Thursday, January 11, 2007

I Have To Laugh!

In a 10:12 p.m. comment to this JinC post back in September, I loosely explained the trial lawyer's tactic of "shotgunning." The shotgun approach to evidentiary presentation is a revered old friend of crafty litigators possessed of formidable advocacy skills...and an atrociously weak case. Done well, shotgunning is art. The ultimate art of deception. After all, if you can't dazzle them with brilliance, baffle them with bullshit. Here, I speak not of brilliant intellect, but the brilliance of truth.

Another axiom of trial practice is that, "Good cases makes good lawyers." Indeed, it is expected that an advocate armed with the strength of dispositive facts will be able to shoot them, with scoped rifle precision, to score "bullseyes" at verdict. By natural extension, it is also said that, "Winning weak cases makes great lawyers."

I'm sure that Defendant Nifong has developed capable courtroom skills during his twenty eight years toiling in the bowels of Durham. I'm also sure that he knew early on, clearly by April 10th, that the alleged "Duke Rape case" was atrociously weak. In fact, he knew then that the accuser was wholly incredible, that there was no favorable disinterested eyewitness, that the scientific and forensic evidence wasn't there, and that this case was all but un-winnable. All but un-winnable but for that particularly nasty shotgun pellet called "Race Bait." See, Defendant Nifong fancied himself a great trial attorney, the proverbial cock o' the walk. Armed with a narcissistic, borderline personality disorder and the complicity of Hometown Players Titus and Stephens, Defendant Nifong was positive that he would be able to pull it off. He thought he'd simply shotgun his way through the gauntlet of discovery. He'd shotgun his way through a jury selection at which he'd seat as many of Durham County's stupidest, most hate-filled, pitchfork wielding racist Whiners as he could. Then he'd shotgun his way through trial, and blow up the target bearing Dave's, Reade's, and Collin's faces at its center. The other thing I'm sure of, however, is that Defendant Nifong had absolutely no idea just whom he had decided to fuck with, nor the strength of their resolve.

Defendant Nifong, you're not in Durham any more. Not the Durham you've known, anyway. No quick and dirty dispositions with the likes of Bourlon and Monks and L.R. "Lee" Castle today, tough guy. No more Ronnie and Kenny to guard your six. You're in the big time, now, Douche. You're bad! You're Nation-wide! Hell, you're big in Japan.

Which is why I have to laugh.

You actually thought you could shotgun your way through the Seligmanns? The Finnertys? The Evans's? Thought you'd blow away this team of defense attorneys, support staff and investigators? You really do seem to be certifiably insane. Too funny.

I'm sure you've read the defendants' latest motion. I bet you're re-reading it with Linwood right now. Isn't it is a thing of beauty? That, Defendant Nifong, is good lawyering. I hesitate to call it great, what with you and Crystal and Linwood all but handing them your heads on a silver platter. This shotgun approach, Defendant Nifong, is not art. In fact, I am struck by sudden mind's eye loop of the classic scene from The Odd Couple, in which a crestfallen, apron wearing Felix (Jack Lemon) bemoans Oscar's (Walter Matthau) lack of appreciation and culinary ignorance:

Felix: It's not spaghetti. It's linguini.
Oscar: Linguini?
Felix: Ha! You didn't even know that's linguini! It's not spaghetti. It's linguini!
Oscar: Linguini? [Throwing plate of linguini against the kitchen wall, where it momentarily sticks before starting its inexorable ooze to the floor]
Now it's garbage!

Oh, how my wife laughed when she read this

While the accuser now claims that “Adam” and “Matt” were both of the names used by Reade Seligmann, she provided vastly different descriptions for “Matt” and “Adam” on March 16: “Matt was heavy set with short hair and weighs 260lbs to 270lbs while “Adam” was “short, red cheeks, fluffy hair, stubby face with brown hair. Significantly, she also described “Brett” as “chubby” and claims that she saw a picture of him in the house. Similarly she now claims that Dave Evans is “Adam” and “Brett,” even though she gave two different descriptions for Adam and Brett on March 16. In short, the accuser has provided three different descriptions for what she now claims are only two men. Of course, if the SANE interview was truthful, then Dave Evans (as “Dan” who is really “Matt”) is “Matt,” “Adam,” and “Brett,” which means that the accuser has given three different descriptions for the same person . . . [and] if the accuser’s December 21 statement is to be believed, then “Dan” and “Brett” are the same person; yet in her written statement of April 6, she claimed that she was beaten by both Dan and Brett, and never informed police that it was the same person.

and this

According to the accuser’s most recent telling, she apparently spoke with someone at her father’s home for 7 minutes during the time that she was planning her nude dance routine, during the time that she was dancing, and then as she was fleeing to the car. In addition, the accuser was apparently talking with someone on her cell phone at the time that she was walking back into the house and being “kidnapped” into the bathroom. She finished her last conversation at the time the rape was beginning. None of these facts has ever been mentioned in any statement that the accuser has given to date in this case . . . [while] at the height of the sexual attack now claimed by the accuser, Reade Seligmann was having a telephone conversation.

and this

Since Dave Evans had a “5 o’clock shadow” in the picture the accuser was shown on April 4, and since her response was that he “looks like him without the mustache,” her claim now that a “mustache” is not a “mustache” indicates that her statement on April 4 is, again, no longer reliable.

and this

To believe the accuser’s present claim that her vagina was wiped with this towel, that her face was wiped with this towel, that Dave Evans was wiped with this towel, and that the floor was wiped with this towel, would require the belief that this towel could wipe away all DNA from her attackers on the accuser’s body, but leave the DNA of other, unknown males. It further requires the belief that the accuser’s face and vagina could be wiped with this towel, but leave no trace of her DNA on the towel. Further, it requires the belief that the floor could be wiped with this towel, but that it would only wipe Dave Evans’ DNA, leaving Matt Zash’s DNA behind on the floor. Finally, the towel, while apparently obliterating any DNA left behind by the alleged attackers on the accuser’s body, somehow contained only one of her attackers’ DNA, despite her multiple claims that two of her attackers penetrated her rectum and vagina with their penises.

and this

Since, at this point in time, Dave Evans can be one, two, three or even four different attackers, Reade Seligman can be one or two different attackers—and Collin Finnerty is an unidentified attacker—the accuser is now free to say that any of the Defendants did any act or all of the acts that she claims happened without regard to her previous statements or interviews. In short, by claiming that any one of the Defendants could be any or all of her attackers, the accuser has now created the equivalent of a “do over” in an attempt to try to make sense of her prior conflicting statements.

and this

Rather than attempt to identify her attackers as Matt, Brett and Adam, the accuser used the names of the Defendants in her most recent telling of her story. Specifically, the investigator noted that ‘Inv. Wilson asked [the accuser] to tell him whose names the guys were using on March 13, 2006 since she knows their real names.’ The State has repeatedly represented to this Court that no substantive discussions of this case took place with the accuser from April 6, 2006 until this last interview. The fact that the accuser now “knows their real names” indicates that she has learned their names from the extensive publicity that this case has received, publicity that has necessarily included the Defendants’ faces as well as their names. It cannot be known at this time with any reliability what else she has learned from this publicity. This, in turn, means that the accuser’s present recollection of who allegedly attacked her and how, has been irreparably tainted by this publicity and weighs strongly against any in-court identification by her of the Defendants.

and this hilarious little nugget of "oops" that slapped Liestoppers in their collective faces. Don't you know about strippers, dude? It's all about the shoes.

Oh, how we laughed when we read this

Was it a penis, or . . . “object”?

“I couldn’t say 100% that I saw them use their penis but it was certainly something.” LW 12/21/06 notes at 4.
“I believe it was their penis.” Id.
“It felt like a penis.” Id.
It penetrated me vaginally. [1]
It penetrated my butt. [2]
It did not use a condom. [3]
It raped me. [4]
It had sex with me for about two minutes in my vagina. [5]
It got frustrated because it couldn’t come. [5]
It had sex with me for 5 minutes. [6]
It then went into my anus for 2 minutes. [6]
I think it ejaculated. [7]

But was it a penis???
Alas, “I can’t say 100% that it was a penis that was used….” LW 12/21/06 notes at 4.

(1) Collin Finnerty "is the guy who assaulted me . . . . He put his penis in my anus and my vagina." Transcript of April 4 Powerpoint Identification, 1/11/07 Motion at 11 (Discovery at 1838). "At that point Matt then moved around to her front side where he penetrated her vagina.” Gottlieb Notes, 1/11/07 Motion at 11 (Discovery at 1817). "Matt had her legs and Brett was behind her and put his private part in her anus and in her vagina. . . . ." Himan's Interview, 1/11/07 Motion at 12 (Discovery at 1208).

(2) “That’s when Adam came around back and put his private part in my butt." Sane Interview, 1/11/07 Motion at 12 (Discovery at 539).

(3) “Adam said yes you can and then that was [when] Matt put his private part in me and did not use a condom." Sane Interview 1/11/07 Motion at 11 (Discovery at 538).

(4) “She stated that Brett was behind her and was the first to sodomize and then to rape her. She stated that Brett ejaculated . . . ." Gottlieb's Interview, 1/11/07 Motion at 12 (Discovery at 1817).

(5) "Matt started having sex with me in my vagina and he got frustrated because he said he couldn't come, He [sic] had sex with me for about 2 minutes in my vagina. . . ." Accuser's Handwritten Statement, 1/11/07 Motion at 12 (Discovery at 810).

(6) “Brett had sex with me in my vagina he stopped after about 5 minutes, then he put his penis in my anus for about 2 minutes." Accuser's Handwritten Statement, 1/11/07 Motion at 12 (Discovery at 810).

(7) "Matt had her legs and Brett was behind her and put his private part in her anus and in her vagina. She stated that she thinks he ejaculated . . . ." Himan's Interview, 1/11/07 Motion at 12 (Discovery at 1208). “She stated that Brett was behind her and was the first to sodomize and then to rape her. She stated that Brett ejaculated . . . ." Gottlieb's Interview, 1/11/07 Motion at 12 (Discovery at 1817).

We both just laughed and laughed. As I sat on the couch staring at her back as she read and laughed , she turned over her shoulder and said, "This sounds like a bad Woody Allen screenplay." And, hoo, boy, when we considered just how you'd feel being likened to Woody Allen, did we ever laugh and laugh all the harder.

Then, we read this

Meehan says writing an incomplete report violates his own firm's standards. "It was an error in judgment on my part. … It certainly was a big error," says Meehan. He says his firm wasn't trying to hide the information and that it released it when it was asked. But his client's behavior irks him, he says.

Nifong took six months to tell the players' defense attorneys about the other DNA, as required by law — and during that time, Nifong filed a court motion that stated he was not aware of any potentially exculpatory evidence.

The fact that Nifong withheld the information and knew it before he indicted their sons has outraged the parents of the accused. "You felt like someone hit you with a baseball bat. … It was almost too much to bear, as we sat there," says Kathy Seligmann, whose son, Reade, is among the three indicted players. "And [Nifong is] sitting 10 feet away from us."

It enraged Mary Ellen Finnerty, mother of Collin Finnerty, another indicted player. "I think [I felt] one of the strongest feelings of rage that I've had … I literally had to turn to my husband, because I was shaking from my head to my toe, and say, 'Hold me down,'" recalls Finnerty. Adds Seligmann, "And we had to hold on to each other because when you sit there and put two and two together and realize that it was calculated … set up to make these boys appear to be guilty of something they didn't do"

and stopped laughing.

Thankfully, Mrs. Evans' immediately following quote brought smiles back to our faces:

When asked what they would say to Nifong if he were in the room, Rae Evans, the mother of indicted player David Evans, says, "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families … and you will pay every day for the rest of your life.'"

May you both rot in hell.


Anonymous Anonymous said...

"Borderline personality disorder"? Borderline my ass. Nifong passed the border miles and miles ago.

11:10 PM  
Anonymous Anonymous said...

Do you always capitalize the "W" in "Whiners?"

11:12 PM  
Anonymous emmy said...

Nifong will be wishing for death by the time the families get through with him...he is ruined, finished...*his* life is over as he knew it...his dirty little dealings in Durham with his filthy friends, over...his days of smirking in court like a f*cking middle schooler, over...his days of pushing people around, over...bye bye, Mikey...

11:14 PM  
Anonymous Anonymous said...

From your mouth to God's ears ND.

As always, well worth waiting for.

Great piece.

12:34 AM  
Anonymous Anonymous said...

Beyond a great piece! You've made me furious; I want to bash the bastards.

5:50 AM  
Anonymous plymouthrock said...

After reading this, if I were Nifong, I'd be fearing for my safety. No wonder he had no comment on Thursday. Maybe he's fled to South America.

6:21 AM  
Blogger TombZ said...

11:12 -

I believe 'Whiners' is a professional designation, so, yes, capitalization is in order when applied to academics and others in the grievance industry.

9:13 AM  
Anonymous bill anderson said...

I would rather be hiding from John Gotti (RIP) than I would Rae Evans. She will devote her life to dealing with Nifong and Wilson and the rest of that scum that populates Durham. (Not all Durhamites are scum, obviously, but the scum has risen to the top in that wretched city.)

9:20 AM  
Anonymous Anonymous said...

Great post, Mike! Thank you! sic semper tyrannis

9:28 AM  
Anonymous Anonymous said...

to 5:50 am

'You want to bash the...' Can you even imagine what the Lax team and especially the Duke 3 families are feeling? What about Coach Ptessler?
This team as a whole has been through hell and back these past ten months!!
What does it take? WHERE THE HELL IS THE AG ?

2:54 PM  
Anonymous Anonymous said...


I apologize for asking this question in the event you have already addressed it- what are the odds the case goes beyond the next prelim?

Assuming it does, won't the defense be compelled to identify the 20 non-witnesses to the non-attack? How would the 20 be identified, by presenting all the partygoers in Court and having Crystal identify any 20 non-witnesses to the non-attack?

5:17 PM  
Anonymous kbp said...

Great One Mike!!

Rae Evans, the mother of indicted player David Evans, says, "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families … and you will pay every day for the rest of your life.'"

We should all be laughing for the next few years!

10:59 AM  
Anonymous Anonymous said...

Please advise how I can get in touch with the Three Mothers so I can be active in their crusade.

Mother if a son.

9:56 PM  
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5:37 AM  

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