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Defense in Duke rape case keeps swinging

Filan: The D.A. is not withholding crucial evidence from the defense

NBC VIDEO
Not enough info in Duke rape case?
Oct. 12: Defense attorneys in the Duke rape case say the prosecutor’s office has handed over incomplete records.  MSNBC senior legal analyst Susan Filan discusses.
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Susan Filan
Senior legal analyst
The defense has come out swinging once again.  They have written a letter to D.A. Mike Nifong accusing him of withholding crucial evidence in the Duke lacrosse rape case.   They claim the D.A. has not turned over the contents of statements the accuser made to the D.A., nor have they received key police reports. 

A copy of that letter was placed in court files, and a copy was sent to the judge presiding over the trial and to other attorneys.   They might as well have taken out an ad on national television as well in order to get their message across.  Because the parties are under a "gag" order now, the only way the defense can continue to try their case in the media and not in the courtroom is to file motions or write letters that become part of the court file which is a public record.

The letter was delivered to the D.A. when he was out of town attending a conference and could not be reached for comment.

The D.A. is not withholding crucial evidence from the defense.  My position is the D.A. may have a work product privilege which precludes him from having to disclose the contents of his conversations with witnesses when preparing their testimony for trial.

More importantly, the D.A. has no reason to withhold crucial evidence from the defense.  A prosecutor who plays such a foolish game risks having that evidence precluded at trial.  In this case, if the accuser's testimony is ruled inadmissible because it was not properly disclosed to the defense prior to trial, the D.A. has no case.  This case cannot proceed to trial without the victim taking the witness stand and testifying under oath. 

Her cross-examination is going to be one of the most brutal and aggressive cross-examinations in trial history.   Usually, in a rape case, the defense has to be careful not to be too tough on the victim lest they alienate a potentially sympathetic jury.  But in this case, the defense is going to go scorched earth approach.   The defense is so convinced their clients are innocent and that the victim is lying, they cannot afford to do anything but go nuclear.

The D.A. has expressed confidence in his case.  The D.A. has a duty not to prosecute a case he knows he cannot prove beyond a reasonable doubt.   But the D.A. does not have a duty to drop a tough case.  This is a tough case, no doubt, and it may ultimately prove to be unwinnable, in large part because of pre-trial publicity and a prejudiced populace from which to select a jury of one's peers.    But if the D.A. believes a crime was committed, no matter how difficult the case, or how problematic the victim, the D.A. has an obligation to take the case to trial and let the jury decide.

Justice is not a game, and hide the ball is not an option.

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