'm not sure whether it really applies to this kind of information. At my own school such information, used by the campus police in an arson investigation, was turned over to the local municipal police without even being asked for by subpoena, though the case hasn't come to trial (and probably will be plea-bargained) so whether my school was within its rights in doing so has not been tested in court. I've also read that there may be some kind of exception for grand jury invesigations, but NC doesn't have investigative grand juries, only rubber stamps. Quite possibly the whole issue is theoretical, since the craven coward Brodhead may well have given Nifong everything he asked for and more the instant he asked for it, if not sooner. It is odd, since it was the university that was served with the subpoena, that it's lawyers have not been involved in the objections.

    Re: Duke Lacrosse Hearings Today (none / 0) (#50)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:28:11 PM EST
    If he's just now awaiting results of a blood test, then he's definately still fishing for something, anything, that will support his "position".
    I've also heard the rumor it may be a mitochondrial DNA test on the pubic hair, though the remark applies in that case as well. It could greatly confuse matters since it might well have been picked up in the bathroom not from Dave but from Matt or Dan or at a pinch Bret (who didn't live there but was the most frequent visitor), and we don't know whether Nifong has taken DNA samples from Precious's johns (if any of them are white).

    Re: Duke Lacrosse Hearings Today (none / 0) (#51)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:28:38 PM EST
    If there's a burden that Nifong has to meet here, wouldn't it be something pretty negligible like reasonable suspicion or belief?
    He hasn't met that burden.
    He didn't put anything into his original motion, but maybe that's standard practice in Durham
    . It's not standard practice under the FERPA law and apparently it's not standard under NC law either. Did you listen to the hearing and the arguments that pointed all this out?
    I just won't be that surprised if the judge finds that Nifong met whatever minimal threshold he needed to meet.
    Nifong has met no minimal threshold because he offered bare subpoenas. I will not be surprised if the judge denies the motions either, but for different reasons than yours, I suspect.

    Re: Duke Lacrosse Hearings Today (none / 0) (#52)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:33:44 PM EST
    Oh, I see Newport has given the initials of the relevant act.
    I don't know the NC rules of criminal procedure, but my strong suspicion is that he won't have to provide that kind information until much closer to trial. Anyone know better and care to enlighten me?
    I've read that (except for expert witnesses the list doesn't have to be turned over until jury selection begins. Meanwhile, can one of the lawyers out there enlighten me why Nifong gets to call anyone he wants as a prosecution witness, even though presumably there are many of them the defense would want to call as defense witnesses. Does the one exclude the other? If they are called as prosecution witnesses does that mean the defense can't question them about what it would like to for purposes of its case, but only cross-examine on questions raised by the prosecution. (With a judge out of the same rotten barrel as Stephens and Titus, I could imagine lots of questions being ruled out as not pertinent to the prosecution's questions.)

    Re: Duke Lacrosse Hearings Today (none / 0) (#53)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:39:40 PM EST
    Photios
    I've also heard the rumor it may be a mitochondrial DNA test on the pubic hair, though the remark applies in that case as well.
    That would make more sense than the blood, because Nifong doesn't dare test that. It also jibes with what I think I heard listening to the hearing. Right after the argument between Osborn and the judge about ending discovery Nifong said something about awaiting SBI lab results. I supposed they could be testing blood, but I doubt that would take very long. Maybe the "gentleman" in Raleigh that Precious went looking for and found the morning of the dance was white.

    Re: Duke Lacrosse Hearings Today (none / 0) (#54)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:47:40 PM EST
    It's not standard practice under the FERPA law and apparently it's not standard under NC law either. Did you listen to the hearing and the arguments that pointed all this out?
    I didn't listen to the arguments and I have no idea what's standard for these sorts of things. But I worked for a judge for a semester in law school and it just wasn't that unusual for parties to offer really minimal support for things like this - but to give their argument orally if they were challenged. FERPA is a federal law, but Nifong operates almost exclusively in state court. Maybe the procedures are different and less formal at the state level. But most likely, Nifong didn't know about FERPA. I'm guessing this is the first time he's come across it in 20 years of prosecuting crimes. It's just too obscure to come up in run-of-the-mill criminal cases.

    Re: Duke Lacrosse Hearings Today (none / 0) (#55)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:50:47 PM EST
    Meanwhile, can one of the lawyers out there enlighten me why Nifong gets to call anyone he wants as a prosecution witness, even though presumably there are many of them the defense would want to call as defense witnesses. Does the one exclude the other?
    No. Although the court has tremendous discretion with regard to witnesses.
    If they are called as prosecution witnesses does that mean the defense can't question them about what it would like to for purposes of its case, but only cross-examine on questions raised by the prosecution
    Usually, and then they would be recalled by the defense in their case. Although I have seen a federal judge allow exactly what you raise to save time. In my case the witness (hostile) was called in the plaintiff's case. The judge then allowed the defense to take the witness on direct without leaving the stand.

    Re: Duke Lacrosse Hearings Today (none / 0) (#56)
    by Talkleft Visitor on Mon Jul 17, 2006 at 09:57:58 PM EST
    Thanks, Newport. It's reassuring except for the "court has tremendous discretion" part.

    Re: Duke Lacrosse Hearings Today (none / 0) (#57)
    by Talkleft Visitor on Mon Jul 17, 2006 at 10:10:02 PM EST
    Your welcome. I always look forward to your posts. You are the best non-lawyer, lawyer I have ever come across. Must be a hard science or math person.

    Re: Duke Lacrosse Hearings Today (none / 0) (#58)
    by Talkleft Visitor on Mon Jul 17, 2006 at 10:21:35 PM EST
    The case isn't at that phase yet. I don't know the NC rules of criminal procedure, but my strong suspicion is that he won't have to provide that kind information until much closer to trial. Anyone know better and care to enlighten me?
    This has no bearing on the issue at hand. Whether it is not yet time to turn over a list of trial witnesses does not mean Nifong doesn't have to provide some individualized showing of need for the information and why a potential witness would possess this information so that the court can balance the state's stated need against the potential witnesses right to privacy. You have yet to state why Nifong needs this information, and why the police cannot find the potential witnesses to talk to them if this is what they desire to do.

    Re: Duke Lacrosse Hearings Today (none / 0) (#59)
    by Talkleft Visitor on Mon Jul 17, 2006 at 10:38:01 PM EST
    Thanks, Newport. (I am a logician, trained in mathematics, though I work in a philosophy department.) I have had a crash course on FERPA matters because I was appointed to the university committee that hears procedural appeals from the student-faculty discipline committee. We don't get many cases, but the mere existence of the committee tends to ensure that the discipline committee at least follows the university's own stated rules. Under our rules Seligmann and Finnerty, after indictment, would probably have been suspended without prejudice, meaning they would have been allowed to finish the semester's work using other students' lecture notes even if they were banned from campus. Apparently Duke does not allow this as a matter of course. I can't see any justification for suspending McFadyen without allowing him even a hearing to present his American Psyco defense. The university administration's conduct is what actually was most immediately troubling to me in this case, though it isn't, strictly speaking, a legal issue and hasn't figured very much on this blog. Now another legal question for you:
    You have yet to state why Nifong needs this information, and why the police cannot find the potential witnesses to talk to them if this is what they desire to do.
    Can the police legally do this --- question potential witnesses they know to be represented by counsel without going through counsel? And if they can when acting on their own, can they do so if being directed by Nifong, or more to the point, can Nifong legally direct them to do so? They tried this before early on, and there was some discussion, but no court ruling.

    Re: Duke Lacrosse Hearings Today (none / 0) (#60)
    by Talkleft Visitor on Mon Jul 17, 2006 at 10:52:50 PM EST
    Photios -
    Can the police legally do this --- question potential witnesses they know to be represented by counsel without going through counsel?
    Yes, no problem at all. The potential witness does not have to answer. If the police arrest the potential witness or take the potential witness into custody the police have to Mirandize the person and they must cease questioning the person if the person asks for questioning to stop or asks for his/her lawyer. In a non-custodial interview the police do not have to stop questioning but the witness still does not have to answer anything. You should note that Coyote99 and Khartoum disagree with me somewhat on this as they argue that the facts of this case show the police are an agent of DA Nifong and they point out that lawyers cannot directly contact opposing parties known to be represented by counsel without the opposing counsel's consent under the state ethical rules applicable to lawyers.
    And if they can when acting on their own, can they do so if being directed by Nifong, or more to the point, can Nifong legally direct them to do so? They tried this before early on, and there was some discussion, but no court ruling.
    Probably not. See argument of Khartoum and Coyote99 above.

    Re: Duke Lacrosse Hearings Today (none / 0) (#61)
    by Talkleft Visitor on Mon Jul 17, 2006 at 10:59:16 PM EST
    Photios - Your questions above point out yet another reason why Nifong doesn't need the players' home addresses. They are all represented by counsel and at this stage of the proceeding it is quite possible that any police interview would be viewed as directed by the DA and hence improper. This is all a joke because Nifong knows no one is going to talk to him or the police after all the stuff he has pulled in this case.

    Re: Duke Lacrosse Hearings Today (none / 0) (#62)
    by Talkleft Visitor on Mon Jul 17, 2006 at 11:01:07 PM EST
    Re: Duke Lacrosse Hearings Today (none / 0) (#63)
    by Talkleft Visitor on Mon Jul 17, 2006 at 11:04:28 PM EST
    Gottleib's memoirs? Sounds about right for page count.

    Re: Duke Lacrosse Hearings Today (none / 0) (#64)
    by Talkleft Visitor on Mon Jul 17, 2006 at 11:26:55 PM EST
    This settles it:
    "We're not trying to investigate them," Nifong said. "We are not trying to say there are crimes that we want to prove they are guilty of. We want to be put in a position to call them to tell the jury in Durham what they observed go on that night when this took place."
    Nifong wants the addresses for a trial subpoena and the whole process is out of order. Once he identifies his trial witnesses he can get the addresses to serve the subpoenas if he doesn't already know them. Motions' to quash absolutely should be granted.

    Re: Duke Lacrosse Hearings Today (none / 0) (#65)
    by weezie on Tue Jul 18, 2006 at 05:13:24 AM EST
    Newport, you should be a judge. Very well done!

    Re: Duke Lacrosse Hearings Today (none / 0) (#66)
    by Bob In Pacifica on Tue Jul 18, 2006 at 07:19:42 AM EST
    My guess is that at this stage Nifong may want to limit the number of defense witnesses who will come to the stand and say that nothing happened. If there were twenty guys at the party when the dancing started at midnight, chances are that they all will be generally confirming the testimony of the three defendants. +++ After all the discovery is over and the case moves into the next phase, can Seligmann (and presumably Finnerty) present their alibis in court? So far we only know (from the search warrants) that the prosecution's theory of the case says the gang rape occurred after midnight. Presenting alibis in court would seem to require that Nifong show his hand as to when the alleged rape may have occurred. Can he continue to not say when the state thinks the rape occurred and somehow prevent alibis from being entered prior to trial? It sounds insane, but we are talking about Durham and Nifong.

    Re: Duke Lacrosse Hearings Today (none / 0) (#67)
    by Bob In Pacifica on Tue Jul 18, 2006 at 07:32:52 AM EST
    IDing DNA from hair is pretty tough. The other problem with IDing from hair is that hair is easily transferred. Granted, rolling around on the floor, even without underwear, doesn't guarantee picking up the pubic hair of one of the accused on one's most precious part. In cases where there is forethought, faking hair evidence is pretty easy. There is hair evidence everywhere. I've got an Akita blowing his coat everywhere and I keep hoping someone will come over and indict him for something. I can remember months back there were a lot of furrowed brows about what the DNA testing would show. It eventually showed that the AV had recent sex with her boyfriend and not the defendants. I am interested in what's left in discovery under the theory that Nifong has to have something, but I wouldn't be surprised that there is nothing that will help propel this miscarriage of justice.

    Re: Duke Lacrosse Hearings Today (none / 0) (#68)
    by wumhenry on Tue Jul 18, 2006 at 02:12:49 PM EST
    IMHO asked:
    Did you see the WRAL feed? Butch didn't look to steamed up. I wonder what you think that says about him?
    If *I'd* hired him to represent a kid of mine in this case, he'd damn well better do any kissing up to Nifang off-camera!

    Re: Duke Lacrosse Hearings Today (none / 0) (#69)
    by wumhenry on Tue Jul 18, 2006 at 02:49:55 PM EST
    Nifang must regret not having collected that key-swipe data before lineups were conducted! Had he done so, Himan might've steered the AV into picking three suspects without alibis. Question: is there any legal hitch that would prevent Nifang from indicting substitute scapegoats in the event that one or more of the current defendants gets off the hook based on alibi evidence?

    Re: Duke Lacrosse Hearings Today (none / 0) (#70)
    by Talkleft Visitor on Tue Jul 18, 2006 at 03:06:16 PM EST
    I would say absolutely not. Not in Durham and especially not in Durham with Judge Titus, who I find singularly unimpressive, especially when he blew out a little hot air yesterday about talking too much and when he was genuinely hostile to Osborn. There are 15,180 different ways to choose 3 players out of a group 46 (thanks for the formula, Photios). I look for some of these possibilites to be utilized in the future.

    Re: Duke Lacrosse Hearings Today (none / 0) (#71)
    by wumhenry on Tue Jul 18, 2006 at 03:22:50 PM EST
    Of course, for the AV to ID a substitute scapegoat following acquittal of one of the current defedants would be tanatamount to an admission that she falsely accused the acquitted defendant. The AV would have to explain why she previously fingered the acquitted one with "100% certainty" and changed her mind about the perp's identify only after the scapegoat of first choice was acquitted. That might be too much for even a previously-sympatico Durham juror to swallow.

    Re: Duke Lacrosse Hearings Today (none / 0) (#72)
    by Talkleft Visitor on Tue Jul 18, 2006 at 03:25:26 PM EST
    To answer your question without sarcasm, the only legal hitch I am aware of would be called prosecutorial discretion and it would go something like this: the complaining witness obviously is making this up because she is identifying people who couldn't have attacked her so I will choose not to prosecute anyone else after this has become apparent. This notion of prosecutorial discretion will not be employed by Nifong in this case.

    Re: Duke Lacrosse Hearings Today (none / 0) (#73)
    by Talkleft Visitor on Tue Jul 18, 2006 at 03:33:23 PM EST
    That might be too much for even a previously-sympatico Durham juror to swallow.
    Not sure. Many in Durham believe this was a set up from the beginning and/or that complainant was drugged. If other "evidence" could be produced against a previously unindicted player, they could easily get indicted and brought to trial. The bad ID's could be explained away to such a jury. Nifong knows his constituency, and he knows his courtroom where he has an apparent carte blanche to say and do whatever he wants. I detect that in Durham, the DA controls the calendar and courtroom as much as the judge. Nifong is supremely confident in his case because of the foregoing.

    Re: Duke Lacrosse Hearings Today (none / 0) (#74)
    by wumhenry on Tue Jul 18, 2006 at 03:35:50 PM EST
    I venture to say that all Nifangian behavior pertaining to this case, past, present, and future, has been, and will be, consistent with the following rule: Nifang will do anything necessary to avoid being accused (however unreasonably) of betraying the AV.

    Re: Duke Lacrosse Hearings Today (none / 0) (#75)
    by january on Tue Jul 18, 2006 at 04:12:21 PM EST
    Does anybody here think that poor woman is actually going to testify? And does Nifong have a case without her?

    Re: Duke Lacrosse Hearings Today (none / 0) (#76)
    by Talkleft Visitor on Tue Jul 18, 2006 at 04:27:09 PM EST
    I've heard some knuckleheads on TV say that the prosecutor can proceed without the complainant. BS. Show me one case where that's happened. The DA could technically slap her with a subpoena to compel her to appear but without that or if she doesn't show, the state can't use her statement -- this would violate the 6th Amendment confrontation clause. Her statement would also be hearsay.

    Re: Duke Lacrosse Hearings Today (none / 0) (#77)
    by Talkleft Visitor on Tue Jul 18, 2006 at 04:38:41 PM EST
    I am not aware of there even being any way for the DA to get in (without the FA, through police reports, officer testimony, doctor testimony etc.) that FA said she was raped (maybe some exception to hearsay rule like excited utterance but what about the confrontation clause issues?). As to the medical findings, well they make no conclusion as to FA being raped.

    Re: Duke Lacrosse Hearings Today (none / 0) (#78)
    by Talkleft Visitor on Tue Jul 18, 2006 at 04:50:32 PM EST
    5:27 post above should have said "without the available complainant." Meaning she's still alive and kickin.

    Re: Duke Lacrosse Hearings Today (none / 0) (#79)
    by Talkleft Visitor on Tue Jul 18, 2006 at 05:15:56 PM EST
    wumhenry wrote:
    Question: is there any legal hitch that would prevent Nifang from indicting substitute scapegoats in the event that one or more of the current defendants gets off the hook based on alibi evidence?
    That is where the press comes in. That is why this case is different from most. If DA Nifong drops charges against Reade Seligmann and goes fishing for a player without an alibi, my prediction is that the national media will flay him alive.

    Re: Duke Lacrosse Hearings Today (none / 0) (#80)
    by Talkleft Visitor on Tue Jul 18, 2006 at 05:34:14 PM EST
    This is an excellent point, Marcus. Perhaps even the teflon Nifong could not survive that. I like that, the "Teflon Nifong." How do you do the little copyright symbol again?

    Re: Duke Lacrosse Hearings Today (none / 0) (#81)
    by Talkleft Visitor on Tue Jul 18, 2006 at 06:17:17 PM EST
    Newport wrote:
    ...Many in Durham believe this was a set up from the beginning and/or that complainant was drugged......Nifong knows his constituency, and he knows his courtroom...
    I agree. The defense could face a real uphill battle here. Conspiracy theories are common in the African-American community. The most famous that I can think of is that the CIA developed the HIV virus in a laboratory to reduce the black population in the U.S. We already see signs of this in the Duke lacrosse case. The AV's mother apparently said: "Duke did something to those DNA results so they would favor those boys."

    Re: Duke Lacrosse Hearings Today (none / 0) (#82)
    by Talkleft Visitor on Tue Jul 18, 2006 at 06:39:34 PM EST
    This is an excellent point, Marcus. Perhaps even the teflon Nifong could not survive that. I like that, the "Teflon Nifong." How do you do the little copyright symbol again?
    ALT-0169

    Re: Duke Lacrosse Hearings Today (none / 0) (#83)
    by Talkleft Visitor on Tue Jul 18, 2006 at 06:41:57 PM EST
    Thanks. "Teflon Nifong" ©

    Re: Duke Lacrosse Hearings Today (none / 0) (#84)
    by Talkleft Visitor on Tue Jul 18, 2006 at 07:01:57 PM EST
    Like the term, Newport, but hope it proves to be wrong as it did, eventually, for Gotti. Think the Nifong children will get their own show, "Growing up Nifong"? If the AV doesn't wish to testify, no way the case can go forward. Newport, I don't think the "excited utterance" exception will work to get her testimony in without her on the stand. Too many opportunities to utter excitedly before she got to DMC, too many times she did not say anything to anyone that she had just been brutally gang raped. And her ID of the Duke Three can't come in, so even if her "I was raped" comes in, how could the prosecution identify the perpetrators? It has been said/noted that she is in "protective custody," but can anyone provide me with a source for this? Her virtual disappearance from her life is one of the most troubling aspects of this case, right now, for me.

    Re: Duke Lacrosse Hearings Today (none / 0) (#85)
    by Talkleft Visitor on Tue Jul 18, 2006 at 07:38:10 PM EST
    Sharon, all good points. Her ID's could not come in w/o her. Without ID, no case. There is no forensic linking evidence or eyewitness testimony that could substitute for the FA's eyewitness ID's either.

    Re: Duke Lacrosse Hearings Today (none / 0) (#86)
    by Talkleft Visitor on Tue Jul 18, 2006 at 07:40:32 PM EST
    Think the Nifong children will get their own show, "Growing up Nifong"?
    No, but I have a feeling their are some parents out on the East coast that feel their children are "Growing up Nifonged."

    Re: Duke Lacrosse Hearings Today (none / 0) (#87)
    by Bob In Pacifica on Tue Jul 18, 2006 at 08:42:22 PM EST
    Marcus, considering our history African Americans have plenty of reason to believe in conspiracies. Not this one, though. +++ By the way, did you know whom Dr. Gallo worked in the decade before AIDS started appearing in places of mass innoculations? Litton Bionetics, one of the biggest military biowarfare contractors. He was working on various immunosuppressive animal viruses, mixing them up in chimps.

    Re: Duke Lacrosse Hearings Today (none / 0) (#88)
    by Talkleft Visitor on Tue Jul 18, 2006 at 08:42:23 PM EST
    It seems like that for months I have been waiting to see or hear what Nifong's "silver bullet" or "smoking gun" could be. And I am still waiting. As with so much in this case, looking at and understanding the timing is the key to it all. From his "first setting" in the court of public opinion, with the media as judge and jury, Nifong adamantly, unswervingly, powerfully, decisively made it clear that at that point he was sure that a rape had occurred. What was the date of his first forays into the world of 2006 media frenzy? March 27th or so? ON THAT DATE, AT THAT TIME, what evidence did he have to make him so sure? Her statement, or at best the one of her statements, that he believed, or wanted to believe. From that date onward, up to and including the date of the first two indictments, what did he learn that bolstered his belief that the AV was raped by three Duke lacrosse players? What important piece of evidence did the DPD discover that made Nifong's case that a rape occurred stronger? What did he learn, in between his initial statements and his presenting the case against CF and RS, that made it stronger and clearer that they were the "more likely than not" two of the three guilty parties? What did he learn, between the indictments of CF and RS, that made him present a case against DE? At least in this gap there is a whisper of a something: Nifong had the "not inconsistent with" DNA results to go along with the "90% sure" if not for that mustache issue. Everything that Nifong knew, everything that he had in hand, up to and including the time of the indictment of DE, should have been in the discovery turned over to the defense in his initial production of the 1300 or so pages. Think about it. There is nothing that Nifong could have in his double secret probation file that would negate what has already been presented in court filings, unless one actually believes that one of the defense attorneys would risk his reputation and his livelihood by filing false sworn documents. One must then, of coure, also think that Dan Abrams would knowingly ignore information that not only challenged the defense motions and other publicly made statements by the defense, but completely refuted them. All Nifong has ever had was (1) a firm, abiding, and sure conviction that the AV was raped at that house that night. By someone. As I heard in the real world, when the story first broke, "I don't know what happened, but something must have." I myself thought that for awhile. Or (2) a politically driven desire for this case to put him over the top so that he could move in, on more than a temporary basis, to the corner office of The District Attorney of Durham County. Or, (3) some combination of the two. There is no smoking gun. There is no silver bullet. There is no case.

    Re: Duke Lacrosse Hearings Today (none / 0) (#89)
    by wumhenry on Tue Jul 18, 2006 at 09:19:29 PM EST
    If DA Nifong drops charges against Reade Seligmann and goes fishing for a player without an alibi, my prediction is that the national media will flay him alive.
    I wouldn't bet on it. MSM was mightily interested when the "privileged white college students at elite college rape poor black mother of two "angle was plausible. That was win-win: a man-bites-dog story with a PC moral. I doubt that MSM interest in a Tawana-Brawley-redux story would be anywhere near as keen.

    Re: Duke Lacrosse Hearings Today (none / 0) (#90)
    by Talkleft Visitor on Wed Jul 19, 2006 at 12:55:41 AM EST
    Apparently Sharon and I weren't the only ones disgusted with Nifong's unprofessionalism at the hearing on Monday. Link Judge Titus should be thoroughly ashamed of himself for allowing that type of grandstanding to go on in his courtroom, especially with all the media coverage. He should be even more ashamed that he allowed such preposterous personal attacks by Nifong after he had just issued his grandstanding lecture about how everyone ought to be following the rules of professional conduct.

    Re: Duke Lacrosse Hearings Today (none / 0) (#91)
    by weezie on Wed Jul 19, 2006 at 04:14:03 AM EST
    Just add that performance to his previous courtroom smirking, head-shaking and clucking, along with his public explosion against Kerry Sutton and it would appear that he is in way over his head. I wonder what Mr. Bennett would say about all this grandstanding?

    Re: Duke Lacrosse Hearings Today (none / 0) (#92)
    by Bob In Pacifica on Wed Jul 19, 2006 at 06:17:45 AM EST
    Newport, don't forget this part of the story: Nifong went on vacation Tuesday and could not be reached for comment. He's playing keepaway as long as possible. Now if he can stretch that vacation to November...

    Re: Duke Lacrosse Hearings Today (none / 0) (#93)
    by Bob In Pacifica on Wed Jul 19, 2006 at 06:21:45 AM EST
    Sharon, you 9:42pm post could be used as a summation at Nifong's trial. Right before they slap the cuffs on him.

    Re: Duke Lacrosse Hearings Today (none / 0) (#94)
    by Talkleft Visitor on Wed Jul 19, 2006 at 10:53:07 AM EST
    There is a very good open letter from Friends of Duke Lacrosse to the Duke administration. It is a cogent criticism of Mr. Nifong's actions supported by legal citations. Here is a copy of the link (I hope I am doing this correctly) press release

    Re: Duke Lacrosse Hearings Today (none / 0) (#95)
    by Talkleft Visitor on Wed Jul 19, 2006 at 11:22:52 AM EST
    A bit of trolling! It appears that (at long last) a genuinely grave injustice has been done to the most discussed woman on this forum. Precious celebrated her birthday on July 16th without one single notice from any of her myriad admirers on the Web. Topic of Belated Discussion: What does she deserve as a suitable birthday gift? To begin in a spirit of true reconciliation I suggest a complete amnesty for all crimes committed in the State of North Carolina and a novitiate in the Convent of the Holy Flail,Northern Siberia.Length of stay to be determined by the Mother Superior. Alternatively,a gift of a ten year contract as a sister in the Lebanese Red Cross should provide her with sufficent enlightment.Make that five years if she agrees to take Kim with her. Sydney Carton

    Re: Duke Lacrosse Hearings Today (none / 0) (#97)
    by Talkleft Visitor on Wed Jul 19, 2006 at 11:45:48 AM EST
    The biggest problem the foregoing raises is that the Durham judges cannot be expected to do anything to rein in Mr. Nifong's unprofessionalism and abuse of the judicial process. This will be very important at trial where Nifong will be given wide latitude to abuse defense witnesses and the falsely accused should they testify. On the other side of things, if current perceptions are accurate, the Durham judges will not afford defense counsel wide latitude to vigorously go after the accuser to challenge her credibility and to expose her many tales as falsehood. The Durham judges are little more than an adjunct of the DA and I suspect this has been going on for a long time. Hence, the numerous sycophants among the defense lawyers who do not dare say anything against unfair practices by the DA's office for to do so would be career suicide at the hands of this petty man who is allowed unchecked power to annilate his foes in a rigged system

    Re: Duke Lacrosse Hearings Today (none / 0) (#98)
    by Talkleft Visitor on Wed Jul 19, 2006 at 12:38:34 PM EST
    Newport wrote: SNIP I mean if there is anything that blows a hole in her story besides the lack of injuries consistent with rape, the false description of her alleged attackers, the alibi's, lack of DNA, and lack of corroboration of anything by Roberts, it is the 12:26 phone call and the attempt to reenter hell house at 12:30 after the rape to get her shoe. To which I would add one further bit of evidence in respect to the correlation of the dated ll:26 phone call and the ll:31 photograph which shows the nail polish stains on the back porch railing. I have recently spoken to three ladies all of whom assure me that nail polish dries in between five minutes and ten minutes(one said about twelve minutes maximum).On the longest possibility which they offered to me Precious started putting on her polish at 12:l9,pretty cool for a woman who had just terminated a massive triple rape in the twelve minutes between 12:07 and 12:19. On the shortest possibility she did the nails in five minutes coming back from the car between 12:26 and l2:31 immediately after the telephone call. She still has the phone in (I think) the 12:31 photograph.Therefore only she or Kim could have made the 12:26 call to the brothel. In her earliest statement Kim says she was only absent from Precious for about five minutes in all.This precise five minute period is accounted for by the correlation of the 12:26 phone call and the late 12:30 photograph. This is the five minute period which Kim described in her first statement as the only period that she was absent from Precious and therefore, by her own admission,Precious was constantly under her observation in the bathroom and on the trip back to the car. Kim,of course,knew before she left that photographs were being taken.However,according to her first story,she and accomodating Dan go back in in looking for the missing money and fail to find it. That part of the story is certainly untrue.This would have meant crossing over Precious's body and twice crashing through a crowd of her by now irate dupes. No way Dan or anybody else offered to willing return more of her ill gotten gains after l2:30.No way either of them got back into the house after they made their first getaway while the athletes were piled up relieving themselves. Thank you again,Newport.I hope that you and Photius will eventually prepare a brochure of your extended analysis over the past several months. The readership could not have travelled with more astute guides. Sydney Carton

    Re: Duke Lacrosse Hearings Today (none / 0) (#100)
    by Talkleft Visitor on Wed Jul 19, 2006 at 12:43:06 PM EST
    The LAX Reaction, some in-depth reporting here.

    Re: Duke Lacrosse Hearings Today (none / 0) (#101)
    by Talkleft Visitor on Wed Jul 19, 2006 at 03:04:57 PM EST
    Sydney: Newport has been posting much longer and more prolifically than myself. If he writes a brochure I won't be represented by more than a couple of footnotes. Meanwhile, I do have a new footnote: I spoke this morning with the University Counsel's office at my own school about how they respond to subpoenas of possibly F.E.R.P.A. protected material. My informant said several things: (1) First, the university generally does not object to the subpoenas unless they consider them overly broad, in which case they either try to negotiate a narrower subpoena, or announce that because so much is being asked for they aren't in a position to supply it in a reasonable amount of time. (2) Second, they immediately inform the affected students, generally leaving it to them whether to move to quash the subpoena. (3) Third, affadavits declaring why the material is wanted generally do not accompany the subpoena, but are only generated if there is a motion to quash. (3) Fourth, while my school do treat access-card data like (other) F.E.R.P.A. protected material "out of an abundance of caution" some schools treat it as "security data" and will turn it over without raising F.E.R.P.A. issues. (4) Fifth, grand juries can subpoena F.E.R.P.A. protected material secretly, forbidding the school to announce the fact to the target of the investigation. Actually, my informant only had experience of federal grand juries doing this, e.g. secretly seeking school financial records of a student as part of a tax-evasion investigation of the parents. I think it is pretty clear that Nifong could legally get what he wanted as regards the access-card data if he went about it the right way, but he also pretty clearly has no experience of F.E.R.P.A. cases --- just as he has no experience of trying a case under the 2004 NC discovery rules --- and is just going to rely on his satellites on the Durham bench doing his bidding. On the whole, it is not encouraging. One encouraging note is that Brodhead's behavior is being widely studied at other institutions of a model of how not to deal with a crisis.

    Re: Duke Lacrosse Hearings Today (none / 0) (#102)
    by Talkleft Visitor on Wed Jul 19, 2006 at 03:22:50 PM EST
    Newport - In response to your 12:45 post, most federal and state judges are biased (to a great extent) to the prosecution.Further, the petty tyrant syndrome is way too common in judges. Watch "And Justice for All", starring a young Al Pacino. The characters in that movie were based on real judges in Baltimore. I personally practiced in front of the judge portrayed in that movie as the rapist and his in court room demeanor was absolutely right on in the movie. Defense counsel or any other counsel who challenge the autocratic authority of the judges get slammed big time. While you might think that the defense counsel are being sychophantic, they are trying to protect their clients by not alienating the guy in the black robe. Ultimately, I think the judges will do the right thing in this case (See, e.g. the Joanne Little case from Durham back in the 1970's). I don't think that the defense counsel will be unduly hampered. Otherwise, the judge risks reversal on appeal which would be humilitating. On another note, I have too often observed the friendy attitude displayed by 'opposing counsel'. In my opinion, there was no excuse for 'Butch' Williams to be so glad handy with Nifong. At least the other lawyers looked away. It was very disappointing that none of the LAX player lawyers challenged Nifong's statement in court. The really big problem in this case is Nifong's actions. I thought it was a case of obvious projection that he accused defense counsel of wanting the media spotlight. Usually, the State's Attorney has a better sense of priorities. In all my years of practice (including when I was an assistant attorney general prosecuting death penalty appeals) I never saw a State's Attorney get so personally involved in a case. The only time I ever saw a State's Attorney participate in a case personally was the first time our state death penalty statute was challenged. The case came from our smallest jurisdiction (where the State's attorney had only one part time assistant) and the crime was murder of a law enforcement officer and his dog. Culpability was not at issue but the constitutionalty of the statute was at issue. Nifong will never let this go and there are too many potential jurors who have already decided on a guilty verdict for 'pay back'. I worry about a hung jury and Nifong vowing a retrial.

    Re: Duke Lacrosse Hearings Today (none / 0) (#103)
    by weezie on Wed Jul 19, 2006 at 03:28:53 PM EST
    Newport, thanks for that Chronicle article. I was just about to link it so I'm glad you did. It makes me so sad for the players. I wonder how the FA lovers will react. No wait, I already know; crickets will chirp or pots will start clanking with accusations of alcohol psychosis at the party. And Photios, while I am disgusted with Brodhead, I have to think that the uiniversity counsel is the real moron. Somebody had to be advising Dick to hide under the covers and set the players up for this catastrophe.

    Re: Duke Lacrosse Hearings Today (none / 0) (#104)
    by Talkleft Visitor on Wed Jul 19, 2006 at 03:46:08 PM EST
    Patsy Mac
    While you might think that the defense counsel are being sychophantic, they are trying to protect their clients by not alienating the guy in the black robe.
    No, I don't think that about these defense counsel at all. I think Osborn is doing everything he can to vigorously represent his client. My reference to sycophants was to the Durham lawyers I have seen on TV praising Nifong. I don't have any experience in criminal defense cases, but I have watched a few federal criminal cases while waiting around, and I did not see any such unprofessional behavior on the part of the prosecution and I did not see the judges bending over backwards to allow prosecutors to make unprofessional attacks. I too am disappointed that one of the defense lawyers did not say something to the judge, I know I would have. I hope you're right that the judge (whoever that is) will be fair at trial. I hope I will be proven wrong on this.

    Re: Duke Lacrosse Hearings Today (none / 0) (#106)
    by Talkleft Visitor on Wed Jul 19, 2006 at 04:13:18 PM EST
    Nifong will never let this go and there are too many potential jurors who have already decided on a guilty verdict for 'pay back'. I worry about a hung jury and Nifong vowing a retrial.
    As James B. Shearer has pointed out in response to my questions of whether the defendants could file a collateral attack in federal court to enjoin Nifong from proceeding with these state proceedings, there is precedent for a federal injunction against retrial under an exception to the Younger abstention doctrine. See the case of Garrison of New Orleans prosecuting Clive Owen I believe.

    Re: Duke Lacrosse Hearings Today (none / 0) (#107)
    by Talkleft Visitor on Wed Jul 19, 2006 at 04:18:19 PM EST
    Wumhenry
    I just learned that in a letter published in the Durham newspaper last month, a Duke professor urged Nifong to administer a lie-dectector test to the AV. Nice idea, but fat chance!
    Yeah, the machine would start to smoke and explode!

    Re: Duke Lacrosse Hearings Today (none / 0) (#108)
    by Bob In Pacifica on Wed Jul 19, 2006 at 09:06:31 PM EST
    Newport, I see that Nifong "was unavailable for comment" for the story you linked. Funny, he used to be so talkative.

    Re: Duke Lacrosse Hearings Today (none / 0) (#109)
    by Talkleft Visitor on Wed Jul 19, 2006 at 09:19:58 PM EST
    Jeralyn got some love today from my favorite history professor, K RC Johnson, good job Talk Left.

    Re: Duke Lacrosse Hearings Today (none / 0) (#110)
    by Talkleft Visitor on Thu Jul 20, 2006 at 08:02:06 AM EST
    I'm not sure if this has been posted already: Lax Players Speak Out

    Re: Duke Lacrosse Hearings Today (none / 0) (#112)
    by weezie on Thu Jul 20, 2006 at 01:39:05 PM EST
    Sweet link Wumhenry. Post it on the forum and watch the sparks fly! Excellent observations. I also enjoy your work on the 2Sistahs site.

    Re: Duke Lacrosse Hearings Today (none / 0) (#113)
    by Talkleft Visitor on Thu Jul 20, 2006 at 03:42:20 PM EST
    wumhenry: That's a very curious incident. If I recall correctly it immediately preceded the police attempt to talk to the players without their lawyers. The stunt would hardly make sense if the persons responsible for the message already knew that no rape had been committed. This is the only episode I can think of that suggests that anyone connected with the police or prosecutor's office at any time believed some kind of sexual assault had occurred. (As Newport and others have several times said, Nifong's great initial confidence in what the DNA would prove is entirely consistent with his knowing all along that there was no rape but thinking that there was prostitution, and intending to railroad the prostitute's clients on a false rape charge.) Since I don't believe Nifong ever really believed a rape occurred, I suspect this stunt was an indepedent initiative on the part of someone in the DPD. But who knows?

    Re: Duke Lacrosse Hearings Today (none / 0) (#114)
    by Talkleft Visitor on Thu Jul 20, 2006 at 05:23:06 PM EST
    Here's the link for the Johnson article newport mentioned. It describes TL as having "provided the most incisive legal critique of Nifong's behavior."

    Re: Duke Lacrosse Hearings Today (none / 0) (#111)
    by wumhenry on Thu Jul 20, 2006 at 06:33:13 PM EST
    During the investigation, a controversial e-mailcame from the address of a team member which told teammates that he planned to tell authorities that a crime had been committed and that he knew who had done it and would turn them in. The young man denied that he had sent it, and defense attorneys believe that it was an attempted setup by police, who wanted to make the lacrosse team members nervous. The e-mail bore the subject 'sorry guys' in the subject line, and contained this message: 'I am going to go to the police tomorrow to tell them everything that I know.' The player said he was in class at the time the message was sent, although he still could have sent it from any number of wireless devices. But the source of the e-mail should be traceable. The police surely had his password and had the means and opportunity to cause mischief.
    http://www.michnews.com/artman/publish/article_13494.shtml">link

    Re: Duke Lacrosse Hearings Today (none / 0) (#105)
    by wumhenry on Thu Jul 20, 2006 at 06:39:26 PM EST
    I just learned that in a letter published in the Durham newspaper last month, a Duke professor urged Nifong to administer a lie-dectector test to the AV. Nice idea, but fat chance! link

    Re: Duke Lacrosse Hearings Today (none / 0) (#99)
    by wumhenry on Thu Jul 20, 2006 at 06:43:36 PM EST
    Here's a link to an article that appeared in the July 16th NYT (home edition), which reports some interesting personal info on Reade Seligman: link You have to scroll down to see it.

    Re: Duke Lacrosse Hearings Today (none / 0) (#96)
    by Talkleft Visitor on Thu Jul 20, 2006 at 06:48:56 PM EST
    If I hear one more sycophant lawyer from North Carolina say that Nifong has always acted professionally in the past, and that his recent conduct is out of character, I am going to throw up. Nifong has been doing this sort of thing for a long time, he just hasn't been exposed for it. This is a vile, egotistical and petty man. From another board:
    I do not expect that at trial you will see much improvement in Mr. Nifong's disposition, behavior or manners if this appeal, based in part on his courtroom conduct is any indication of how he treats opposing lawyers, witnesses and defendants. Summary of the accusations contained within the appeal: "In summary, the prosecuting attorney in this case violated his ethical duty to ensure that defendant would receive a fair trial. By making disrepectful remarks about opposing counsel in front of the jury, he encouraged the jury to treat defense counsel's views with disrespect. By badgering, demeaning, insulting, and humiliating defendant and defendant's expert witness, the prosecutor encouraged the jury to view those witnesses and their testimony as unworthy of respectful consideration. The net result may well have been less than complete or less than accurate testimony from these witnesses. Under these circumstances, this Court cannot confidently conclude that defendant was not prejudiced by the prosecutor's conduct." The link offers many Nifong statements to show the basis for the appeal above. While the appeal itself did not fly, the comments included do show that what we see from him now is not new or unusual conduct.

    Re: Duke Lacrosse Hearings Today (none / 0) (#115)
    by wumhenry on Thu Jul 20, 2006 at 07:27:22 PM EST
    Some shrewd conjecture there, Photios.

    Re: Duke Lacrosse Hearings Today (none / 0) (#116)
    by Talkleft Visitor on Fri Jul 21, 2006 at 09:40:06 AM EST
    Judge Titus allowed Nifong to obtain the address information but not the key card information. I don't know the basis of the decision. It is being reported on WRAL.com.

    Re: Duke Lacrosse Hearings Today (none / 0) (#117)
    by Talkleft Visitor on Fri Jul 21, 2006 at 11:39:29 AM EST
    Re: Duke Lacrosse Hearings Today (none / 0) (#118)
    by Talkleft Visitor on Fri Jul 21, 2006 at 12:32:02 PM EST
    Photios - I am sorry for being non techno. How do you do the blue link thing?

    Re: Duke Lacrosse Hearings Today (none / 0) (#119)
    by Talkleft Visitor on Fri Jul 21, 2006 at 02:49:03 PM EST
    PatsyMac: Immediately below "Leave a Comment" after the comments there is a list of "HTML Tags". (1) Copy the lone that is followed by "= linked text" and paste it into the comment space. (2) Replace the part of it inside the quotation marks with the URL you want to link to. (3) Replace the words "linked text" with what you want the link to say. Push preview and check that the link works before posting.

    Re: Duke Lacrosse Hearings Today (none / 0) (#120)
    by sarcastic unnamed one on Fri Jul 21, 2006 at 02:56:42 PM EST
    To link, with apologies if it's too basic: -highlight the URL of the web-page that you want to link to. -copy the URL ("edit" then "copy"). -come back to TL and write something in the "Comments:" box. -highlight the word(s) in that comment that you want to be the link. -click the "URL" button above the "Comments:" box. -hold down the "Ctrl" button on your computer's keyboard and then type "v". -click "OK." -click the "Preview" button below the "Comments:" box. -if the preview looks good, click the "Post" button below the "Comments:" box.

    Re: Duke Lacrosse Hearings Today (none / 0) (#121)
    by ding7777 on Fri Jul 21, 2006 at 06:34:21 PM EST
    to sarcastic unnamed one When I click the URL tool, it already has http:// in the url address, so I have to delete the http:// before I do ctrl v or I end up with 2 http:// and an unlinkable url.

    Re: Duke Lacrosse Hearings Today (none / 0) (#122)
    by Talkleft Visitor on Sat Jul 22, 2006 at 05:38:41 AM EST
    Thanks for the help.

    Re: Duke Lacrosse Hearings Today (none / 0) (#123)
    by Talkleft Visitor on Sun Jul 23, 2006 at 05:33:52 PM EST
    Everyone's moved over to the discussion boards for discussion of (1) Nifong's assitant C. Destine Couch's pornographic personal website, and more importantly (2) Durham police sergeant Mark Gottlieb, chief investigator in the case, and his partner Clayton being placed on administrative duty after an assault (complete with racial slurs) by multiple white Durham police officers on a black Raleigh line cook. Coming up tomorrow: (3) Will Kim "Nikki" Pittman, a.k.a. Roberts show up at a scheduled court appearance tomorrow? (And will she flip the bird at cameramen again?)