Duke lacrosse: How the DA and some police misled us

(Welcome visitors from Court TV. I post often on the Duke lacrosse case, including media coverage.)

Yesterday was a very bad day for DA Nifong and the Durham Police but it may turn out to be a very important day for people who only want justice to be done in the Duke lacrosse case.

From today's Durham Herald Sun:

Officer's 'omissions' targeted in lacrosse motion

The H-S story begins:

The exotic dancer who has accused three Duke lacrosse players of gang-raping her was drinking while taking medication that night, and had sex with at least four men and a sexual device in the days immediately leading up to the off-campus party, according to court papers filed Thursday.

And despite what Durham police have contended, a medical examination showed no signs of the sort of sexual or physical attack of which the dancer complained, according to the motion filed by defense attorneys for Reade Seligmann.

Among other previously undisclosed details, the motion says the woman at one point accused her female dance partner of helping the lacrosse players rape her and of stealing her money. [...]

Lawyers Kirk Osborn and Ernest Conner contend in the motion that police Investigator Benjamin Himan and the Police Department illegally and deliberately withheld those and other details that were damaging to their investigation.(bold added)

For example, they say, Himan knew but did not mention in a probable-cause affidavit that two examining physicians said the dancer complained only of vaginal rape, even though some charges in the case are linked to allegations of oral and anal penetration.

Himan also neglected to note that the accuser told one doctor she was not hit and did not complain of any pain, or that she told the sexual assault nurse examiner she was not choked, according to the documents.

That conflicts with statements from police that the woman was kicked, strangled and beaten while being sexually assaulted.

Police officials wouldn't respond Thursday to questions about the documents.

"The Durham Police Department is not commenting on any specifics of the Duke lacrosse case," said police spokeswoman Kammie Michael.

The defense lawyers say the omitted information is critical to the case. Had it been included, they contend, police may not have gotten permission to perform a photo lineup that led to charges against three team members. [...]

There's more and I'm sure you'll read it all.

What we're learning now fits with many posts you've read here. For example, "Duke lacrosse and bathroom safety," pointed out the impossibility of a gang-rape occurring in a bathroom and an alleged resisting victim and her alleged attackers not being injured in the process. It also asked why the alleged attackers would take a woman they were planning to rape to a bathroom instead of one of the house's three bedrooms.

A lot more questions need to be asked, but first a few words for those who'll be saying "this is coming from a defense attorney and they're supposed to say whatever helps their clients."

Everything in Osborn's filings he secured from Nifong's office. That includes DPD material some or all of which could be wrong.

OK, but if it is, than where's the accuser's case?

And remember this: some of the material most damaging to Nifong's prosecution/persecution comes from Duke Medical Center records.

Now questions:

Why did DA Nifong withhold facts we're just learning now? Is that accepted procedure for a North Carolina District Attorney? What will the court say when it learns Nifong withheld the medical records from it?

The H-S reports:

If Himan had been forthcoming in an affidavit seeking the lineup March 23, (the attorneys say, Superior Court Judge Ron Stephens would have had no legal basis for allowing the photographic identification procedure in the first place.

Many weeks ago I said we should be calling this the Mike Nifong case.

It's reasonable today for everyone, especially well-intended people who once thought the players guilty of a gang-rape, to ask Nifong to explain to the community just what he did and why.

And it's reasonable to ask what courts and the North Carolina State Bar Association will say about what Nifong has done.

Yesterday, Nifong had no comment.

But he's a public official and an officer of the court sworn to uphold justice. Nifong needs to tell the public and the courts what he's done. It's the least he owes people who care about justice.

Betsy Newmark has an excellent post on all of this. I'm sure there will be others today and I'll update here this afternoon.

Meanwhile, say a quiet thank you, even a prayer, to our founders who passed to us such wonderful legal standards as presumption of innocence, accusation is not proof of guilt, and it is for that accuser to prove the charges.

The Herald-Sun article is here.