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The Duke Lacrosse Files

So, District Attorney Mike Nifong leaked all 1,850 pages of evidence in the Duke Lacrosse rape case to the New York Times in hopes of countering the public perception that the whole thing is a sham and a textbook example of prosecutorial abuse. Duff Wilson and Jonathan Glater only partly oblige, producing a lengthy and detailed account that, while certainly promoting aspects of the case that are favorable to the prosecution, still contains a whole lot of question marks and red flags about the accuser's story and, most importantly, about the way this case has been prosecuted.

Perhaps the biggest question raised by the story is the source for much of what appears in the article itself: 33 pages of typed notes and 3 pages of handwritten notes by Sergeant Mark D. Gottlieb. Defense lawyers say Gottlieb initially told them he "took few handwritten notes" on the case, so they were surprised to receive 33 pages of typed notes from him with details addressing specific problem areas of the prosecution's case in a final disclosure of documents made to the defense four months after the rape allegedly took place. Wilson and Glater write:

The sergeant's notes are drawing intense scrutiny from defense lawyers both because they appear to strengthen Mr. Nifong's case and because they were not turned over by the prosecution until after the defense had made much of the gaps in the earlier evidence.

Joseph B. Cheshire, a lawyer for David Evans, one of the defendants, called Sergeant Gottlieb's report a "make-up document." [snip]

Mr. Cheshire said the sergeant's report was "transparently written to try to make up for holes in the prosecution's case." He added, "It smacks of almost desperation."

Even beyond the issue of Gottlieb's notes, there are so many interesting tidbits and angles in the article you should really sift through it all yourself. But here are two things that really jumped out at me. First, here is how Wilson and Glater report the initial police search of the house on North Buchanan street:

Mr. Evans and the two other team captains who shared the house were there. Police reports say they cooperated fully. Not only had there been no rape, they said, there had been no sex at all. They talked for hours without lawyers, gave DNA samples and offered to take polygraph tests. The officers declined the polygraph offer because, they said, DNA evidence would solve the case.

Initial reactions often say quite a bit, and if the police report is accurate - and we have no reason to believe it's not - it would appear to describe the actions of three innocent people. David Evans is among one of the three charged in the case, so it seems implausible, to say the least, that he would sit down and talk with police for hours without a lawyer present and offer up a DNA sample (later requested by the prosecution and eventually coming back negative) were he guilty of raping someone just a day prior.

The other bit that struck me was Nifong's refusal to meet with Reade Seligmann's attorney to hear evidence of his alibi:

In mid-April, the defense lawyers tried repeatedly to meet with the district attorney to share what they describe as evidence favorable to their clients. He rebuffed them, they say.

Mr. Nifong met with three of the lawyers on April 13 but cut them off when they talked about exculpatory evidence, saying he knew more about the case than they did, according to James D. Williams Jr., who represents a player who was not charged.

Mr. Osborn says he offered to show Mr. Nifong proof of a solid alibi for Mr. Seligmann. That includes cellphone records, an A.T.M. record, a time-coded dormitory entry card and a taxi driver's account. Time-stamped photos show that the women were dancing at the party until 12:04 a.m. According to his cellphone bill, between 12:05 and 12:13, Mr. Seligmann made eight brief calls, of 36 seconds or less, six of them to his girlfriend's number, and then phoned a taxi at 12:14 a.m. and left the party shortly after.

Mr. Nifong has never explained his refusal to meet with the lawyers or review their evidence.

"I've known the guy for 25 years," Mr. Osborn said in mid-April. "I went over and thought surely he'd listen to me on it. And he sent some messenger out and said, 'I saw you on the TV saying your client was absolutely innocent, so what do we have to talk about?' He wouldn't even see me himself."

The timeline seems to indicate Nifong was hell bent on delivering indictments. After three weeks and three different sessions, the accuser finally made identifications on April 4. On April 10, Nifong turned over the results of DNA tests to the defense showing that not a single match had been found. On April 13, he rebuffed defense attorneys' attempts to provide exculpatory evidence, including what appears to be an air tight alibi for Seligmann. Five days later, on April 18, Nifong indicted Finnerty and Seligmann (it took another month to indict Evans, on May 15). All of this was occurring while Nifong was running for reelection in a primary that took place on Tuesday, May 2.