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El Pollo Loco!

While it's encouraging that the rape charges against Reade Seligmann, Colin Finnerty, and Dave Evans have been dismissed, what it really amounts to is a dodge by Mike Nifong: after Dr. Brian Meehan of DNA Security revealed in court that he and Nifong had agreed to withhold exculpatory evidence which would help clear the defendants, DNA became a vexing problem for the D.A. The answer? Drop the rape charge. No DNA, no problem. Or that's the basic idea, anyway. More corruption in Durham - what a surprise.

On the same day the rape charges were dismissed, the city admitted that it had faked the results of tests to detect lead in drinking water. This follows on the heels of the well-documented police missteps in the lacrosse case, the terrible police errors in the Peterson case (allowing family members to walk through the kitchen during the initial investigation; not finding the poker which was alleged to be the murder instrument, which was in the garage all along, under leaves), the problems with the Small Business loans a few years ago, the histrionics of Jackie Wagstaff before she was finally voted off of the school board, the police chief several years ago who faked his resume and went on the lam, or the city council member who had an issue between his wife and girlfriend, much to the amusement of the city at large.

There are surely other things, but it gets hard to keep track of. Durham, quite sadly, has gone from being a dynamic, interesting little dynamo of a city to a laughingstock. Mike Nifong is just the most recent person to make an ass of himself; he probably won't be the last one.

In Friday's developments, we learned that the D.A.'s office interviewed the alleged victim (AV) - finally - and found that she couldn't be sure she was raped. As we understand it, in the state of North Carolina, rape is solely defined as a male penetrating a woman's vagina against her will. So the alleged sodomy and forced oral sex are not counted as rape but rather as sexual offense. Kidnapping is the other charge which still stands.

There are a number of remarkable things here: first of all, in her hospital statement, or one of the accounts anyway, the AV was very specific: she was vaginally and anally raped and forced into oral copulation. Ejaculation was recounted. Now, it's possible if you can't see behind you and are traumatized that you might not be certain what is penetrating you, but that leaves a big problem with the story: the oral copulation.

She says now that she wasn't sure if she was raped or not, but presumably, it would be harder to be uncertain if you were forced to give oral sex. And while we're not sure about the law on this, one would hope that the judge would allow the exculpatory DNA evidence to be entered if it were critical to the defense. Or perhaps she's no longer alleging oral sex at all; it's not clear from the court documents.

It's also quite remarkable that no one from the district attorney's office managed to interview the AV until several days after the DNA fiasco revealed the depths of Mike Nifong's - there's really no other word for this - wickedness. The suggestion that they agreed to withhold the news of the DNA results, which cleared every player on the team, to protect the privacy of those who were under a cloud would be laughable if the situation weren't so serious.

What Nifong has essentially done is to change the rules in the middle of the game. The testimony of Meehan complicated his case immensely. For one, he could have been called as a witness, thus (as we understand it) forcing him to step down from the case. For another, the case would have been laughed out of court.

In theory, that wouldn't be the case now. The penalties are essentially the same; the burden of proof is less.

Nonetheless, the case has some serious problems for Nifong. For one, his witnesses are a disaster. Meehan was so ruinous that the rape charge had to go. Then there's Kim Roberts, whose credibility was weak to start with, but her back-and-forth statements make her highly unreliable to everyone, but potentially destructive to Nifong.

Then there is the lineup, which violates city, state, and federal guidelines. Given the dastardly way he attempted to manipulate the DNA evidence, his treatment of the cab driver who provided Reade Seligmann's alibi, and, well, it's harder and harder to keep up with the rest, but you probably know the basics anyway. Given all of that, one would hope the judge would, as soon as it is possible, call him on the carpet and throw the case out.

Duke law professor Erwin Chemerinsky earlier said that '...[r]ight now this case is likely to turn on three things: First, how strong is the physical evidence that a rape occurred, (and) what did the examination of the woman show? Second, how credible is the woman and the allegations? Is her identification (of the attackers) credible? Third, what if any corroboration is there for the woman's story?

The first question is now moot. The second is highly suspect. The third should be thrown out since the lineup violated every standard applicable. And fourth, unless there is a very great surprise, there is no corroboration.

After today's news, Chemerinsky was quoted on WPTF 680 as saying "I'm not surprised. There is so little evidence of rape that I think it makes sense that the district attorney has dropped these charges. Also in light of the fact that we learned last week that the district attorney had instructed the lab not to disclose key the end I don't think he had any choice but to do this."

He also suggested that the defendants could sue Nifong.

In other Friday news, Duke President Brodhead released the following statement:

“I am greatly relieved for the students and their families that the most serious of the charges has been dropped. Given the certainty with which the district attorney made his many public statements regarding the rape allegation, his decision today to drop that charge must call into question the validity of the remaining charges.

“The district attorney should now put this case in the hands of an independent party, who can restore confidence in the fairness of the process. Further, Mr. Nifong has an obligation to explain to all of us his conduct in this matter.”

So while the rape charges are over, as Joseph Cheshire said, the general legal threat is clearly not over. But there is no question that Nifong's position overall is weakening. He can still bring these charges, despite all the various problems with the case, but soon he'll have to answer to the judge, and beyond that, to the state bar, for what little that's worth. The Wilmington paper recently discussed two other corrupt prosecutors who were not disciplined by the bar; one went on to become a judge himself. So don't count on too much from the bar.

He should at some point be held accountable for the blatant manipulation of the case in which he has engaged. That will have to wait, unfortunately.

Finally, we read an old article about a previous Nifong case where he referred to his opponents in court as "poultry." Later he explained that he was calling them chicken. He has visited this theme more recently, suggesting that if he were on the opposing side, he'd be afraid to face himself in the courtroom too (of course he'd be armed with the knowledge of just how deeply he's willing to corrupt the process, which would frighten anyone in their right mind).

But when the shoe is on the other foot, the braggadocio, the taunting, it stops rather quickly. Before Friday's announcement - timed absolutely as close to Christmas as possible to avoid as much discussion as possible, Nifong had someone tape a note to his door requesting "No Media Please!"

Et Tu, Poultry?

Boswell & Julio