DA Nifong: If Accuser Wavers on Identification, He'll Drop Case

While one of DA Mike Nifong's investigators was interviewing the accuser Thursday, he was giving a three hour interview to the New York Times.

Shorter version: If the accuser cannot with certainty identify the players she claims sexually assaulted her at the lineup hearing in February, he'll drop the case against those not identified.

Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.” And in a three-hour interview on Thursday, Mr. Nifong said he would not hesitate to drop all the charges if the accuser expressed doubt about the identity of the men she has accused when she sees all three defendants at a pretrial hearing set for February.

“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said. On the other hand, he continued, “If she says, yes it’s them, or one or two of them, I have an obligation to put that to a jury.”

More from Nifong:

Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

....I have told the defense attorneys that if at any time the victim in this case tells me that she thinks that one of these people who have been identified was not her assailant, as soon as she tells me that, then that case will go away,” he said. “I’ve said I’m not interested in prosecuting somebody that’s innocent. But until she tells me that, until she tells me these are not the right guys, we’re prosecuting this case.”

Nifong also had a weak explanation for not turning over the exculpatory DNA material:

On Thursday, Mr. Nifong acknowledged knowing about those test results before any players were indicted last spring. He also acknowledged that the results were relevant and “potentially exculpatory,” and he said he should have given the results to the defense before May 18, the day he signed a filing that said “the state is not aware of any additional material or information which may be exculpatory in nature.”

But Mr. Nifong denied the defense team’s contention that he had deliberately tried to either hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he simply had not realized that he had failed to turn over those specific DNA test results. “That wasn’t something I was concentrating on,” he said.

With more calls for Nifong to recuse himself coming from newspapers, even the head of Duke University and calls for investigation into his handling of the case, how much longer can he hold on?

How many times has the accuser seen the photos of the accused players in the paper or on tv? Even if she does identify them in court, at this point it's more likely she is identifying them from the portrayal of their pictures in the newspaper and on tv than from her memory of the events at the party.

I don't think her in-court identfication will be worth anything. Monks on the mountainside of Tibet could identify Seligman, Finnerty and Evans by now.

Nifong is digging himself into a career grave.

[Earlier post on accuser's recant of penile penetration here.]

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Should Nifong Drop All Charges
Yes, immediately 91%
Not unless accuser can't identify players at pre-trial identification hearing 0%
No, he should let it go to trial 8%

Votes: 12
Results | Other Polls
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    prosecutorial misconduct (cont) (none / 0) (#1)
    by orionATL on Sat Dec 23, 2006 at 07:27:09 AM EST
    my wife brings in the ny times from the driveway and heads for the coffee machine. i glance at the front page and see the duke lacrosse story. i read the story and

    it's deja vu all over again.

    nifong is using a newspaper interview to communicate with the accuser and her lawyers and family, just like scooter libby tried to do with his note to judy miller.

    if, says nifong,  in  print, the accuser cannot be certain of ---- or --- or ---, why then i'll just have to drop the complaints.

    this is one slick prosecutor.

    but then what about civil suits flowing from this criminal action? i suppose common sense says that the duke players will not risk any more by filing a civil suit. still, if you were really mad at being screwed over by nifong or complainant....?

    i don't think he's all (none / 0) (#2)
    by cpinva on Sat Dec 23, 2006 at 09:26:37 AM EST
    that slick. if he was, he'd have kept his mouth shut to begin with. as it is, he just digs that hole deeper and deeper.

    his admitted failure to turn over clearly exculpatory DNA evidence to the defense is going to turn into the final nail in his prosecutorial coffin. yes, he was busy, and that minor detail just got overlooked. and i have shares in the brooklyn bridge for sale.

    once that evidence came into his possession, he no longer had a good faith reason for continuing the case, because of the complete lack of any other substantiating evidence.

    as for the accuser's ID, that was going to get tossed, and he knows that. unless he could somehow find 12 people who live in caves in durham, bereft of all communication with the outside world, his chances of getting a conviction for the ham sandwich are better. assuming the judge didn't toss it right at the start.

    both mr. nifong and the accuser should be sued, for civil rights violations, by all three accused. financial loss is all local governments understand, anything else is static.

    This is common... (none / 0) (#3)
    by 1980Ford on Sat Dec 23, 2006 at 01:44:17 PM EST
    Ask any defense attorney and they will tell you this stuff happens everyday. But the conservatives, FoxNews, are painting it under the umbrella of class/race rather than a common abuse of power no matter the class or the race (even if more common against the poor and people of color because they can't fight back).

    This has plenty todo with race. (none / 0) (#4)
    by Abdul Abulbul Amir on Sat Dec 23, 2006 at 03:41:41 PM EST

    If the stripper were white, and the players black, this would be all over by now. If by some miracle not, the Justice Dept would be all over the DA and the Durham cops like stink on poop.

    The left has been hoist on their own petard. (none / 0) (#5)
    by demohypocrates on Sat Dec 23, 2006 at 09:08:58 PM EST
    This case grew to epic proportions, not because the accused are members of a prominent sports program, but because the Left found their poster boys.  Rich, white preppies, and racist rapists to boot.  A trifecta.  In the other corner you had the poor, defenseless black girl, forced to sell her body so she can go night school and feed her child. (violin chorus).  Enter Jesse, Al, and the New Black Panther party shouting for blood.  Not about race.  Puhhhhhlease.  If the victim were white would we have heard a peep from the aforementioned race mongers?  Strangely, they havent been back to Durham since.  Nifong wasn't trying to appease his black constituency before a primary?    

    The media loved the story because of its salaciousness.  It had booze, strippers, black/white and rich/poor.  The left liked it because it vindicated their racist world view.  

    Do blacks accused of crimes suffer injustices at the hands of corrupt prosecutors?  Of course. Are some if not many of the injustices racially motivated?  Of course.  Such cases should be publicized and protested.  Unfortunately the left would rather toot for Tookie.


    the left has been hoist.... (none / 0) (#6)
    by january on Sun Dec 24, 2006 at 11:55:54 AM EST
    Please do not use "the left" in such an uninformed, generalized manner.  I consider myself liberal/progressive (pick your left-wing adjective) and thought this case stunk from the start.  Those who are now having difficulties are the idealogues who would rather further a political agenda than look at facts.  They are a much smaller segment of society than "the left."

    I agree with you and dont want to tarnish.. (none / 0) (#7)
    by demohypocrates on Mon Dec 25, 2006 at 01:07:54 AM EST
    everyone on the Left.  There are many here, especially here, and elsewhere, that have voiced skepticism about the prosecution.  In all fairness, I commend you for that.

    I am sorry that my brushstroke was so broad.  It  shouldnt have been.

    But I still take to task the unapologetic people of the Left that havent demonstrated the candor you have.