Duke Rape Case Defense: Throw Out DA Nifong and Photo ID


May 1 2006 — -- Accused Duke lacrosse player Reade Seligmann's attorneys want Durham County District Attorney Mike Nifong thrown off the case. Today, they filed a legal motion specifically asking for it.

"DA Mike Nifong neglected his duty as a prosecutor to seek the truth and a fair prosecution," the defense's motion reads.

Six motions and four affidavits were filed just 24 hours before Nifong's Tuesday election in which he's fighting to keep his seat. Nifong is being challenged by former prosecutor Freda Black and private lawyer Keith Bishop. Any candidate needs 40 percent plus one vote to win the election. If Nifong loses the election, he could be out of office before the rape trial begins.

The motion argues that the election has affected Nifong's approach to the case and accuses him of using the Duke investigation to his political advantage.

"He [Nifong] created a conflict between his professional duties and the search for truth, and his personal vested interest in getting elected," the motion says.

"In his zeal to make national headlines and win a hotly contested primary, the DA Nifong intentionally ignored other evidence which was inconsistent with rape at the expense of [Seligmann] and all other Duke lacrosse players," the motion continues. "All this evidence shows that DA Nifong's rape case was a post-hoc shakedown."

Another motion filed by the defense attacks the photo lineup in which the alleged victim identified Seligmann, co-defendant Collin Finnerty, and a third unknown student as her alleged rapists. The positive identification is the only known evidence connecting the defendants to the alleged crime.

The motion says the photo identification "was unconstitutional and illegal in that it was so unnecessarily suggestive and conducive to irreparable mistakes and misidentification as to deny the defendant due process of law."

Defense lawyers have criticize the validity of the photo lineup, which consisted of a sequence of 46 pictures, all of which were of the Duke lacrosse team members. The lawyers have said the lineup should have included non-lacrosse players.

In today's motion, Seligmann's lawyers criticized Nifong's involvement in the lineup.

"He ignored the actual facts and improperly injected himself in the photographic lineup proceedings, which violates police policy," the motion reads.

An independent expert contacted by ABC News echoed defense arguments that the police lineup had serious flaws. Gary Wells, an Iowa State University experimental social psychologist, described the lineup as "a multiple choice test without any wrong answers." He said including photos of nonsuspects -- which he called "fillers" -- checked the alleged victim's credibility by requiring her to choose people who actually could have committed the crime.

The motions filed also requested the accuser's cell phone records. It is unclear what purpose this would serve in the investigation. To date, Seligmann's cell phone records, seen by ABC news, have figured prominently as part of his alibi defense.

In the motion, defense lawyers argue that the accuser's telephone "contains valuable information including records of calls made, received, address books and saved voicemail messages. This information may constitute or lead to important impeachment or other exculpatory evidence."

If that information is provided to the defense, the accuser's phone records could tell where she was before arriving at the lacrosse team party. The defense timeline has her arriving at 610 N. Buchanan at 11:45 p.m. At roughly 11:50 p.m., Jason Bissey, a neighbor who lives next door to the house where the party took place, saw the accuser walking to the backyard entrance of the house.

Last week, Seligmann's attorney, J. Kirk Osborn, filed a motion requesting documents that detail the accuser's personal, medical, criminal, and educational history. Those materials, routinely requested by defense lawyers in rape cases, were sought in order to assess and attack the accuser's credibility on the grounds that she "has more than one version of her story … disputed by irrefutable facts."

Today's motions also request a reduction of Seligmann's bond from $400,000 to $40,000. The case has been so widely publicized, the defense team argues, that Seligmann can hardly go anywhere without being recognized. Therefore, he should not be considered a flight risk.

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