In Durham County, an epic legal battle is being fought in the now infamous Duke lacrosse rape case, and it's not the one you've been reading about. This fight spans hundreds of pages of legal documents, but has gotten little media attention.
It's over basic information about what happened the night of the alleged rape, evidence a 2004 open-file discovery law says the defense has a right to and should have received months ago.
At the moment, Durham prosecutor Mike Nifong is making an utter mockery of that law, and a game of legal "chicken" is quietly unfolding in which those in the know hold their breath, waiting to see if someone, anyone, will -- or can -- rein him in.
To understand the implications here, you've got to rewind to 2004. Half a dozen cases had come to light in which innocent men were sentenced to die or had served years in prison for crimes they didn't commit because prosecutors withheld evidence that would have cleared them. The state's justice system was in crisis. Every death penalty conviction was under scrutiny. Legislators created an innocence commission and some demanded a moratorium on executions.
So when the governor signed a law in 2004 that said prosecutors had to turn over their entire files, including all records of police and prosecutor's interviews with the victim or other witnesses in the case, politicians and the editorial pages sang Kumbayah, and hailed it as a major breakthrough for protecting the innocent.
Then, on April 17, the first two Duke lacrosse players were indicted for raping a stripper after a rancorous party. By Oct. 11, the defense team had sent its umpteenth letter to Nifong, again demanding what they have fought for repeatedly in court but still don't have -- records of any of the interviews Nifong has had with the accuser.
When did she tell him she was raped? Did she give him a timeline? Who raped her? No one knows, but Nifong has claimed publicly that he interviewed her and believes her story. He's also denied to the court that he has ever interviewed her. Meanwhile, the list of police investigators' notes -- Nifong is serving as the head of the investigation -- that remain "missing" could fill an entire Citizen Servatius column.
Here's just one of the latest blatant examples. In a Sept. 20 motion, Nifong wrote that the victim "told the undersigned District Attorney that she had never at any time knowingly and voluntarily taken Ecstasy." Clearly, Nifong and perhaps others have talked to this woman, and the defense has a right to the content of those interviews. Either that or Nifong lied in the Sept. 20 motion. Neither scenario is confidence inspiring, yet there are dozens of these glaring time/space paradoxes involving the alternate universes Nifong apparently inhabits.
If a witness under oath pulled the kind of stunts Nifong has, they'd be facing perjury charges. Yet Nifong has repeatedly gotten away with telling the court in writing that he has turned over all the evidence he has -- before turning over more evidence he has clearly been holding back for months after a judge orders him to.
It's a pattern that alarms Brooklyn College constitutional history professor K.C. Johnson, who has scoured reams of legal documents in the case, particularly given that some of the evidence Nifong has belatedly produced casts doubt on the defendants' guilt.
"This is the first high-profile case since the open discovery law passed in North Carolina," Johnson says. "This stuff should have been turned over in late April. If Nifong gets away with this, other North Carolina DAs will do the same thing."
In most states across the nation, laws exist that allow the governor or other elected officials to pull a district attorney off a case for breaking the law. But North Carolina doesn't have those laws. And, so far, none of the judges who have handled the case have seen fit to reign in Nifong, something Johnson says would take a great deal of backbone since it would bring instant, wall-to-wall, national media attention.
"I think people probably are watching this," Raleigh defense attorney Ann Groninger says of the state's legal community. "There is a wide discrepancy in how much the law is enforced in different counties and by different judges."
Meanwhile, the members of the "innocence posse" who cheered on the open file discovery law and demanded justice when the state bar merely slapped the wrists of prosecutors who knowingly sent innocent men to jail seem to have fallen off their horses.
"If this were New York, Nifong would have been removed months ago by the governor -- not because he believed the defendants are innocent, but because it is clear that Nifong is breaking a lot of rules," says Johnson. "This case should change North Carolina law."
And it could prove something else. If a six-member legal team with wealthy clients and unlimited resources hasn't yet managed to drag all the basic facts of this case out of a district attorney after months of trying, the average defendant in this state is thoroughly and completely screwed.
And the defendant with a public defender who has 150 other cases? He might as well plead guilty, bend over, and kiss his rear end goodbye.
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