Thursday, July 10, 2008

In Addison's Motion: "a typo" or "a clanger?"

This post builds on these two post: A clanger in the Addison Motion to Dismiss (7/7/08) and More about the Addison Motion clanger. (7/8/08)

If you haven't already read them and their threads, I encourage you to do so.

Moving on - - -

Both posts include the following from attorney James Maxwell's Motion to Dismiss filed on behalf of Durham Police Sgt. David Addison and three other DPD members (two sworn, one civilian) :

after March 21 (one week after the alleged events had occurred), none of these Plaintiffs were even considered a part of he (sic) ongoing investigation.” (emphasis mine)
A commenter asked whether “the 3/21 date [could] just be a typo -- and the intended date be after the Evans indictment -- when Nifong said something to the effect that there were no more suspects?"

That’s a fair question many reasonable people will ask.

I’ll respond to it here and hope I convince the questioner and other reasonable people that, while “the 3/21 date” may be a typo, it’s also a clanger: a conspicuous mistake whose effects reverberate beyond the immediate circumstances of the mistake.

Let’s begin by granting for purposes of this post the date was a typo and that attorney Maxwell really meant to state a date on or after Nifong said the Plaintiffs were not suspects.

Nifong made such a statement on May 16, 2006, the day he sought and obtained the indictment of David Evans whom he knew then was innocent of the charges brought in the indictment. This from on May 16, 2006:
Nifong said in a statement that there will be no more charges in the case.

"At the outset of this investigation, I said that it was just as important to remove the cloud of suspicion from the members of the Duke University lacrosse team who were not involved in this assault as it was to identify the actual perpetrators," Nifong wrote. "For that reason, I believe it is important to state publicly today that none of the evidence that we have developed implicates any member of that team other than those three against whom indictments have been returned."
Now let’s allow, again only for purposes of this post, that Maxwell files an Amended Motion to Dismiss in which he tells the court and all other parties to the suits something like this:
”I didn’t mean to say the Plaintiffs weren’t considered part of the ongoing investigation after March 21. I meant to say they weren’t considered part of the ongoing investigation after May 16.
There’ll be reverberations from that.

Consider just some of what Maxwell will be conspicuously acknowledging on behalf of his clients:

The Plaintiffs were considered suspects after March 28, the day Nifong learned from the state lab the DNA testing was negative for the Plaintiffs and the rest of the 46 lacrosse players tested (Clang!).

They were considered suspects after April 4 when none of the Plaintiffs were picked out in the rigged photo lineup by false accuser Crystal Mangum (Clang!).

The Plaintiffs were even considered suspects after DNA Securities' Dr. Meehan told Nifong and Durham Police investigators Gottlieb and Himan his testing produced positive matches for one of Mangum's "drivers" and four unidentified males, but NO positive matches for the Plaintiffs or any of their teammates. (Clang!)

With the hypothetical Amended Motion we're considering here, Maxwell will be reminding everyone that his clients, the Defendants, treated the Plaintiffs as suspects throughout the events we've just read.

And he'll be telling everyone, particularly judge Beaty whose duty it will be to read and rule on the Amended Motion, that Maxwell's clients didn't stop treating the Plaintiffs as suspects until the day Nifong and the Durham Police investigators secured David Evans indictment.

That was a shocking injustice judge Beaty has no doubt known about since April 2007 when NC attorney general Roy Cooper declared Evans and the two other Duke lacrosse players innocent.

An Amended Motion such as the hypothetical one we've considered will remind Beaty of the Duke lacrosse investigative travesties and injustices. So too will whatever response the Plaintiff's attorney, Bob Ekstrand, makes to Maxwell's March 21 reference

I hope you agree Maxwell dropped a clanger.


Anonymous said...

Either way you look at it, Maxwell is up the creek without a paddle. However, do you think that he will be allowed a do-over since it is Durham?

Anonymous said...

John -

Great analysis. You won't see that in the MSM for which these cases no longer exist.

Jack in Silver Spring

Anonymous said...

I'm the commenter that suggested 3/21 was a typo -- only because that particular date is so obviously wrong and so easily disproved.

Even tho Nifong declared them non-suspects on 5/16, the team continued to be the target of Nifong, Duke, the city and the media.... an example -- the subpeona for FERPA-protected cardkey data (that Duke had already and illegally released) came after 5/16, I believe. Of course the city, etc. will claim that the 4/4 photo ID session and the subpeona of the card key data was merely to ID witnesses, not suspects. Ha!

I don't believe that any of the laxers felt free from "investigation" before Cooper declared the case a hoax.... after all Wilson was still 'on the case' as late as Dec 2006... What would Nifong have done if the false accuser had chosen new targets at that time??

Anonymous said...

Good analysis, John. No doubt this is a clanger. Expect more as the case proceeds for there is no way to avoid them. There are just way too many inconsistencies between the explanations received to date from the Defendants and the facts, which are now well documented. Many more clangers to come. Expect to see more cracks in the Liberty Bell.

Ex-prosecutor said...

I cannot recall well all that went on between March 21, as of when the plaintiffs were not part of the investigation, and May 16, when Mr. Nifong said that no others would be charged. However, by making this claim as to the status of the plaintiffs on March 21, their lawyer may have been continuing a fiction often employed by police officers.

When police activities following a crime go from investigatory to accusatory, various rights attach to the suspect. If, for instance, a wife is found dead, officers often will avoid treating the likely killer, the husband, as a suspect, because they want to question him as a witness (so he won't have to be advised of his Miranda rights) rather than as a suspect (when he will) After being reminded that their statements can be used against them, that they have a right to counsel, and to refuse to answer questions, persons often will clam up.

So, to get a husband talking, officers will claim that he was not a suspect and could have left the police station at any time.

As to the March date set out in the Addison brief, it may have been a mistake or a use of police fiction as to the difference between a witness and a suspect. However, even if the latter is the case, I don't think the defendants will helped. As I recall, during the two months after the March date, the Durham police and Mr. Nifong continued an active but fruitless investigation of which these plaintiffs obviously were subjects. The officers just didn't want to recognize the constitutional rights of the plaintiffs.

Either explanation is untenable.

God's own drunk and a fearless man said...

Don't forget that all 46 players included in the NTO were named as suspects in that NTO:

"I have reasonable grounds to suspect that the person named or described [on the reverse] committed the offense".

False on its face since we were down to 3 alleged assailants at that time, yet all were named.