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(UPDATED) Does this make any sense to anyone?
Posted by: McQ on Sunday, October 29, 2006

In the Duke Rape case:
The district attorney prosecuting three Duke lacrosse players accused of raping a woman at a team party said during a court hearing Friday that he still hasn't interviewed the accuser about the facts of the case.

"I've had conversations with (the accuser) about how she's doing. I've had conversations with (the accuser) about her seeing her kids," Mike Nifong said. "I haven't talked with her about the facts of that night. ... We're not at that stage yet."

Nifong made the statement in response to a defense request for any statements the woman has made about the case.

"I understand the answer may not be the answer they want but it's the true answer. That's all I can give them," the prosecutor said after the hourlong hearing.

Defense lawyers said outside court that they found Nifong's statement surprising.

"One of the most interesting things to me of course is Mr. Nifong did admit that he in fact has basically never talked to this woman and has absolutely no idea what her story is, and yet he has chosen to continue to go forward with this case," defense lawyer Joseph Cheshire said.

Nifong said none of his assistants have discussed the case with the woman either and only have spoken with her to monitor her well-being. They have left the investigation of the case to police, he said.
Phenomenal. Yet he had no problem taking out indictments against the three men in question.

UPDATE: Daily Pundit's take. More from Volokh with this from a prosecutor in the comments:
I've been a prosecutor for 31 years. The police do investigate, but the prosecutor makes the charging decision, and at least here (Wayne County, including Detroit) it would be unheard of to make the charging decision in a serious assaultive case, particularly a case of this sort, without interviewing the complainant (other than a homicide, of course). I've never heard of such a thing.
UPDATE II: More:
The second dancer in the Duke rape case has said for the first time that the accuser told her to "go ahead, put marks on me" after the alleged attack.

Dancer Kim Roberts made the new allegation — which she has not shared with authorities — in an interview with Chris Cuomo that aired today on "Good Morning America."

Roberts' allegation comes after Durham District Attorney Mike Nifong's admission in court last week that he has not yet interviewed the accuser "about the facts of that night."
 
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It makes perfect sense if you have any experience with corrupt prosecutors.
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
It makes perfect sense. If he knew the case was faulty, he could be sought for malicious prosecution or at least get brought up before the Bar.

By not talking to her, he could be the great liberal avenger during election time and not receive an repercussions for it.
 
Written By: jpm100
URL: http://
I’m sure as heck not a lawyer, but I presume these boys are going to get a huge settlement out of the City of Durham before this is over. Of course, if it doesn’t come out of Nifong’s pocket, given his behavior up to now, he probably doesn’t care.

Now, in any rational world, it would still mean Nifong got fired and that he would never work as a prosecutor again anywhere in the nation. Somehow that seems like too much to hope for.
 
Written By: Billy Hollis
URL: http://
kyle N: I am not sure that you can avoid a charge of prosecutorial misconduct by simply not doing your duty. In fact, I would argue that by admitting that he has not interviewed the principal witness and the victim of the alleged crime, the District Attorney has admitted to a failure that virtually seals the case against him! What evidence did he submit to the grand jury, anyway? Finally, when does he think he will finally reach the proper time to interview his witness/victim as to the events of that evening....when she first takes the stand?
 
Written By: RAZ
URL: http://
"I haven’t talked with her about the facts of that night. ... We’re not at that stage yet."

Nifong said none of his assistants have discussed the case with the woman either and only have spoken with her to monitor her well-being.
For a lawyer, there is a difference between not talking to a witness and not knowing what she has to say. A big difference. I’m no fan of Nifong, but he is doing exactly the right thing.

In most criminal cases, a witness or victim statement is taken by an investigator, whether police or private, and not by the lawyer himself. In a high profile case, a District Attorney or a Deputy District Attorney would be very careful to not talk directly with the witness about the facts of the case. Indeed, he might not do so until the morning of trial, if at all.

Now, why would that be the case? Well, it forestalls the possibility that the lawyer could be turned into a witness. If the victim tells the prosecutor something, and then a dispute later develops, for whatever reason, over what was said, the prosecutor could himself be turned into a witness. And most states have an ethical rule that forbids lawyers from being both a witness in a particular case, and a lawyer. This is a good article from the North Carolina Bar on the subject.

If the defense got a whiff that Nifong has talked to the victim, then they could subpoena him as a witness. He then might have to quit the case. Indeed, look at why Nifong said what he did.
Nifong made the statement in response to a defense request for any statements the woman has made about the case.
If Nifong said he had spoken with with the woman about the case, the defense would sub him in a second, possibly removing him from the case. And perhaps ending it.

Nifong knows the victim’s statement inside and out, assuming he has halfway competent investigators that he can trust. He knows what she has said about the case. He just hasn’t spoken with her directly, that’s all.

McQ, the game is going on at another level above your head, one you are clearly not acquainted with. But, and not to be snarky, how many times has that been true.

Oh, and then we get Billy’s brilliant analysis:
Now, in any rational world, it would still mean Nifong got fired and that he would never work as a prosecutor again anywhere in the nation. Somehow that seems like too much to hope for.
Actually, it would mean no such thing. Nifong is being smart here. His only gaffe was probably admitting publicly that he hasn’t spoken with the victim. he probably should have said no comment. But in light of the publicity in this case, he probably wanted to be out front on this issue. It’s a close call. But not talking to the victim, at least for now, is the smart thing to do.

Stick to bashing non-Bush lovers, Billy. You’re right, you are no lawyer.
 
Written By: mkultra
URL: http://
You’re right, you are no lawyer.
so you are one, then?

Check out this thread at Volokh, with lots of comments from real lawyers who don’t seem to think that "he is doing exactly the right thing." I know it shouldn’t come as a surprise to me that you are talking out of your can again, but somehow it’s always jarring.
 
Written By: jinnmabe
URL: http://
Check out this thread at Volokh, with lots of comments from real lawyers who don’t seem to think that "he is doing exactly the right thing." I know it shouldn’t come as a surprise to me that you are talking out of your can again, but somehow it’s always jarring.
So I checked it out, as you requested. Here is the just the second comment, in its entirety:
In my jurisdiction, prosecutors rarely interview victims of crime prior to charging the case and rely on the police interviews of the subject. If there are additional questions that need to be asked, prosecutors send investigators or the police back to do follow up. It’s rare to have a meaningful discussion of the facts of the case until the eve of trial when the prosecutor preps the victim for trial. Even then, an investigator or police detective will be present.

I’d imagine that this is almost universal - a prosecutor does not want to become a witness in his own case.
Gosh, you know, that sounds like what I said. Thanks for backing me up. Again, I’m going to assume that you are also not a lawyer. Why don’t you tell me how many cases you have tried. Ever tried a rape case? Huh?

But the question, as was submitted by McQ, was as follows:
Does this make any sense to anyone?
McQ asked a basic question - does this make sense? Of course it does. Now, having said that, can lawyers disagree over this tactic? Of course they can. But suggesting, as you and McQ do, that Nifong’s statement makes no sense bespeaks an ignorance that is so typical of those on the political right - so typical - that it is hard to respond without contempt.

So I won’t.
 
Written By: mkultra
URL: http://
It seems quite clear, that this case was never based in fact. On that basis, then, why would the prosecutor wish to talk to the accuser?

 
Written By: Bithead
URL: http://
Actually, it would mean no such thing. Nifong is being smart here.
Right, prosecuting a rape case with no evidence other than a passel of contradictory "victim" statements is just freaking brilliant. Move over, Clarence Darrow. You must be related to smarts like that, mkultra.
 
Written By: Pablo
URL: http://
Nifong just shifting blame for failed prosecution on to police in a classic corporate type CYA move. ’I had been given wrong information, talk to the police’ type move. Hopefully this will be the end of his sterling political career. Unfortunately police will be stung to this type of crime in the future. Just shows how far some will go for free plublicity prior to an election. Hopefully one of the defendents sues not only Durham but also Duke for a large and costly payout.
 
Written By: coaster
URL: http://
Well, now that it’s out there, being high profile and all, we can be sure we’ll get some real lawyers, known lawyers, on camera, along with talking heads.

Be interesting to see how well MK does, and the others do.
 
Written By: looker
URL: http://
The case is almost entirely about the alleged victim’s credibility, which appears to be very much in doubt. It is no less than a dereliction of duty for the prosecutor not to meet with the alleged victim to assess her credibility. The prosecutor cannot be called as a witness unless there is independent information that the alleged victim told the prosecutor something other than what she testifies to. In such circumstances, the prosecutor shouldn’t be proceeding with the case anyway.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
The only question subject to reasonable doubt is whether Nifong will have his law license two years from now.
 
Written By: Geek, Esq.
URL: http://
Stick to bashing non-Bush lovers, Billy. You’re right, you are no lawyer.
Nice to know some things never change. mk, your BDS is still frothing, for example. Since we’ve been over that ground plenty of times before, your attempt to repeat the big lie is not worth responding to.

On the fact that I’m not a lawyer, I’m actually rather proud of that. But there are some lawyers that agree with me on this. I’m sure I could find more if I looked, but those two are just the ones I’ve run across in the last week.

And of course, the most reliable measure of whether I’m right is whether you disagree with me. So let’s just put things on the line here, shall we? I believe that:

#1 - the case will never go to trial, because the charges will be dismissed before then

#2 - the City of Durham will get sued

Those are in the "for sure" category for me. In the "highly probable" category are the boys being awarded damages and Nifong losing his job.

So, Mr. M.K. Brilliant Attorney. Put down your predictions, if you have any confidence in your analysis. I’ll bookmark this thread so we can revisit your predictions in the future. If you make any, which I suspect you won’t, since you don’t like being tied down to definite consequences of your rantings.
 
Written By: Billy Hollis
URL: http://
In a high profile case, a District Attorney or a Deputy District Attorney would be very careful to not talk directly with the witness about the facts of the case. Indeed, he might not do so until the morning of trial, if at all.
This prosecutor (i.e. Linda Fairstein, who headed the Manhattan District Attorney’s Sex Crimes Unit for more than two decades) says exactly the opposite. When told that Nifong had yet to interview the accuser, Ms. Fairstein said ""It belies anything a prosecutor would do before making charges."

As usual, MK displays certitude on something that there seems to be a significant amount of disagreement. Apparently some prosecutors don’t want to talk to witnesses (judging by some of Volokh’s commenters) and others do. So much for liberals appreciating nuance.
 
Written By: jt007
URL: http://
Hehheh Billy, you mean like his predicting our demise in Iraq due to sectarian violence 3 years ago?
 
Written By: looker
URL: http://
I can not believe ABC news got Linda Fairstein to comment on a rape case. She is the last person on earth who can comment on a rape case with any authority.
Linda Fairstein knows all about railroading a rape suspect.

Her victim, Oliver Jovanovic is currently suing NY for malicious prosecution and abuse of process and violation of his federal constitutional rights.

Read the opinion here overturning the claim of prosecutor immunity.

And this is an EXPERT to the media.
 
Written By: Paul L.
URL: http://kingdomofidiots.blogspot.com/
Hehheh Billy, you mean like his predicting our demise in Iraq due to sectarian violence 3 years ago?
I was thinking more along the lines of his confident assertion of Cheney’s imminent indictment. After all, he’s a lawyer. You’d think his opinion on such matters would reflect some special expertise. Apparently not.
 
Written By: Billy Hollis
URL: http://
Oh, and notice that the challenge to make predictions to match mine is still ignored.
 
Written By: Billy Hollis
URL: http://
This is the best analysis of the Duke rape case that I have seen:

Case Narrative
 
Written By: Aldo
URL: http://

 
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