Oz in Wonderland: You've Got To Move.

Dear Judge Smith:

In his application seeking Chief Justice Parker's approval of your appointment to preside over this "exceptional" Hoax, Judge Orlando Hudson noted that having one person (that would be you) at the helm "would make it easier to have motions and hearings."

That was three months ago.

As then reported in the Herald-Sun, attorneys and judicial colleagues described you as a "soft-spoken, highly competent, no-nonsense man without any apparent trace of arrogance or flamboyance in his demeanor." Officials were then predicting that your appointment would improve consistency and efficiency. In the time since, however, judicial efficiency appears to have been consistently thwarted by your seeming indifference to Nifongian hijacking of proceedings. We've seen a lot of that genteel, soft-spoken nature. We've seen little, however, indicative of a high degree of competence and nothing of the "no nonsense" trait that you allegedly possess. We've seen a potted plant. And that's bad.

On two occasions, now, you have allowed Mr. Nifong to commandeer your courtroom. You have tacitly countenanced his unprofessional decorum, ad hominem taunts, trademark smirks, arrogant dismissal of your own Order setting forth the end date for evidentiary disclosure, and the making of blatant falsehoods on the record in open court. You have twice permitted open-cage-day at the zoo. The inmate is running your asylum.

You let him speak Nifongese to tap dance out of the "fifty, or was it 15, press interviews" gaffe.

You withheld bench cross upon his assertion that the April 11 meeting with Mangum did not include discussion of case specifics, despite Gottlieb's written recollection to the contrary and his own sworn motion memorializing discussion regarding her ingestion, or not, of contraband drugs at the time in question. You now know, of course, that well before the date on which Nifong claims, incredibly, not to have spoken to Crystal about the case because she was still "too traumatized" to do so (as evidenced by, he says, her "difficulty maintaining eye contact"), she'd been on a pole, or several, same as it ever was, good old Precious.

You raised nary an eyebrow when Nifong informed that audio recordings previously ordered to be preserved had been, oops, destroyed.

You denied defense counsel's demand for a Bill of Particulars in the very face of Nifong substituting his particular fiction for that of the false accuser, despite his claim of having never spoken to her about events upon which the indictments were returned.

You forebore rebuke when he turned the Constitutional presumption of innocence on its ear by smugly asserting that Reade Seligmann need only account for an hour and a half out of his whole life so as to have nothing to worry about.

Enough nonsense. It's time. Time to put on your big boy pants, take control of your courtroom and the administration of justice, and bitch slap that smirk to the back wall.

Kirk Osborn's photo identification suppression motion, officially on behalf of defendant, Reade Seligmann, but for practical purposes dispositive of the Hoax pled against the three indictees, has been pending since May 1, 2006. Amendment thereto was filed on or about June 8, 2006. While you are not subject to criticism for the delinquencies of your sycophantic predecessors, you are subject to criticism for perpetuating their dereliction of duty. It is time. Time to define your place in history.

The North Carolina Criminal Procedure Act [NCGS 15A-954 (a)(4)] mandates that, on motion, the court "must dismiss the charges stated in a criminal pleading if it determines that...[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."

As correctly noted by Mike Gaynor, in the best article yet published setting forth the absurdity of the claim that a trial must be had to fully adjudicate the Hoax, just such flagrant violation and irreparable prejudice has been perpetrated upon the defendants. Judge Stephens' ridiculous Order compelling a particular class of individuals, i.e., all white members of the 2006 Duke Lacrosse team, to submit to photographic and DNA identification processing was unconstitutional. White, male, non-team individuals attended the subject party. No investigation was undertaken to determine whether Mangum's alleged attackers were of one or the other group. Stephens' Order was made despite the utter absence of probable cause to believe that any particular individual member of the team "class" had committed any felonious offense.

Further, the affidavits of Assistant District Attorney David Saacks and Investigatior Benjamin Himan, offered in support of the application for the identification procedures sought, were perjurious. Their sworn representations alerted Stephens to "medical records that were obtained by subpoena" indicative of Mangum having "signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally." As you, of course, now know, medical records had not yet even been printed, let alone obtained by law enforcement authority, at the time Saacks and Himan swore to the lies quoted, and said records, once obtained, contained no memorializations remotely tending to substantiate Saacks' and Himan's contemptible perjury. Accordingly, the photographs Mangum viewed when making her sham "identifications" of April 4th should never have been ordered to have been taken in the first place.

The unconstitutionally ordered photographs were then "used" by Nifong and Mangum and Gottlieb in what is quite probably the most procedurally tainted and flagrantly unconstitutional "lineup," ever. When you consider both the constitutionally impermissible "lineup" of April 4th, and the glaring inconsistencies in Crystal's prior "identifications" of March 16 and 23, but one conclusion obtains: The photographic "identification" of the Duke Three, and any hypothetically proffered in-court identification at trial must both be suppressed. The identifications are little more than nothing. Without them, of course, the corrupt prosecutor has less than nothing.

Inasmuch as criminal statutes are to be strictly construed, movants must, to be entitled to dismissal under NCGS 15A-954 (a)(4), show both flagrant violation of their constitutional rights [check] and that "there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution." This second requisite is what will make the Wannabelievers bang their pots and shout, "But they have the best defense team money can buy! Even if their constitutional rights were flagrantly violated, surely they have not been irreparably prejudiced in the preparation of their case." Stand up to the Wannabelievers, Oz. Tell them to sit down and shut up.

Strict construction of criminal statutes does not equate to tortured, absurd construction. Were it not for the corrupt prosecutor's self-interested need to indict so as to cement the Black vote before a primary election he would have lost but for the beneficent materialization of the Hoax, the depth and breadth of reasonable doubt would have become apparent at a probable cause hearing. Mr. Seligmann's alibi, as well as the totality of exculpatory evidence would have been force-fed down Nifong's throat, the matter never would have made it to the grand jury, and the indictments improvidently granted would never have been returned. Owing exclusively to Nifong's political expediency, the defendants were irreparably prejudiced from preparing, and presenting, their cases at the earliest, "speediest," appropriate time. Had they been permitted to do so, this railroad would have been stopped in its filthy tracks nearly seven months ago. Federal due process compels that their constitutional rights not be yet further flagrantly violated by being forced to defend, and pay to defend, baseless accusations forward to a dog-and-pony show trial.

Having never spoken to the accuser, Nifong has no clue as to her credibility (other than what he reads in the papers and blogs) and, thus, cannot claim to slog forward because he "believes her." That's a crock. For him, it never was, and is not now, about her. This travesty yet pends only to fuel Nifong's desperate hope of saving his professional skin on securing convictions rooted in jury nullification. While any such convictions would surely be overturned on appeal is of no moment. Justice delayed is justice denied.

Naturally, defense counsel must move for dismissal. It is disturbing that they have not yet done so. I don't profess to know their motives. I do know, from two decades of civil and criminal litigation practice, that, as surgeons make less money referring their patient candidates to physical therapy than by, um, actually performing surgery, criminal defense attorneys typically make less money forcing disposition by way of motion than they do trying cases.

That is not your instant concern, Oz. The ID Suppression motion begs to be decided. Now. Will you succumb to the oppressive coercion of the, um, "special interests?" Will you play Stephens? And Titus? And Pontius Pilate? Will you let this travesty ooze inexorably into the New Year? Will you blame inaction on the busy Holiday season? Will you remember Reade, and Collin, and Dave, and their families as this "Thanksgiving" and Christmas near? Will you actually do something of substance on or before December 15th? Will you cast yourself in the mold of the brave, and truly "Honorable," James E. Horton? Or will you continue to underwhelm? You've got to move, Oz. It is time. Time to define your place in history. Have you the brain, the heart, the courage?

Yours, etc.,

Michael F. McCusker