Nifong The Painmaker

On the Friday before Easter, District Attorney Nifong announced that he would seek indictments the following Monday. Certainly his announcement made for an awful holiday weekend for families uncertain who would be indicted. On the Friday before Mother's Day, Nifong announced that he would seek a third indictment the Monday after the holiday. Again his words made for a tormented holiday for the families involved. Today, the Friday before Christmas, Nifong sends another holiday greeting declaring his intention to carry on and re-write the script once more. He appears intent on squeezing every last ounce of pain out of these families before he gives up.

If what appears to be well orchestrated prosecution spin is any indication, Nifong’s dismissal of the first-degree rape charges is a ploy intended to help him tiptoe around the DNA evidence and the conspiracy to withhold it from the defense. As has been the case throughout the hoax, Nifong turns to loyal enablers Duff Wilson, Victoria Peterson, and the infamous unknown person close to the investigation to make an anemic effort to portray his prosecution as one with merit.

The New York Times Duff Wilson goes to bat for Nifong by presenting comments from the co-chair of Nifong’s citizen election committee, Victoria Peterson. Curiously, or not, Wilson fails to mention her affiliation with Nifong, describing Ms. Peterson as a supporter of the accuser and a friend of the family.

“Today, one supporter of the woman, whose identity has not been revealed, said she still believes her.”

“I think when a woman has been sexually assaulted and sexually abused and she can’t explain everything, when you have had three men attacking you, I can understand if she wouldn’t know if she was raped by a penis or other item,” said Victoria Peterson, who is active in the black community in Durham and is a friend of the accuser’s family.

To help make his case, Wilson also returns to the unknown person close to the investigation.

“When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.”

"With the absence of D.N.A. and her not knowing what was going on, it’s the right thing to do and it probably makes the rest of the case stronger," the source said.”

NCCU Law Professor Irving Joyner, who has been monitoring Nifong’s handling of the case for the NAACP, makes a similar effort in the News & Observer to characterize the dismissal of the charges as a strengthening of the case.

“But Irving Joyner, a professor of law at N.C. Central University, said Nifong's decision to drop the rape charges actually could strengthen the case for sexual assault and kidnapping because it will de-emphasize the importance of DNA results that failed to provide evidence of rape.

“In North Carolina, the criminal penalties for first degree rape and first degree sexual assault are the same, he said, meaning the accused men are in no less peril.

“If her [the accuser’s] testimony is that she was moved from one part of the house to another against her will and there was sexual touching, then he [Nifong] can build a case on those charges,” said Joyner, who was been monitoring the lacrosse case on behalf of the state NAACP.

While turning the liabilities of exonerating DNA evidence, and a conspiracy to withhold that evidence, into assets may have been Nifong’s intention, Professor Joyner notes that this desperate act is foolhardy at best.

“But Joyner, who said this week that Nifong should consider recusing himself from the case, said that defense attorneys probably will use the accuser’s confusion about whether she was raped to undermine her credibility in the eyes of jurors.

“The ability of the state to prove its case is going to be burdened by the inconsistent statements. No doubt about that,” Joyner said.”

In a press conference in response to Nifong’s new script for the Hoax, esteemed defense attorney Wade Smith appealed to Nifong’s humanity by asking the District Attorney to “do the honorable thing." (We won’t hold our breath on that one.) Joe Cheshire took a different tact and savaged Nifong’s attempt to again reinvent the Hoax. In graphic detail, Mr. Cheshire tore the last script apart as he listed each of the numerous times that the accuser has detailed with great description being vaginally penetrated by a penis.

In dropping the rape charges, DA Nifong notes that the accuser is now uncertain whether she was actually raped or penetrated vaginally by something other than a penis. From the NYT:

“The document said that in an interview with investigator Linwood Wilson, “the victim in this case indicated that while she initially believed that she had been vaginally penetrated by a male sex organ (penis), she cannot at this time testify with certainly that a penis was the body part that penetrated her vagina.”

“Since penetration of the vagina by a penis is one of the elements of this offense that the State must prove beyond a reasonable doubt, and since there is no scientific or other evidence independent of the victim’s testimony that would corroborate specifically penetration by a penis, the state is unable to meet its burden of proof with respect to this offense.”

As Cheshire noted, one of the only consistencies in the various versions of the script presented by the accuser has been the use of a penis. Absent the rape charge, DA Nifong is still left with much explaining to do. Adding a new version of events to the stack of previous tales does nothing but work to further destroy the credibility of both the District Attorney and the Hoax-tress. Even if one were to believe that a person assaulted from behind may not know whether or not penetration was made by penis, other body part, or object, it does not change the fact that the accuser has claimed to be vaginally penetrated from the front as well as from behind.

"Matt then raped her vaginally from the front," she wrote in one of her
variations.

Contrary to the prosecution spin, the dismissal of the rape charges do not take the DNA evidence and the conspiracy to withhold it out of play. Even if Nifong is able to sell the local and media zealots on the idea that the accuser may have been mistaken about the rape accusation, the sexual assault charges still rest shakily on the prevarications of the accuser. This many fables all include graphic descriptions of physical and sexual contact that have been disproved by the DNA testing Nifong conspired to withhold.

Dropping the rape charges does not erase the absence of DNA from any player in or on the accuser nor does it devalue the scientific expectation that it would have been found if her tales of being raped anally and orally are to be believed. Doing away with the rape charges does not add merit to the accusers suggestion that two of her assailants ejaculated and that she had the ejaculated sperm in her mouth before spitting on to the floor near the toilet. Her description of that event was so detailed it even included the graphic note that the encounter had left her with bad breath as a result. While it may be technically easier for Nifong to make a case without the rape charges, and certainly it appears that this is his intention, it is nonsensical to suggest that the total absence of the accused’s DNA is suddenly made irrelevant.

The nonsense of it all did not, however, prevent local lunatic John Bourlon from taking up for his pal Mike. Bourlon went so far off the deep end as to predict that the falsely accused young men would now plead to the remaining charges.

Another advantage to the defense with this latest prosecution concoction is likely to be found in the support it offers for their motion to suppress the photo identifications. Uncertainty over what body part may have been used and a change to an assault only from behind will likely make it more difficult to support the notion that the identifications were anything more than a guessing game with no wrong answers.

Most importantly for the defense, however, is the apparent admission by the District Attorney, in today’s filing to drop the case, that his case is supported by no evidence other than the word of the truth challenged accuser.

As the Hoax moves along it becomes more transparent and it becomes increasingly apparent that DA Nifong’s ambition was not merely to get himself elected but also to inflict as much pain as possible along the way.