The DA Nifong now admits in his court filing that: "there is no scientific or other evidence independent of the victim's testimony that would corroborate specifically (a rape charge), the state is unable to meet its burden of proof with respect to this offense." But he's keeping charges of "kidnapping" and "sexual offense" even as the accuser Magnum has changed her story once again: "In dropping the rape charges, Nifong filed court papers that said the accuser told an investigator Thursday that she is no longer certain whether she was penetrated vaginally with the men's penises, as she had claimed earlier."
Magnum originally "said three men raped her _ vaginally, anally and orally _ while holding her against her will in a bathroom... The men are still charged with kidnapping, for allegedly holding the woman against her will, and sexual offense. Under state law, a rape charge requires vaginal intercourse, while sexual offense covers any sexual act. In dropping the rape charges, Nifong did not specify what sex acts prosecutors now believe occurred."
Recall that his original filing, demanding DNA tests from all the players, would "identify the guilty and exonerate the innocent." Even after the testing found zero matches for any of the players, but did find matches for "several" other men, he proceeded, despite the accuser Magnum claiming that three of the players brutally raped her without a condom and ejaculated.
What has made Nifong finally reach this obvious conclusion after all this time? Though new evidence against Magnum's claims have never stopped trickling out, enough already existed at the time of the charge for any sensible DA to drop the case, if not initiate a new one against Magnum, for filing a false police report.
Incredibly, but not surprisingly given , Nifong has decided to keep the charges of "kidnapping" and "sexual offense." Why? Presumably because such charges can't be contradicted by evidence, and Nifong his hellbent on upholding his original, pre-evidence assertion that these guys raped Magnum. Yet whereas claiming you got brutally gang-raped by three condomless, ejaculating men *must* leave DNA traces -- especially if you host semen DNA from "several" other men with whom you had consensual sex at times more distant from the testing than your contact with the accused -- charges of "kidnapping" and "sexual offense" as alleged here necessarily implies no concrete proof that can test the charge.
But there remains unambiguous proof that Magnum has lied about several linchpin aspects of her allegation, the DNA exoneration falsifying her claim of rape standing paramount. When defense attorneys demonstrate beyond doubt that she lied about getting raped, what sensible person will believe that she did tell the truth about "kidnapping" and "sexual offense"?
I do shudder to think how Magnum could have gotten away with this if she had just constructed consistent, untestable lies. And if she can get away with it, anybody else can. But maybe we gain from this the deserved shattering of the myth that "women don't lie about rape."
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http://www.newsobserver.com/100/story/525091.html
Absolutely devastating article on all the contradicting statements that Nifong has made on record; how does he escape criminal charges.
http://www.nytimes.com/2006/12/24/us/24duke.html?ei=5065&en=6217ed19081c6529&ex=1167541200&partner=MYWAY&pagewanted=print
Recall the shameful NYT article that treated the defense and prosecution cases as having equal merit, long after all reasonable could see the truth. Now it appears that the NYT editors do as well. I reprint the article here, as it will go fee-basis in a few days.
DNA Witness Jolted Dynamic of Duke Case
By DAVID BARSTOW and DUFF WILSON
DURHAM, N.C., Dec. 23 — The moment that may have changed the course of the Duke lacrosse rape case came in a packed courtroom two Fridays ago.
On the stand at a pretrial hearing was Brian W. Meehan, director of a private laboratory that performed extensive DNA testing on rape kit swabs and underwear collected from a stripper only hours after she said that she had been gang-raped by three Duke lacrosse players after performing at a team party in March. Mr. Meehan’s tests on the swabs and underwear had detected traces of sperm and other DNA material from several men.
But his tests had found something else, too: none of that DNA material was from the three players, or any of their teammates.
Mr. Meehan had promptly shared this information with Michael B. Nifong, the Durham district attorney. Yet his summary report — the one that would be turned over to the defense — mentioned none of this.
It was an awkward omission that Mr. Meehan struggled to explain under withering cross-examination from defense lawyers. At one point, he was forced to admit that the incomplete report violated his laboratory’s own protocols.
Finally, a defense lawyer asked Mr. Meehan if the decision not to report complete test results was “an intentional limitation” arrived at between him and Mr. Nifong.
“Yes,” Mr. Meehan replied.
The courtroom, packed to standing room capacity with supporters of the players — who have always said they were innocent — erupted with applause.
On Friday, a week after Mr. Meehan’s testimony, Mr. Nifong dropped the rape charges but said he would proceed with kidnapping and sexual offense counts. Whether Mr. Nifong’s decision was directly related to the DNA revelations is a matter of dispute, but both sides agree that the testimony revealed much about the current state of this prosecution.
Perhaps more than anything else, that testimony added substantially to the long list of questions about the accuser’s credibility and Mr. Nifong’s judgment. The woman had told investigators that before the party, she had not had sex for about a week. How, then, to explain the DNA?
And given her description of a brutal gang rape, how could the most sensitive DNA test available fail to find even a single incriminating cell? Finally, why had Mr. Nifong failed to disclose this information for so many months, and repeatedly told the judge that there were no such results?
Looking back, defense lawyers describe Mr. Meehan’s testimony as a moment that opened a window on the tactics of a prosecutor they say is all too willing to trample state law and ethical duties to get a conviction. In the most unvarnished terms, they accuse Mr. Nifong of deliberately hiding test results — results they say further confirm their clients’ innocence. What’s more, they say that Mr. Nifong’s decision to recast his prosecution on Friday is a cynical attempt to sidestep damage from Mr. Meehan’s testimony.
Mr. Nifong said the defense attack on the DNA report revealed a ruthless strategy aimed at vilifying him and intimidating a victim of a brutal assault. “The whole point was the vilification of the district attorney, I believe,” he said during a three-hour interview in his office on Thursday.
Still, Mr. Nifong conceded he erred in not providing all of Mr. Meehan’s test results to defense lawyers months earlier than he did. “Obviously, anything that is not DNA from the people who are charged is potentially exculpatory information,” he said.
Although Mr. Nifong has taken heavy criticism in news accounts, it is not yet clear whether this error will matter much to the person whose opinion counts most: W. Osmond Smith III, the presiding judge.
Trial judges in North Carolina have broad authority to impose sanctions when prosecutors violate discovery rules. The state’s criminal discovery law requires prosecutors to share test results, regardless of whether they were delivered in writing or orally. Likewise, the North Carolina State Bar puts the onus on prosecutors to “make timely disclosure” of evidence that “tends to negate the guilt of the accused.”
If these rules are violated, the judge can dismiss charges or hold lawyers in contempt. In extreme cases, North Carolina law allows a judge to remove a district attorney from office for “willful misconduct.”
But the severity of the sanction often turns on whether the error was innocent sloppiness or a deliberate attempt to conceal evidence.
Mr. Nifong insists it was innocent, but defense lawyers are scouring transcripts of hearings and other records to build a case that Mr. Nifong’s error was in fact a calculated strategy to withhold or at least greatly delay the release of crucial evidence. Joseph B. Cheshire of Raleigh, a lawyer for one of the players, said he intended to take “specific legal steps” to seek sanctions or Mr. Nifong’s removal from the case.
It was already clear from a state laboratory report in April that none of the lacrosse players’ semen, saliva or blood was found on or in the woman or her clothes. Mr. Meehan’s firm, DNA Security, was hired by the district attorney in April to conduct more sophisticated testing.
The laboratory’s summary report described only one finding of significance: It concluded that DNA extracted from false fingernails found in a trash bin was consistent with the DNA of David Evans, a co-captain of the team and one of the defendants. Mr. Cheshire, his lawyer, has called that DNA analysis weak, saying the nails could have been contaminated by used tissues or other items carrying the players’ DNA.
The report failed to mention any results from other items tested, including the woman’s underwear, and it did not reveal that unknown male DNA had been found on them.
As Mr. Meehan and Mr. Nifong now agree, the two discussed all of DNA Security’s main findings, including those that were omitted from the final report, during two meetings in April.
Defense lawyers point to court hearings in which they repeatedly pressed Mr. Nifong to reveal all the evidence he discussed with Mr. Meehan during those two meetings.
According to transcripts of those hearings, Mr. Nifong repeatedly told Judge Smith that there was no evidence discussed during those meetings other than the test results reflected in the DNA Security summary report.
On June 22, when questioned by Brad Bannon — the discovery expert on the defense team — Mr. Nifong denied that Mr. Meehan and he had talked about anything else he had to disclose to the defense.
“The report itself they have,” Mr. Nifong told Judge Smith.
At a hearing on Sept. 22, Judge Smith asked: “So you represent there are no other statements from Dr. Meehan?”
“No other statements,” Mr. Nifong said. “No other statements made to me.”
Defense lawyers also point to a court filing Mr. Nifong signed on May 18, when he gave the defense some 1,200 pages of evidence records, including DNA Security’s 10-page report. “The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant,” Mr. Nifong said in the filing. “Should we learn of the existence of any such material or information in the exercise of due diligence, we will notify the defendant.”
Mr. Nifong acknowledged in the interview this week that he was keenly aware of the test results Mr. Meehan had omitted from his report when he signed that court filing on May 18.
He denied, though, any effort to hide the results or delay their release. He has long been known locally for giving defense lawyers open access to his evidence, even before a state law required that. And, he said, even if the test results should have been turned over months earlier, the defense still had the evidence well in advance of any trial date — which had not yet been set.
“So it’s not like this is something we discover on the fourth day of a five-day trial and say, ‘Oh, by the way,’ ” he said. “I mean, that’s not what’s going on.”
But given the volume of evidence in this case, he said he simply did not realize that he had failed to turn over the DNA results in question. “It was not something that I specifically noticed,” he said, “because if I specifically noticed it I would have dealt with it.”
On Thursday afternoon, the volume of evidence was plain to see in his office. Next to his desk, a small conference table was overrun with documents and court filings related to the case. More boxes of documents were stacked on the floor and on chairs.
“When you’re going through these pages,” he said, “and you’re numbering them and making copies, you’re not reading and understanding what’s on every single page.”
Still, Mr. Nifong’s recollection appears to conflict with Mr. Meehan’s on one crucial point. Mr. Meehan recalled that they agreed not to publish the results of unidentified male DNA in the report; but Mr. Nifong said that did not happen.
“I didn’t say, ‘Include this, don’t include this,’ ” Mr. Nifong said. He added: “I said, you know, ‘Publish the positive results,’ in other words, publish what you found. If you make a connection with something, if the evidence seems to be probative, that’s what should be in the report.”
More broadly, Mr. Nifong said, trying to explain his failure to disclose the DNA tests sooner, he had other work to attend to.
“You know, it’s not the only case I have right now,” he said. “I have two. The other one’s a quadruple homicide. If you ask me, to everybody but a reporter for an out-of-town newspaper, the quadruple homicide is probably the more significant case.
“But because we have some of these other sexy issues here,” he added, “you all are flipping out over this particular case, which is not the most significant case in our office. It doesn’t mean it doesn’t get attention. What I’m saying is in the overall pecking order of things, it’s not the most important thing that we’re doing.”
http://apnews.myway.com/article/20061223/D8M6PUQ00.html
Even Nifong supporters (how could there be any?) now back away after he drops the "rape" charge due to DNA evidence and new Magnum story that "she's no longer certain" that her alleged attackers violated her "vaginally" as she had claimed in some of her various initial accusations.
http://abcnews.go.com/GMA/story?id=2751222&page=1
I just hope that this case helps bring attention to various serious imperfections in our criminal legal system.
http://www.msnbc.msn.com/id/16328913/
Commentary by a sports columnist, who reminds us that when this story originated, everybody -- including he -- took the accuser's side, accepted without criticism the DA's claims, and railed the accused.
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