Duke Lacrosse Rape Allegation

[Soxbadger]

Jackie,

 

I think I may not have been as clear as necessary on what I meant with Finnerty. Im saying the DA would offer 2 things, 1) the assault charges being dropped, and 2) either immunity in the rape case or a vastly reduced sentence.

 

Its not just 180 days, its potentially 5-10 years that he could save himself if he is willing to play ball with the DA. Also im of the opinion that Finnerty would not even want to spend 180 days in jail, because if he goes into the pen as "the white guy who raped the black stripper" his life will be hell for those 6 months.

[jackie hayes]

Hayes,

 

The defense has a right to see the information. But the DA does not have to turn over the information "as soon as he receives it". So long as the defense gets the information with enough time to prepare for trial, it is okay. Often times a DA will show up the morning of a trial and have "new evidence". The defense will then ask for continuation so that they can look at the evidence.

 

Right now they are not even close to that stage. There have been no depositions, which is where the stripper would have to tell her story. As you can see the defense is trying to take the case to the public, so they are going to jade whatever they can when they give it over to the media. This case is some what of an aberration because generally defense attorneys will not want to show their cards this early.

 

As for the ID, it is unlikely that evidence will ever get into trial. Its hearsay through anyone else but the stripper and when she testifies she can easily explain what happened in a different way then it is on the police report. Im not exactly sure what the rules in NC jurisdiction are to police reports, but some jurisdictions do not allow them because they are based entirely on hearsay which is not allowed at trial. Another problem is because she was not under oath, they can not use the statement as a "prior inconsistent" statement for impeachment purposes, as you can not perfect the impeachment.

I didn't say he has to turn over evidence "as soon as he receives it". He has to turn it over in a "timely" manner. I also don't see why it matters, since he already HAS turned it over.

 

I saw Nifong "take the case to the public" first, so I'm not going to demand the defense attorneys heads for this. I think his actions are much more unusual.

 

From the ABA's "Model Rules for Professional Conduct", for prosecutors:

The prosecutor in a criminal case shall:

 

...

 

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Nifong was a disgrace in this respect. 70-odd interviews aren't "necessary to inform the public &c.", and he certainly shouldn't have been as inflammatory and accusatory as he was.

[jackie hayes]

Jackie,

 

I think I may not have been as clear as necessary on what I meant with Finnerty. Im saying the DA would offer 2 things, 1) the assault charges being dropped, and 2) either immunity in the rape case or a vastly reduced sentence.

 

Its not just 180 days, its potentially 5-10 years that he could save himself if he is willing to play ball with the DA. Also im of the opinion that Finnerty would not even want to spend 180 days in jail, because if he goes into the pen as "the white guy who raped the black stripper" his life will be hell for those 6 months.

She said she was 100% certain he was a rapist. If that's true, he's going to jail no matter what. I don't care if he was the "main rapist" or the 2nd rapist. If it's not, I don't believe her at all. If someone says they are CERTAIN, they damn well better be right.

[southsider2k5]

Dad saids daughter was raped with a broomstick

[Kyyle23]

Dad saids daughter was raped with a broomstick

 

The woman's father, appearing on MSNBC's "Rita Cosby Live & Direct" Tuesday night, said his daughter told him that when three team members raped and sodomized her, they also used a broom.

 

The father said he learned about the broom from others, "and then she told me afterwards because she didn't want me to know that part," he said.

 

Well, it says they also used a broom, not that they only used a broom. DNA should be found somewhere, on something. That broomstick should have her DNA on it, and she should have some sort of DNA on her from someone if she was raped.

 

And who are these "others" that are feeding her father info? She can tell her father she got raped, but cannot tell him she was sodomized as well? I know I am in no position to read her mind, but it seems strange that she would withold that info from her father if he is going to find out anyways.

 

This case gets wierder and wierder as it goes along.

[Balta1701]

Well, it says they also used a broom, not that they only used a broom.  DNA should be found somewhere, on something.  That broomstick should have her DNA on it, and she should have some sort of DNA on her from someone if she was raped. 

 

And who are these "others" that are feeding her father info?  She can tell her father she got raped, but cannot tell him she was sodomized as well?  I know I am in no position to read her mind, but it seems strange that she would withold that info from her father if he is going to find out anyways. 

 

This case gets wierder and wierder as it goes along.

So, when the charges were first filed 2 weeks ago, there were a lot of rumors that there was other DNA evidence out there waiting to come back. It's been 2 weeks, and based on current timetables, I can imagine that stuff is probably back by now. It's worth noting, I think, that no one has come forward and said "they did more testing and there's still no DNA evidence implicating my client."

[Soxbadger]

Jackie,

 

First, I dont think he violated the model rule.

 

The pertinent part:

that have a substantial likelihood of heightening public condemnation of the accused

 

Means that a prosecutor can not make statements that will make the public pre-judge the case. An example of this would be the DA saying "We have so much evidence of Finnerty's guilt that the defense team wont even know what hit them." etc. From what I have seen about the DA's remarks, he has been very careful to tailor his answers only about why he is moving forward with the case and what he is doing.

 

The key phrase is "substantial liklihood" nothing that he has said will over come that burden, because he really has not said anything that would cause the public to condemn the 3 players more than they should be. The only thing that may result in the ARDC opening up a case is perhaps the leak of the email. Im not exactly sure how that got into the public, but an email that said they wanted to "skin a stripper" is something that will cause the public to condemn and really there is no necessity to inform the public of it.

 

Second,

 

You keep relying on what she supposedly said in the line up. I already addressed how this is hearsay and probably will not be able to get into court. I also do not have the transcript so I can not see in what context or what she exactly said. The media is not very trustworthy, especially when it comes to the legal field. Most journalists are not lawyers, and do not have a sophisticated understanding of evidentiary procedures.

 

What you hear in the media is just not very reliable evidence, and I would not take that she said "100%" as fact.

[fathom]

So, when the charges were first filed 2 weeks ago, there were a lot of rumors that there was other DNA evidence out there waiting to come back.  It's been 2 weeks, and based on current timetables, I can imagine that stuff is probably back by now.  It's worth noting, I think, that no one has come forward and said "they did more testing and there's still no DNA evidence implicating my client."

 

A report earlier in the week said the next round of DNA wouldn't come back until mid-May.

[fathom]

http://news.yahoo.com/s/ap/20060427/ap_on_...HNlYwMlJVRPUCUl

 

If all three of the men that she accused back then were white, this story is going to get even uglier.

[Kyyle23]

http://news.yahoo.com/s/ap/20060427/ap_on_...HNlYwMlJVRPUCUl

 

If all three of the men that she accused back then were white, this story is going to get even uglier.

 

I was just going to post something similar. As i said earlier, this case keeps getting wierder and wierder.

[fathom]

I was just going to post something similar.  As i said earlier, this case keeps getting wierder and wierder.

 

I'll make my first and last prediction in this case: There's not a chance in hell these guys are going to be found guilty.

[Kyyle23]

I'll make my first and last prediction in this case:  There's not a chance in hell these guys are going to be found guilty.

 

I agree, but I also think the damage has been done whether a rape occurred or not. This is going to follow them around for the rest of their lives.

[fathom]

I agree, but I also think the damage has been done whether a rape occurred or not.  This is going to follow them around for the rest of their lives.

 

Well, of course. It happens in any high-profile case. Poor O.J. still has to deal with the perception that he murdered his wife

[jackie hayes]

Jackie,

 

First, I dont think he violated the model rule.

 

The pertinent part:

 

Means that a prosecutor can not make statements that will make the public pre-judge the case. An example of this would be the DA saying "We have so much evidence of Finnerty's guilt that the defense team wont even know what hit them." etc. From what I have seen about the DA's remarks, he has been very careful to tailor his answers only about why he is moving forward with the case and what he is doing.

 

The key phrase is "substantial liklihood" nothing that he has said will over come that burden, because he really has not said anything that would cause the public to condemn the 3 players more than they should be. The only thing that may result in the ARDC opening up a case is perhaps the leak of the email. Im not exactly sure how that got into the public, but an email that said they wanted to "skin a stripper" is something that will cause the public to condemn and really there is no necessity to inform the public of it.

 

Second,

 

You keep relying on what she supposedly said in the line up. I already addressed how this is hearsay and probably will not be able to get into court. I also do not have the transcript so I can not see in what context or what she exactly said. The media is not very trustworthy, especially when it comes to the legal field. Most journalists are not lawyers, and do not have a sophisticated understanding of evidentiary procedures.

 

What you hear in the media is just not very reliable evidence, and I would not take that she said "100%" as fact.

"...because he really has not said anything that would cause the public to condemn the 3 players more than they should be..." It's telling that you believe you already know how much condemnation they "should" get.

 

You're wrong about Nifong. He hasn't just explained what he's doing, he's announced to an already edgy community that this was a racial crime. He didn't limit his comments to what was "necessary" -- 70-some interviews were necessary, when there was nothing the public could do? Come on.

 

You are also wrong about the email. It was not leaked, it was included in the search warrant used to search the sender's dorm room, which is in the public record. There's no controversy there.

 

You seem to be the only one who thinks that the defense bamboozled some dumb reporter into backing up their story. She doesn't have to understand "evidentiary procedures", herself, she just has to be able to read. It's not that tough to figure out if they did or did not show the accuser only the lacrosse pictures. Then someone who does understand proper identification procedures can say if that was proper. (I haven't heard anyone argue that it is.) So as long as she understands English, I'd say she's credible on this.

 

Whether it does get admitted is uninteresting to me. I readily admit that even if the players are completely innocent, and Nifong has jack s***, they may still be convicted, with the emotion aroung this case. It would make a joke of our legal system, but yeah, it could happen.

[Soxbadger]

Well since you were so kind to provide us rule 3.8, lets look at rule 3.6 which governs trial publicity in general.

 

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(B) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

© Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject

 

If you look at most of the exceptions, those are the exact facts the prosecutor is giving out. He is allowed to state all facts that are public record, then it says he may make any statement that is necessary to " protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." Since the defense team has opened the door on the victim, the prosecutor is given even more room to respond.

 

It also says he may say any step in the litigation process, which means he can give as many interviews as he wants. Its not the quantity, it is what they have said.

 

And also here is the comment about timing of the case, which is important because this case is not near trial.

 

Timing of the Statement

 

Whether the lawyer's statement is the subject of a disciplinary proceeding or a motion in a pending proceeding, its timing has proved to be the most important criterion in assessing its potential for prejudice. See, e.g., United States v. Bingham, 769 F.Supp. 1039 (N.D.Ill.1991) (lawyers representing members of Chicago street gang violated local rule regarding public discussion of criminal litigation by making statements on eve of jury selection, criticizing judge's decision to impanel anonymous jury); State v. Grossberg, 705 A.2d 608 (Del.Super.Ct.1997) (counsel for high-school students charged with murdering their newborn "timed his statements for maximum impact to coincide with his entry into the case.... He knew or should have known that the change in counsel, coupled with [a televised] interview of his client, would rekindle public interest and provide him with a significant audience within the venire."); Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Visser, 629 N.W.2d 376 (Iowa 2001) (single newspaper article generated by lawyer's letter published almost two years before in city more than fifty miles from trial not reasonably likely to have affected proceedings; court assessed its potential both prospectively and retrospectively); Commonwealth v. McCullum, 602 A.2d 313 (Pa.1992) (nine-month period between publicity and trial sufficient "cooling-off" time to dissipate any prejudice); see also Guerrini v. Statewide Grievance Comm., No. CV 000503192, 2001 WL 417337 (Conn.Super.Ct. Apr. 3, 2001) (insufficient evidence of prejudicial potential of publicity generated by lawyer's remark to media, several years before trial, that plaintiff's injury from headboard in motel room was result of "serious acrobatics").

 

Note the 9 month time period between trial and publicity was sufficient "cooling" off time. This case is not near to trial so it is possible that even if he does say something really bad, that a court could find that the time between the statement and trial was far enough apart that it no longer would have a bearing on the case.

 

Present case law seems to suggest that it is very hard for a prosecutor to charged with either a violation of rule 3.6 or 3.8.

Edited April 28, 2006 by Soxbadger

[bmags]

how long before this all becomes funny? 2 years...lol yeah it'll be funny then

[jackie hayes]

Well since you were so kind to provide us rule 3.8, lets look at rule 3.6 which governs trial publicity in general.

If you look at most of the exceptions, those are the exact facts the prosecutor is giving out. He is allowed to state all facts that are public record, then it says he may make any statement that is necessary to " protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." Since the defense team has opened the door on the victim, the prosecutor is given even more room to respond.

 

It also says he may say any step in the litigation process, which means he can give as many interviews as he wants. Its not the quantity, it is what they have said.

 

And also here is the comment about timing of the case, which is important because this case is not near trial.

Note the 9 month time period between trial and publicity was sufficient "cooling" off time. This case is not near to trial so it is possible that even if he does say something really bad, that a court could find that the time between the statement and trial was far enough apart that it no longer would have a bearing on the case.

 

Present case law seems to suggest that it is very hard for a prosecutor to charged with either a violation of rule 3.6 or 3.8.

The prosecutor's client is the state, not the accuser. So questioning the accuser's credibility does not give "more room to respond".

 

He stated clearly that this was a racially tinged crime. Meaning that he was certain the perpetrators are white. 70+ interviews or 1, that's pretty damn leading.

 

Moreover, he certainly didn't limit his public discourse on the case to what was "necessary".

 

The 9 month period -- in the particular case you cite, it was deemed sufficient. In this case, I don't think it will be. It's silly to think that there's some fixed limit over which all is forgot, for every single case (and your quote does not support that interpretation). Would 9 months be sufficient in a Nixon trial, or an OJ trial?

[jackie hayes]

http://news.yahoo.com/s/ap/20060427/ap_on_...HNlYwMlJVRPUCUl

 

If all three of the men that she accused back then were white, this story is going to get even uglier.

Nope, they were black.

[samclemens]

http://www.foxnews.com/story/0,2933,193495,00.html

 

ive been calling this whole thing complete b.s. from the start, and everything that comes out just seems to back me up. if it walks like a duck and talks like a duck, how long before it's called a duck?

[Rex Kickass]

Gang rape isn't lightning. It can strike the same person twice.

 

Seriously, you're sitting there and saying it was bulls*** and thinking "if it was real the first time, why wouldn't she have pursued it."

 

I think the reaction from a lot of people on these boards proves exactly why she wouldn't.

[Soxbadger]

Jackie,

 

I responded to you with legal precedent and the fact that this rule is almost never applied to prosecutors and has been severely attacked by almost all legal commentators. There is a balancing with a prosecutors first amendment right and with the accused right to a fair trial.

 

So far you have not given me any appellate level or higher case law that supports your reading of the ABA rule. With out case law to further support your stance, I just am not going to waste my time arguing opinions. You believe one thing, from what my research has revealed the case law of the United States stands for another.

 

If you would like to get in a legal debate, then please bring precedent. We all have our opinions, but in the legal community it is not my opinion that matters, it is the opinion of the higher courts that is binding precedent. While you can always argue in good faith for the over turning of a case or law, it is a very hard mountain to climb, especially when you do not even have persuasive authority. Persuasive as opposed to binding, is when a court sits in a different jurisdiction than the court you are in. IE We are in the 7th circuit, and I cite a 2nd circuit case in my appellate brief.

 

Anyways, if you do not have access to a law library, westlaw, or lexisnexis, I would suggest using one of the free sites on the web, findlaw, or any other of the free sites that are readily available to non-lawyers.

 

Im going to end with, from my understanding of the rule, the prosecutor did nothing wrong. You mention the OJ case, and that case had much more publicity than this case and no one even mentioned ARDC complaints. If what the prosecutor was doing was really that bad, the actual Defense lawyers would be filing an ARDC complaint (they can not threaten an ARDC complaint as that is against the rules). Since they will not file one, I think it is safe to say that what the prosecutor is doing does not violate rule 3.8 because of the exceptions outlined in 3.6, and the subsequent case law.

 

If you find a case youd like me to look at please provide the cite and Ill do it, otherwise Ill leave it at we have different opinions.

[jackie hayes]

Jackie,

 

I responded to you with legal precedent and the fact that this rule is almost never applied to prosecutors and has been severely attacked by almost all legal commentators. There is a balancing with a prosecutors first amendment right and with the accused right to a fair trial.

 

So far you have not given me any appellate level or higher case law that supports your reading of the ABA rule. With out case law to further support your stance, I just am not going to waste my time arguing opinions. You believe one thing, from what my research has revealed the case law of the United States stands for another.

 

If you would like to get in a legal debate, then please bring precedent. We all have our opinions, but in the legal community it is not my opinion that matters, it is the opinion of the higher courts that is binding precedent. While you can always argue in good faith for the over turning of a case or law, it is a very hard mountain to climb, especially when you do not even have persuasive authority. Persuasive as opposed to binding, is when a court sits in a different jurisdiction than the court you are in. IE We are in the 7th circuit, and I cite a 2nd circuit case in my appellate brief.

 

Anyways, if you do not have access to a law library, westlaw, or lexisnexis, I would suggest using one of the free sites on the web, findlaw, or any other of the free sites that are readily available to non-lawyers.

 

Im going to end with, from my understanding of the rule, the prosecutor did nothing wrong. You mention the OJ case, and that case had much more publicity than this case and no one even mentioned ARDC complaints. If what the prosecutor was doing was really that bad, the actual Defense lawyers would be filing an ARDC complaint (they can not threaten an ARDC complaint as that is against the rules). Since they will not file one, I think it is safe to say that what the prosecutor is doing does not violate rule 3.8 because of the exceptions outlined in 3.6, and the subsequent case law.

 

If you find a case youd like me to look at please provide the cite and Ill do it, otherwise Ill leave it at we have different opinions.

I mostly am here to discuss the Sox, so a million little apologies if I don't write a brief on every point.

 

What I pointed out was this -- your 9-month thing referred to a specific Pennsylvania murder case. It does not appear to say that 9 months is always and everywhere the very essence and definition of sufficient 'dissipation' time. This case has received far more publicity than most cases, even murder cases, so I don't see any reason to believe that the same standard should apply.

 

If you want to provide the exact language which supports your assertion that the court held that 9 months is the immutable standard for 'enough time', be my guest. But you did not cite that above. And without that, it's merely your "opinion" that the same time frame applies.

 

If that were generally accepted, there would never be any reason to move a trial. Just wait nine months and, poof, prejudice is gone. Yet trials still get moved. Weird. And I can't figure out why arguments were heard about actions more than a year before the trial, almost 10 years after the Pennsylvania Supreme Court already decided the question for the rest of us.

 

As for your challenge, sorry, I do have better things to do than conduct full historical investigations of past murder cases to determine exactly how much publicity requires a 9-month wait, 1-year wait, etc. And I don't have to if all I want to do is point out that your precious precedent is not principle.

 

I know FindLaw well enough, thank you, and I know they have message boards over there. Is it just too difficult finding people there to condescend to?

[Balta1701]

So, to all the folks who said that the D.A. had no case, that he was just doing it to get elected, that she was making the whole thing up, or whatever else people said to try to bash the people bringing the charges?

 

Forensic scientists might have found a DNA link between a Duke lacrosse player and the female stripper who alleges she was raped at a players' house party March 13-14, the Durham Herald Sun reported Thursday.

 

Scientists have found tissue under a fingernail of the woman, which scientists concluded originated from the same gene pool and was "consistent" with one of 46 lacrosse players who gave DNA samples, the Herald Sun reported, citing sources.

 

The finding could be the first DNA evidence possibly linking the so-called exotic dancer and a lacrosse player. It will be impossible to match the tissue DNA with the alleged attacker with 100 percent certainty, the Herald Sun added.

 

The scientists also said the tissue sample DNA did not match the other 45 students, the newspaper said.

 

The stripper told police that she clawed at three attackers as they raped and sodomized her at the party.

 

The sources also told the Herald Sun that a male pubic hair was also found and possible linked to the case, but because no identifiable DNA was found because the hair lacked a root. But the sources also said the pubic hair was found to have come from a white male.

Forensic evidence matching a Duke Lacross player. Including DNA. Yeah. Remember how some of us (me) were saying that we should reserve judgement until all of the evidence was back and released? Yeah.

[EvilMonkey]

So, to all the folks who said that the D.A. had no case, that he was just doing it to get elected, that she was making the whole thing up, or whatever else people said to try to bash the people bringing the charges?

 

Forensic evidence matching a Duke Lacross player. Including DNA. Yeah. Remember how some of us (me) were saying that we should reserve judgement until all of the evidence was back and released? Yeah.

I saw the words 'might', ' possibly linking ', 'impossible to match the tissue DNA with the alleged attacker with 100 percent certainty', 'did not match the other 45 students'and 'no identifiable DNA was found because the hair lacked a root'. It also doesn't say if the supposed match was from one of the players she named, or someone else. And because a pubic hair from a 'white male' was found doesn not mean if was from ANy of the people there. If I recall, she was a working girl, and quite possibly could have been at a party before theirs. There is an awful lot of ifs and maybes, and precious little dna, especially since she insists that she 'clawed at three attackers as they raped and sodomized her'. A little early to start trying to serve crow.

[Balta1701]

I saw the words 'might', ' possibly linking ', 'impossible to match the tissue DNA with the alleged attacker with 100 percent certainty', 'did not match the other 45 students'and 'no identifiable DNA was found because the hair lacked a root'. It also doesn't say if the supposed match was from one of the players she named, or someone else. And because a pubic hair from a 'white male' was found doesn not mean if was from ANy of the people there. If I recall, she was a working girl, and quite possibly could have been at a party before theirs. There is an awful lot of ifs and maybes, and precious little dna, especially since she insists that she 'clawed at three attackers as they raped and sodomized her'. A little early to start trying to serve crow.

Yes, you're right it is, and they may very well still be able to wind up getting off, as they're gonna be able to afford some nice attorneys.

 

But that doesn't mean it wasn't way too early for people to say that the DNA evidence exonerated the Duke players, and that the DA was only bringing the charges to win an election. Which a great number of folks already decided without having a clue what other evidence might have been out there.

 

The only thing I've been saying in this case is that people shouldn't jump to conclusions about the D.A.'s motives until they know all the evidence, and people did so anyway.

 

Now, the case is actually one that is winnable for a D.A. He has some physical evidence, and presumably he has to have at least 1 witness in addition to the attacker before he would have considered bringing a case. Now, the question will be whether or not he'll be able to get one or more of the students to plea bargain their way to a lower sentence by turning evidence on the rest, because he has the makings of a winnable case.

 

So all I was saying, and the point I feel validated on, was that it was too damn early to jump to conclusions. I don't know if they're guilty or not, and a jury will decide that. But a bunch of people here already judged the D.A. to be the one at fault, and it turned out that he had more evidence than we knew about.