This present reinstitution of a stalled or discontinued prosecution is by far the
most troubling. In Virginia, the credibility of a witness can be attacked if the
witness has been convicted of a charge of moral turpitude (lying, cheating, or stealing
generally) or a felony. If North Carolina has a similar law, then the DA can cast
aspersions on the cabbie's credibility as a result.
It is surprising to see such
a charge reinstituted on such specious grounds unless the cabbie made a statement
implicating himself. If he had prior knowledge of the convicted woman's intent to
shoplift or if she made him aware that she had shoplifted goods prior to his leaving
the scene with her, a case can be made for his being legitimately prosecuted.
That being said, given the facts and circumstances regarding his involvement (he apparently
cooperated with the prosecution of the woman who actually did shoplift as fully
as could be expected), this really does not pass anyone's smell test. Until
something along the lines of what I noted above is provided to justify the reinstitution
of the charges, this seems at the very least to be harrassment and at worst malicious
The other lacrosse players charges being reinstituted seemed at the time to clearly
be an attmept by the DA to dicker for some player coming forward and
making statements and/or testifying in corroboration of the stripper who is the
At that time in the press, the DA was complaining loudly of
a conspiracy, impugning the integrity of all of the players given their joint statements
that no rape occurred. A person more familiar with North Carolina law would need
to weigh in as to whether the credibility of the players could be impugned for any
of the reinstituted charges against them; in Virginia, it would be hard to find
a judge who would permit it.
The one thing that is absolutely beyond question is
that all of this activity on the part of the DA signals a lack of confidence in
the credibility of his complaining witness and/or a lack of corroborrative evidence
supporting her claim.
Despite the DA's statement, it would not be unusual at all for the police to question
the cabbie regarding any and all ancillary criminal matters of which they have reason
to believe the cabbie has knowledge. This happens all the time, both on Law and
Order and in the real world.
The DA, by his statement regarding the unlikely nature
of the alleged questioning, is also impugning the cabbie's integrity and credibility
in the public eye, just as he did with the entire lacrosse team by accusing them
of a conspiracy.
I don't understand how the ethics process works in North Carolina
and how all of this open airing of prosecution and defense cases passes muster,
but this is getting well past theater of the absurd. Despite the seeming impossibility
of it doing so, this case keeps getting uglier and uglier.
The scariest prospect as far as I am concerned is the identification process used
by the police in assisting the complaining witness in her selecting the present
I have not seen in print or on TV any further investigation into the
claim that initially the police only provided her with team photos for her to peruse.
As has been noted in the papers, precedents have been set stating that such an identification
process has been deemed improper. DA's across the country have to attend seminars
and are expected as legal officers to know all recent precedents impacting whether
or not a prosecution they are conducting is lawful.
To the extent that the identifications
by the complaining witness are based on a Constitutionally improper method and the
DA's office had occassion to know at the outset (unknown) or has had occassion to
learn of it since (must be known), Seligman and Finnerty would be in a position
to own the City of Durham via a civil suit; the charges should have been dropped absent some alternative means of identifying the alleged attackers,
which method escapes me in the absence of DNA matches. It would also create tremendous
pressure within the police department and the DA's office to "fix" their
identification records so that they pass Constitutional muster.
I have not heard
anything more about this most serious of potential problems for the DA since the
issue was broached, and I am concerned as to why there has been so much silence
on this point when there has been so much clamor regarding everything else to do
with this case.