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Legal Response #2

I am a prosecutor with a ton of pretty heavy duty trial experience in a big city
DA's Office, and Nifong's handling of this case is just the kind of thing that damages
faith in the criminal justice system nationwide. People (read: prospective jurors)
think this kind of tunnel-visioned, unethical, win-at-all-costs, justice-be-damned
type of approach is the rule, rather than the rare exception that, in my experience,
it is. It just kills us all with jurors, many of whom are already skeptical of
police and prosecutors, who are prone to conspiracy theories, and who use these
kinds of performances to generalize about police and prosecutors, and to justify
their prejudices and biases, which in the vast majority of cases are unfounded.
In addition, his approach has been very stupid in practical terms, and I think he
has done everything possible to minimize his chances of actually prevailing at trial.

There are so many legal aspects of this that are suspect that there would be no
way to discuss them all in one message. However, the arrest of the cab driver raises
two right away for me. First, if this warrant lay dormant for several years, and
was not acted upon until he became known as a defense witness, the defense will
(or should) have an opportunity to introduce that to the jury and exploit it for
what it is, which is witness intimidation. So transparent.

I hope the cabbie has
been living and working peacefully at the same locations since the warrant was issued,
so that would enable the defense to more persuasively make their case that the cabbie
has been sitting in the same spot for 3 years with a warrant outstanding, the police
could have acted on it at any time, he was just sitting there going about his business
waiting to be picked up on said warrant, and it is only now, NOW! that they all
of a sudden get interested in his case and get real aggressive with it?!

Any juror worth his salt would get it right away, would question the motivation
of the DA, and probably give more weight, not less, to the cabbie's testimony when
it's given in the face of that attempted intimidation.

Second, as I posted on one of the topics on the main board, the cabbie, if he has
been easily locatable since the warrant was issued, will have a pretty good speedy
trial claim and get his case dismissed. If the police could easily have served
the warrant and arrested him, but instead simply sat on it and did nothing, it is
likely this would be the result.

If, on the other hand (and I doubt this is the
case) the police were searching actively for him for the last 3 years and made all
reasonable efforts to find him, then the speedy trial claim would fail.

Also, with regard to the "case" against the cabbie on its merits, if he
simply picked up a fare, brought them to the mall, they told him to wait for them
outside, then they robbed a store, came back to the cab, and he unwittingly simply
drove them home, he's not guilty of robbery or theft. For criminal liability to
attach for theft, he would have to have knowledge of the intent of the thieves and
would have to have intended to aid and abet (i.e. aid, help, encourage, facilitate)
the commission of the theft. No way on that one.

Maybe he would have liability
for accessory after the fact if, not knowing their intent to steal when he dropped
them off, he drove them away after learning they had just committed the theft.

In a situation like this he probably didn't even know what they had done at the
time he drove them home, so he wouldn't even be liable for that.

Bottom line on this case is that it's a criminal defense attorney's dream. From
a trial perspective, the unfolding of events in the "investigation" of
this has gone exactly as a criminal defense attorney would script it if he could.

I mean every single thing that could have gone against the prosecution and helped
the defense, has occurred, from the no DNA match to the accuser changing her story,
to her criminal past, to the other stripper's conduct, what happened at the mall,
the other stripper contacting the PR firm to try to cash in, the LAX players volunteering
to cooperate and give DNA and give statements, to one defendant's solid-seeming
alibi, the accuser's past accusations of rape, her psych history, etc. etc. Based
on the evidence as we know it, any defense attorney that loses a case like this
is really -- and I mean really -- in the wrong business.

If he or she can't even
raise a reasonable doubt based on all of this? Such a low threshhold. Hard to
imagine unless jurors went in there with a predetermined result in mind, had their own agendas,
weren't interested in a fair evaluation of the facts introduced in court, etc.
That can happen (obvious example being OJ) but I can't see that happening here,
certainly not ALL jurors coming in like that, which is what the prosecution would
need to get a unanimous verdict of guilt.

The sad thing is that no prosecutor with a fair and open mind, and who has the legal
ability and experience (and motivation) to take an objective look at the evidence
before him, would even proceed with this prosecution. Nifong's blind march to ignominy
will ultimately destroy not only his own reputation and career, but will severely
damage Duke, Duke-Durham relations, and the criminal justice system as a whole,
not only in that geographical area, but to a degree nationwide. What a travesty.