Deep Questions Remain In Duke Rape Case.

[NaturalHigh]

DURHAM, N.C. - There's not much middle ground in the legal community when it comes to opinions of local prosecutor Mike Nifong's most famous case.

His law school classmate Patricia McDonald, citing "an utter lack of evidence that a crime even occurred," wrote to Gov. Mike Easley and urged him to pressure Nifong into stepping aside in the Duke University lacrosse rape case.

"Mr. Nifong has lost his moral compass despite his claim that he is a `committed advocate for the truth,'" wrote McDonald, a former assistant in the Maryland Attorney General's office.

That's not the Durham County district attorney whom John Bourlon knows.

More...

[orpupilofnature57]

1. 'The Good Old Boy ' network alive and well n/t

[NaturalHigh]

2. You mean the "good old boy" network...

that wants to be sure that defendants are being charged with a crime that actually happened?

[Pavulon]

3. have you ever

been in durham county. Ever seen the DA staff, are you aware of the racial makeup of that county.

Let me put this way, rich white boys from up north are not the majority...

[NaturalHigh]

4. Isn't Durham County about 50% black?

[Lex]

5. The good old boy network at Duke University

is at play too.

[NaturalHigh]

6. What do you mean?

Honestly, there is no doubt in my mind that these three guys are going to be acquitted. However, I would think it a travesty for this to even go to trial if no crime was even committed.

How does the Duke "good old boys club" fit in?

[Lex]

7. My understanding is that not all evidence in the case

that the State has was disclosed to the media thus far. It's hard to say for certain what happened that night without all the evidence on the table. By state law, the DA doesn' t have to disclose the incriminating evidence his office has until trial.

That's why the rest of the article, as partially quoted in the Opening Post, points this out:

That's not the Durham County district attorney whom John Bourlon knows.

The criminal defense lawyer has faced off against Nifong hundreds of times over the past three decades. He's seen the prosecutor drop a weak case the day before trial.

Despite the supposed flimsiness of the evidence in the Duke case, Bourlon keeps coming to the same conclusion:

"I'm CONVINCED he has something."

The big-wigs in town, those with close Duke Univ. ties, have been trying to spin and shut down the DA's case from the beginning.

I don't particularly like the way Nifong has acted throughout, but neither have I particularly liked the way Duke University has tried to throw its considerable weight around on this either.

[NaturalHigh]

8. Doesn't he still have to disclose that evidence...

to the defense team before the trial? I'm not saying that it would make it to the media (is there a gag order?), but I don't think he's allowed to withhold evidence from the defense.

[Lex]

9. No. Under state rules he only has to share evidence with the defense that

is exculpatory to the defendants.

He does not have to share any evidence that tends to show the defendants are guilty until it comes out on the stand at the criminal trial.

(This is different from civil cases where all evidence is typically found during discovery and known to both sides.)

[NaturalHigh]

10. I didn't realize that.

Thanks for the info.

[onenote]

11. I think you are mistaken.

or am I misreading the North Carolina Criminal Procedure Act:

http://www.ncga.state.nc.us/EnactedLegislation/Statutes...

(a) Upon motion of the defendant, the court must order the State to:

(1) Make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term "file" includes the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. Oral statements shall be in written or recorded form. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.

(2) Give notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court.

(3) Give the defendant, at the beginning of jury selection, a written list of the names of all other witnesses whom the State reasonably expects to call during the trial. Names of witnesses shall not be subject to disclosure if the State certifies in writing and under seal to the court that to do so may subject the witnesses or others to physical or substantial economic harm or coercion, or that there is other particularized, compelling need not to disclose. If there are witnesses that the State did not reasonably expect to call at the time of the provision of the witness list, and as a result are not listed, the court upon a good faith showing shall allow the witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.

(b) If the State voluntarily provides disclosure under G.S. 15A‑902(a), the disclosure shall be to the same extent as required by subsection (a) of this section. (1973, c. 1286, s. 1; 1975, c. 166, s. 27; 1983, c. 759, ss. 1‑3; 1983, Ex. Sess., c. 6, s. 1; 2001‑282, s. 5; 2004‑154, s. 4.)

[Lex]

12. I understand that this has be turned over upon motion of the defendant

but here is the rule about a DA having to spontaneously disclose evidence to the defense, in 3.8 (d):

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense


http://www.ncbar.com/rules/rules.asp

[onenote]

13. Sec. 15A - 903. Disclosure of evidence by the State –

The Criminal Procedure Act specifically requires the court to order the State to disclose to the defendant "the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant." The term "file" includes the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. Oral statements shall be in written or recorded form. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein."


There is no limitation in the law to "execulpatory" information. Indeed, the law would make no sense to be read that way since the prosecution isn't likely to be putting on exculpatory witnesses.

[onenote]

18. right, but the defense has made the 15A-903 motion

http://www.kirkosborn.com/Motions/RequestforDiscovery.p...

My understanding, although I haven't seen a copy, is that the state takes the position that it has turned over everything and thus the motion should be denied. If that's the state's position,they aren't going to be able to use any evidence that they haven't already provided. If my understanding is wrong and the state admits that it hasn't disclosed everything, presumably the court will order them to complete their disclosure before trial

[Lex]

19. Okay thanks, onenote,

for that link.

[onenote]

21. Your'e welcome!

[Blackhatjack]

14. Sorry, but your understanding of the NC Rules is wrong .....

... we do not allow trial by ambush in North Carolina. IF the DA intends to offer exhibits and evidence at trial, it will be identified in advance and a copy given to the defense attorney prior to trial, and will be covered by a pretrial conference between the Judge Presiding, DA and Defense Attorneys. (THis is required so that the trial does not have to be interrupted by recesses in order to give the opposing counsel time to investigate the exhibit or evidence before objecting to it during a trial.)

What you may be referring to impeachable information in connection with a witness testifying at trial. We have a rule in North Carolina that allows the prosecution to withhold impeachable evidence regarding a 'witness' until after the witness has testified on direct, and must be disclosed to defense counsel before cross-examination. This tends to result in trial interruptions since defense counsel has little time to review what he is given, and limits the opportunity to contact other witnesses or experts to assist him/her in testing the credibility of the witness on cross-examination. If there is a lot of information, defense counsel usually asks for an extended recess to give them time to read, understand, research and confirm the information they have just received.

This rule basically keeps information about a witness' credibility secret until they testify. So if they are never called to testify, this information never comes out as a result of a disclosure from the DA. (It can still be discovered by defense counsel, and defense counsel can call the same witness during their part of the case if they so choose.)

Pretrial orders are usually pretty specific, and to add exhibits or witnesses at trial that are not disclosed in advance and covered by a pretrial order is unusual --primarily because it is unfair to "spring" a witness or piece of evidence on the other side and not give them the opportunity to prepare to rebut it at trial.

[Lex]

16. So how does that square with Rule 3.8(d) (set out above) and

why would there have to be a Rule 3.8(d) in the first place if the DA was compelled to give ALL evidence to the defense in the first place?

[Blackhatjack]

24. OK, impeachable evid may have nothing to do with Defendant's guilt...

.... some examples might be, prior false testimony in a trial, deposition, administrative hearing,etc. Or possibly signing a tax return that contained omitted information or false representations. Any situation that might cause the witness to be biased in his testimony. For example, if the witness has entered into an agreement with the State to testify against this defendant in exchange for a promise of a more lenient sentence.

So impeachable evidence does not always have any bearing on the crime being tried. It goes to the jury being able to judge the 'truthfulness' of the witness. Which is critical to a jury believing what the witness has to say, and ascribing weight to that testimony as part of their duty to find proof of each and every element of the crime charged, beyond a reasonable doubt.

It is malpractice for a criminal defense attorney not to file motions demanding full discovery prior to trial.

As a result of defendants being convicted and given the death penalty in NC who later were exonerated, we now have an 'open file' policy. And NC is one of the first states in the country to set up an "Innocence Commission" to review the record and evidence of defendants who have been convicted, who have evidence to be considered which may prove their actual innocence.

We had two prosecutors in NC who withheld witnesses' statements that 'they had to make up a story' in order to satisfy law enforcement. They testified against the Defendant naming him as the perpetrator while he was so many miles away from the crime scene at the time of the crime it was impossible for him to have committed it. The local newspaper, THe News & Oberserver did an extensive examination that eventually resulted in the Defendant(Gell) being released from death row. The two prosecutors were investigated by the State Bar for prosecutorial misconduct, but the charges against them were dismissed because of a technicality --the complaint against them was not raised early enough.

[William Bloode]

27. Nope thats wrong.

Having been to trial several times in Nc i know about "the motion of discovery". When your lawyer files a motion of discovery the Da must disclose any and all evidence they have against you. I am no lawyer, but i sure know what mine has explained to me. My lawyers no hack either. His record in my defense is 71-3-2. Thats 71 victories (not guilty, or dropped), 3 guilty, or pleas, 2 consolidations.

[aikoaiko]

15. So Bourlon is saying Nifong waits until the day before to drop weak cases.

It will be interesting to see if that happens here.

[Lex]

17. If that happens, Nifong needs to resign and move to another city.

Bourlon also goes on to say that he thinks Nifong has more evidence than has been released to the media (or the defense?--not sure on that).

[Blackhatjack]

20. This is not a legal opinion, but Examine Defense Counsel in this case....

... I know a number of the defense counsel in this case, and their long history of representating criminal defendants does not show a history of them making prominent statements of innocence which we have in this case.

I cannot think of any case in which Defense Attorney Joe Cheshire has ever had to retract a public statement he made because it turned out to be untrue.

I think Nifong is playing for time, hoping to turn up some evidence he does not yet have to save this case for him. His fall back position will be that he does not have enough evidence to take this case to trial, or he has discovered that a witness' statement or representations to him are untrue and now have damaged their credibility --and as a result he must dismiss the charges.

From what has transpired to this point, and knowing the reputations of the parties, it is highly unlikely these cases will be called to trial.

[Lex]

22. I agree that all the defense counsel are highly respected and

very, very damn good criminal attorneys. But they certainly aren't going to talk about weaknesses in their cases.

One quibble, Wade Smith declared his client Ann Miller Kontz innocent of poisoning her husband to death, then later she confessed. Right?

[NaturalHigh]

23. I haven't heard of that case.

From everything I've ever read, though, I have a lot of respect for Wade Smith.

[Blackhatjack]

25. The Ann Miller Kontz case was an aberration, here is why.....

.... poisoning cases are the hardest to prosecute. You have to prove each and every element of the crime, and usually there are no witnesses to come forward saying they saw the defendant put the poison in the food or drink. So the prosecutor usually has the impossible burden of proving other individuals could not have been the source of the poison.

In this case, her lover committed suicide leaving a suicide note for his wife saying he did not have anything to do with the death of the Miller's husband. However, before he died he spoke with his attorney(Rick Gammon) at a time when the attorney/client privilege would bar what was said by both of them. When he died, the DA moved to set aside the privilege and have the attorney(Gammon) disclose the contents of their conversation to the DA in prosecuting Miller. It went all the way to the Supreme Court, and Gammon eventually was required to violate the privilege and disclose the information to the DA.

If I recall correctly, Miller had already remarried and moved to the coast with her small child. I think the plea she entered was a 'no contest' plea --which is a plea saying I do not admit guilt, but I acknowledge the evidence of guilt the state will present, and agree to accept the punishment meted out by the court. (If she pled guilty, disregard the foregoing).

All defense attorneys in a high profile case (with lots of publicity) state their client intends to plead not guilty(or is innocent) and looks forward to the opportunity to prove their innocence at trial.

The statements I am talking about relate to specific facts and witnesses and results of scientific tests, etc. You do not find these defense attorneys usually making these assertions unless they are 100% sure that what they are saying is true. Why? When they appear in court before a jury, all they carry with them is their credibility, that what they say is true. If the jury does not believe they are telling the truth, the client-defendant is a dead duck. So you do not take chances to boost the standing with the press, when the jury is all that really matters.

Wade Smith is a fine attorney, as is his brother Roger. You can be in fact innocent and enter a no contest plea in N.C. I suspect that is what happened. I am not saying she is innocent of the crime. But he probably said she is pleading innocent. Defendants do not always tell their attorneys the truth about everything, and sometimes they take a plea deal admitting guilt because they can be released for time served or want to take the sure deal rather than face a long prison sentence if convicted at trial.

[Lex]

26. No, according to the N&O newspaper

"Miller Kontz pleaded guilty to second-degree murder and conspiracy to commit first-degree murder in the poisoning death of Eric Miller."

[Blackhatjack]

28. I have no reason to doubt the N&O report of the plea, but she was ...

....charged with first degree murder I believe, and the DA had not ruled out the death penalty. So obviously she took the "sure deal" offered to her that did not put her in jeopardy of receiving a sentence of death, or a much longer prison term.

I have never heard anyone question Wade Smith's reputation for truthfulness, and he has been around a long time working on high profile cases. I would have to see exactly what he said to understand if he later retracted a public statement he made as being untrue.