I’m not one to say, “told ya so,” but…... hey, we’ll see what pans out and what doesn’t.

Dead Wrong. Case Over. Per ABC news

http://abcnews.go.com/GMA/LegalCenter/story?id=1858806&page=1

Chris….I gave you this bombshell very early yesterday due to your fair and balanced coverage.

Ah, but perhaps Seligmann’s alibi is formidible after all. See the ABCNews story at http://abcnews.go.com/GMA/LegalCenter/story?id=1858806&page=1

If this pans out, then I think this is an “oops.” Good thing I never say “told ya so”!

Maybe you should switch the title to Freedom Cab for Seligmann

Game, Set, Match.

I see you beat me to it, but there, I found the story on my own and was posting it when you beat me, so at least that should count for something.

Yeah, I’d say that the DA needs to rethink this… I hear it’s difficult to rape someone when you’re all the way across town at the time.

I bet he thanks his lucky stars he went for takeout…. man oh man!

Yeah, about the only thing better would be if it was an ATM in New Jersey he was at, but I think this will work!

And that timeline is nailed down, right? There’s no way for the DA to say, well, let’s just move the times back half an hour for everything. I know there are time-stamped photos, but I assume witness accounts also back up the chronology….

Exactly…..He is also one of the few kids who keeps his ATM receipts.

This DA is beyond reckless and most likely incompetent. Wouldn’t you check out if a player had an alibi before charging him in front of the world? This is JV stuff. Given the stakes I would do a bit more due dilligence.

But, in the DA’s defense, none of the players were talking, making it difficult to know beforehand which ones had alibis and which ones didn’t. Here’s a question I have: how normally do prosecutors/police go about confirming background info if no one is talking? Here, they couldn’t go and ask the players directly who was at the party and who wasn’t (remember the fiasco when they tried: all the players had counsel, and the investigators sidestepped counsel for direct contact…ooops), when none were willing to subject themselves to police questioning. So what should the DA have done in this case? Not charge anyone?

I don’t know what the DA should have done. I guess to at least make it appear to the angered Durham community that he is pursuing this case with due dilligence he had to arrest somebody. The accuser did at least photo ID them. On the other hand, if Seligmann’s allibi checks out, and Nifong arrested the wrong guy, this just does absolute wonders for the defense’s almost guaranteed attack on this young ladies credibility. Not to mention, really making Nifong look like a complete idiot. I think the bottom line is he shouldn’t have made such bold statements at the beginning of the investigation. Perhaps he felt that he had to indict someone, just to save face—unfortunately, for him and the accuser, he may have booked the guy.

*** last line should read “booked the wrong guy”

sorry..

Does Seligmann have a massive lawsuit on his hands against the City of Durham when this alibi checks out? It seems like it was gross negligence on Nifong’s part not to ask him where he was before he indicted him before the world. Maybe a legal guy can respond to this.

When the DNA comes back negative today there will be screaming to drop the case. The defense lawyers will be very nice to Nifong until the case is dropped. After that they will blast him beyond belief and put the heat on him to arrest the accuser for false accusations.

Skeptical Hog…...I do not blame the players for shutting their mouths after watching this witch hunt. It seems like they have very good lawyers who are dominating the case. Nifong had the captains offering to take a lie detector test on the night of the crime. This should have sent a red flag to him to proceed with caution.

I here your point about the difficulty of tracking the movement of 46 players that night. With this being said it is gross incompetence not to ask Seligmann and Finnerty if they had an alibi before charging them. Seligmann is scared for life because Nifong sealed the indictment and wanted some element of surprise.

I’m not certain that Nifong can be sued, for public policy reasons. Nifong is doing his job, though he may be doing it poorly. And in order to allow DA’s to do their jobs they can’t have a fear of civil suits hanging over their heads, or else everyone who has been charged—wrongfully or not—with a crime would sue the DA in civil court.

Perhaps, as an elected official (although, he was never “elected”) he can be impeached…

I must stress, as my name implies, I’m not sure…

I kinda doubt there’s a cause of action here against Durham… it’s not like Nifong had Seligmann arrested just for the hell of it. He did have an accuser ID on the guy, and there was corroborating evidence of a rape. But then again, what do I know?

Also, who knows if it would have been useful for Nifong to have asked Seligmann if he had an alibi. You’re assuming Seligmann would have responded to Nifong’s query.

It will be interesting to see what happens next. Ethically there comes a point where a prosecutor has to say, “wait a second here,” and reevaluate whether it is proper to proceed. A prosecutor’s job isn’t to win, it’s to ensure that justice is done. And justice doesn’t involve prosecuting a guy for a crime he truly, obviously couldn’t have committed. If this alibi evidence rises to that level of certainty (which, from the sounds of it, it really might), then Nifong’s got to realise that from a professional conduct standpoint, charges should be dropped.

Either that, or the timeline is incorrect, which doesn’t seem at all likely at this point.

The problem is, the accuser really may have been raped, making the DA all the more reluctant to give this up so soon. You’d think if that’s the case, some team member would come forward and exonerate the innocent (if indeed innocent) and point fingers at the real offenders.

Here’s another question: how reliable is a physical exam in differentiating past consensual sex from rape? Given questions about the accuser’s background, might it be that in this case, the physical exam drew the wrong conclusions? I’d like to see expert opinion on that issue: to me, that’s a central one here.

I’m not willing to say definitively that the accuser wasn’t raped: she was in the bathroom for 30 minutes, according to the defense, which is consistent with her story. The defense has her in there PAINTING HER FINGERNAILS???! That doesn’t seem credible. And why did the accuser leave all her stuff in the house? What accounts for her sudden intoxication? Was she beaten up at the house? Are there inculpatory photos? Was there something sinister about the photos of the falling down, intoxicated dancer (i.e. the lax players slipped her a mickey, then thought it funny that the dancer was hurting herself and unaware of her surroundings)? Questions remain, even if Seligmann wasn’t at the party, and the accuser ID’ed the wrong guy.

A video report with Dan Abrams at http://www.msnbc.msn.com/id/12366767/ shows parts of some of the party photos. Unless the rape occurred at 12:10 am or so, it’s hard to fathom how Seligmann could have participated, given the apparent evidence in the defense’ possession.

I hope for Seligmann’s sake this isn’t the cab driver that the alleged victim tried to run down… that would just be too “small world” for me!

Dan: I don’t remember seeing that link before; sorry I missed it. Still, “Freedom Cab for Seligmann” just sounds stupid, so the title stays…

Is it possible that the kids with alibies decided to take one for the team by refusing to cooperate? Instead of letting the DA focus in on (say) 20 players who had no independent evidience to help them, they made him choose from 46 in the hopes that he would mess up and pick a guy eating in a cab when the crime is supposed to go down.

It’s a risky strategy, maybe, but it also forces the DA to put his cards on the table first.

“The defense has her in there PAINTING HER FINGERNAILS???!”
Yeah, sorry, this is a minor point, but I just have to weigh in. Not only is it just too weird to think that she would do this, but I’ll explain something about nail polish that most men would not know: Nail polish DOES NOT HAVE TO BE WET in order to leave a mark on another surface (i.e. the porch railing, for instance). I have often left streaks of color on paper after dragging my nails (while turning a page or whatever) several days after painting my nails. The fact that the photos show red marks on the railing is, in no way, evidence that she had just painted her nails.

Now we have a cab driver—what would it cost for him to say the right thing at the right time? It’s been so long, how could he be sure it was on the night in question? If Seligmann saves his receipts, then the midnite snack should be in the pile of paper too, along with the cab fare receipt. A witness is a witness, but that loop needs to be closed.

It will be interesting to see how the DA attacks the alibi… either the alibi must be picked apart, or the timeline has to be shifted, or the description of the rape will need to be refined, or the DA will have to concede defeat.

Where exactly was dancer # 2 when dancer # 1 was locked in the bathroom, according to the defense story? In there also?

It’s hard to forget someone that ate in your cab and then gave you a big tip.

beside the ATM receipt (better to have an ATM video photo, too), there are also phone call records and University dorm hall entrance record. Perhaps the accusser’s cell phone records should be checked first to see if it matches her timeline. Perhaps her agency records, too, to see how many performances and other services she had prior to the Duke party.

Not sure why, but that link that Skeptical-Hog put up with the video of the lax party photos has been taken down by MSNBC (http://www.msnbc.msn.com/id/12366767/). Any reason why they would take this down? When I first checked, the video link was available, but the video wouldn’t show up. Now the video link is completely gone from that page. Would showing these photos create a problem for MSNBC or somehow be against their own policy?

Remember the DNA(coming back again today). It would have been transferred if the rape happened as described. Nifong’s 70–80% stat about cases being brought forward w/o DNA is entirely misleading. In this case you have a confined crime scene, identified suspects and an immediate rape kit(accuracy decreases if a rape is reported days later after showering etc). Any expert will tell you that the odds of this alleged rape occuring w/o DNA as described is extremely small.

I don’t know how people still believe this accuser after every shred of information released seems to contradict her claims. Pack it in. Seligmann didn’t have a manufactured receipt, a doctored camera, a paid off cabbie and an erroneous dorm entry reading. This kid isn’t Jack Bauer.

Dan, I’m still not convinced the accuser wasn’t sexually assaulted, but the chance that Seligmann did it is basically nil, barring some sort of stunning and unexpected revelation about his alibi and the timeline. It’s still possible that a crime happened (i.e. attack with an object, with no DNA transfer, and an involuntarily intoxicated victim misreporting the exact details of what happened), and that the alleged victim’s just made a bad ID here. But agreed: the more this goes on, the worse the case is looking for the DA.

Steve, maybe MSNBC thought it had permission to show the pictures, but they were wrong???

Skeptical…..I was watching the cables rags last night and supposedly a nurse specializing in rape kits will almost always say that the sexual evidence is consistent with rape. They have a very low threshold here for obvious reasons. I would be very interested in seeing her testimony.

W/O DNA and with a false ID(despite 100% certainty) my only conclusion is that she may be emotionally unstable and trying for a huge payday. The more that comes out the less I trust her. I also don’t trust the competence of the DA if he really didn’t even check whether Seligmann had an alibi.

Imagine if Finnerty & McFayden were the ones chosen and they were at the party. They would be fried right now by the media. this girl blew the case because she chose a guy who is a boyscout(that is the word here in jersey) and has an alibi.

Dan, I wouldn’t be at all surprised if the false-positive rate for sex assault physical exams is high. And according to the news reports of the party photos, the accuser sounds like she was already pretty beaten up when she first arrived, with cuts and bruises to her legs. So she must have appeared to have been attacked to her medical examiners, further suggesting to them a sexual assault when one may not have occurred.

This case is just fascinating, for so many different reasons…

I think one sad consequence is that after people find out that DNA test is not reliable for determining rape case, if the woman is found out lying, the public will also learn that a rape kit only indicates there are bodily traumas but it cannot tell when and whether the sex is consensual. That will impaire a lot of future real rape cases.

I just have one question. When did the woman id the players according to the scratches? I doubt that any scratches occurred that night would not have healed after one or two weeks later when the boys went to the DNA test and photo shooting. Did one of the report say that no DNA was found under her fake fingernails, either? I also remember Nifong was actually asked in one of the TV interviews why he hasn’t arrested someone according to the scratches on the body, and Nifong answered that because the woman was grabbed from behind and being strangled, so she wasn’t able to leave marks on her attackers’ body? So I think whoever (defense lawyer or prosecuter or media report) came up with the story about ID by scratches is somewhat unreliable.

Interesting, thought-proving coments on this Duke case.

I work in a federal prosecuter’s office and we’ve done a few rape cases, convicting police officers of assaulting female motorists, if you can believe that.

As to the role of a prosecutor, DA Nifong is cloaked with absolute immunity once a grand jury has heard the evidence, and any lawsuit will be dismissed on a grant of summary judgment. If he engaged in some pre-grand jury investigatory work, his protection is reduced to qualified immunity (A Supreme Court case outlined this immunity similar to a police officer’s), but other than the initial blowing off his mouth, it appears he has total immunity from lawsuits (by the way, if you read Norm Earle, a former Denver District Attorney who made some excellent media comments during the Simpson and Woodward murder cases, he again makes a very astute comments about attorneys who should enage in zip-lock lips).

Now: If witnesses do not talk, do they have alternative means to obtain evidence? Yes. I’m afraid a lot of the public uses lawyers like Marcia Clark, et al. as examples of prosecutors, when, in fact, her presentation in the Los Angeles Simpson case was one of the worst examples of how to investigate and present a case to a jury. Competent district attorneys look for physical evidence, i.e. the vicitm’s blood on the perps’ clothes (in this case, they got a blood sample in the rape kit along with a toxocology report from the lab that may indicate drugs or alcohol). Any kind of paper trial should be tracked down (in the Simpson case, the DA never introduced the receipt for the mask to bought, evidence which indicates consciousness of guilt).

Not just percipient witnesses, but any witness (especially police officers) near the crime scene and ask them about their racial motive evidence, comments, bias (which was overlooked when Mark Fuhrman testified in the Simpson case).

In several states, in a sexual assault case, all the prosecuter needs is the testimony of the rape victim. In this Duke case, it is probable that the victim was so convincing, in her story to the grand jury, that there would be indictments. I’ve read some other blogs and it surprises me that a lot of men do not realize that the uncorroborated testimony of a rape victim is sufficient to send the defendant to prison (that is why DNA testing is important to ID who had sex (Kobe Bryant matter), and if no DNA, then eyewitness identification becomes important (naturally, false IDs at trial have led to men being falsely imprisoned for sexual assault). In Norlth Carolina, for instance, the unsupported testimony of the victim is sufficient for a jury to decide whether to convict for rape, and it will be uphel on appeal.

Finally, (sorry for the long blog), As A Warning, the DA should totally ignore the protests; let them do their First Amendment thing. Just ignore them, do not listen to them and just stick to the legal work; the protesters only make things worse legally, i.e. the Rodney King case. Petitie juries, trial and appellate judges definitely get soured by loud-mouth protesters/rioters as the case moves along the legal timeline.

Anti-misandrist: Thanks for the wonderful insight. Here’s a hypothetical scenario for you, though, on prosecutorial immunity from civil liability— Suppose hypothetically that a prosecutor were to go far beyond negligence or recklessness and actually commit fraud in presenting a case to a grand jury, thereby securing an indictment against a guiltless defendant. Would a federal civil rights cause of action be possible against the prosecutor or the state? Obviously the prosecutor would be subject to professional discipline, but would this fact pattern get over the immunity hurdle?

Also, back to the Duke case, at a certain point the DA will need to recognize that further prosecution of Seligmann is not only very unlikely to be successful, but also implicates his professional responsibility as a prosecutor, correct? If Seligmann establishes a solid alibi, I mean a solid, solid alibi, the DA will need to reassess his position in going forward on this, correct?

Great post anti-misandrist. Very informative and interesting.

Good point

Before the McDade rules, the only redress for a defendant in a false prosecution was to show that the DA engaged in malice, something more than fraud, during proceedings leading to trial. Jim Garrison, former New Orleans DA, went after Clay Shaw, in order to debunk the Warren Commisson’s findings in the investigation of the assassination of President John Kennedy, by attemption to try Shaw for perjury after Garrison had lost his case against him (Oliver Stone seems to have forgotten that in his movie). In a real unusual move, the federal court granted the civil rights claim and stopped the state prosecution and cited Garrison for “bad faith prosecution”, later renamed prosecutorial misconduct. However, in the ensuing years, even in cases where fraud appeared rampant, federal courts did not want to get involved (fraud did not meet the “special circumstances”) and immunity from civil libility withstood any lawsuit.

In the federal area, however, Congress (specifically Cong. Hyde) took note of some very fraudulent action by federal prosecutors in their grand juries against (Congressman) McDade and Robert Donovan, Secretary of Labor in 1980 (my old boss), who were both acquitted at trial. Hyde codified rules in which a defendant could be reimbursed for his/her attorney fees, and other expenses, by filing a federal civil suit. The catch is that no court has yet defined “bad faith” or “frivolous”, so I have yet to see any Hyde Amendment awards.

On federal civil rights, one case was a AUSA who had a personal vendetta against the accused (I think he personally knew him, so it fit the definition of malice) and the court ruled in favor of the defendant, against the AUSA, in his 42 USC 1983 federal civil rights action.

At the state level, the McDade rule did spawn some state statutes (I think in New York, but don’t quote me) but again they do not define what constitutes bad faith.

As to the Duke case, it is always the prosecutors’ ethical responsibility to only pursue a case if they have an expectation for a conviction of all defendants, i.e., that means they cannot just simply take a case to trial (I got some fancy language for that if you want to know later). When I was reading about the voir dire in the Simpson case, it was becoming clear that the district attorney was becoming disenchanted with the potential petite jury (overly pro-Simpson) and Simpson’s acquittal was anticipated. Upon learning the misgivings from his trial team, DA Garcetti should have just simply dismissed the indictment; you lose face initially, but you gain in the long run (and we would have been saved the Simpson debacle). Incidently, Garcetti’s predecessor, Reiner, dismissed the bulk of the indictment in the McMartin case. So the short answer is yes, definitely, the DA should dismiss an Indictment (though it is rare, but not unheard of) if the alibi is solid.

Thanks again for the thorough analysis and explanation.