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Nancy Grace
Breaking News in Duke Rape Investigation
Aired May 02, 2006 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
NANCY GRACE, HOST: Tonight, breaking developments, the Duke rape investigation. Tonight, the Durham district attorney in an electoral showdown. We should know in just moments whether his constituents vote him out. Will there be a new DA come trial time?
Has this accuser cried wolf before? What became of the additional DNA evidence? Were the photos of the party timestamps altered? And in a rare move, why is the defense trying to throw the actual DA off the trial? And just yesterday, a Duke committee OKs the next lacrosse season to proceed as normal, as if these gang rape allegations never happened.
Good evening, everybody. I`m Nancy Grace. I want to thank you for being with us tonight. Tonight, live to North Carolina, breaking developments in the Duke rape investigation, the defense on the offense, trying to throw the district attorney off the case, attacking the alleged victim`s line-up identifications and demanding cell phone records of the student-turned-stripper accusing them of rape. And tonight, everybody, we are taking your calls.
(BEGIN VIDEO CLIP)
MIKE NIFONG, DURHAM DISTRICT ATTORNEY: There have been people who`ve said that I should have given this case up a long time ago.
Some people have accused me of orchestrating this whole thing as an election stunt.
This is not about an election, this is about doing justice. Part of the job of being the district attorney is not just convicting the guilty, part of the job is freeing the innocent.
For the sake of our system of justice, I encourage everyone to step back from the situation and allow that system to do its job.
(END VIDEO CLIP)
GRACE: Let`s go straight out to Kevin Miller, reporter with WPTF radio. But first, Rosie (ph), do we have any of the polling results? Do we know anything about the election? OK, we`re going to get those in just a few moments. We`ll put them straight up. Kevin Miller, back to you. What is the latest?
KEVIN MILLER, WPTF RADIO: Well, the latest is the polls closed about a half an hour ago, Nancy, and according to internal numbers, exit polls and people I`ve talked to all day in Durham County, it`s anybody`s guess. What has to happen tonight is either Mike Nifong, Freda Black or Keith Bishop have to get over 40 percent of the vote. If no one does that, we will have a run-off between the top two contenders, and that will be May 30 of this month.
GRACE: So bottom line, whoever wins in this primary wins, correct?
K. MILLER: Right. This is a Democratic primary. There is no Republican, although you could have a winner, but not with 40 percent of the vote. So you could have a runoff May 30. So again, no Republican. It`s all Democrats. This will decide who will be Durham`s next district attorney.
GRACE: Clark, tell me about the contesters.
CLARK GOLDBAND, NANCY GRACE INTERNET REPORTER: Well, here are the three people, Nancy, who this race is between. And first, let me tell you, we`re hearing it`s currently split about 45 percent between Nifong and Black -- this candidate here, Keith Bishop, 10 percent, what we`re hearing. None of these results are official. These are very early exit polls, but these are the numbers we have. And Nancy, if that`s the case, Nifong and Black are going to go all night, down to the wire.
Let`s talk about DA Mike Nifong. He`s been in the DA`s office for 25 years but was appointed DA last year.
GRACE: Now, wait. Kevin Miller, he`s been in the DA`s office for 25 years, but not as the elected DA, correct?
K. MILLER: Right. He was appointed by Governor Mike Easley when Jim Hardin (ph) got a judge appointment. Jim Hardin has tried a lot of the big cases here, most notably the Mike Peterson novelist convicted murder case about a couple years ago. Mike Nifong, again, Nancy, appointed by the governor, and he was Jim Hardin`s deputy.
GRACE: OK, so he was an assistant district attorney for many, many years, and then he got appointed acting DA when the other DA left, right?
K. MILLER: That is correct, Nancy.
GRACE: And Kevin, if I`m correct, Freda Black actually tried part of the case against novelist Michael Peterson, who killed his wife.
K. MILLER: Nancy, it is correct because I remember you covering that case two years ago here in Durham, and Freda Black did to that. But when Mike Nifong was appointed, he did ask for her resignation, according to her, and she turned it in.
GRACE: OK. Back to you, Clark.
GOLDBAND: So you know, as we just heard, Nancy, this sets up an interesting scenario. Imagine if you told someone to leave the office when you were appointed, and she wins in the election. So this is a subplot we`re watching. We move on to Freda Black. As you said, she was on the Michael Peterson case. And lastly, Keith Bishop. He`s an interesting character, Nancy. He was arrested in 1998, never charged with anything -- yes?
GRACE: Arrested for?
GOLDBAND: For not stopping for the cops when they pulled him over.
GRACE: OK, enough said.
Back to you, Kevin Miller. Am I understanding correctly that at this juncture, we think Bishop is out?
K. MILLER: Yes, Bishop`s really not a serious candidate.
GRACE: OK.
K. MILLER: He could be a spoiler, though, which could cause a runoff, Nancy.
GRACE: Oh! I don`t care about politics, all I care about is this case proceeding. And another issue, Kevin Miller, a lot has been said about Nifong using this rape case as a way to get reelected. But correct me if I`m wrong, Kevin, didn`t he hold off on taking the third alleged suspect to the grand jury because he didn`t want to use that on the eve of the election?
K. MILLER: That`s what he did say. He said no indictments will come until the next time the grand jury meets, which would be May 15, Nancy.
GRACE: OK, Kevin, back to the facts surrounding the rape allegations. What`s the latest?
K. MILLER: Well, it just never stops here. Yesterday, you had Kirk Osborne, an attorney for Reade Seligmann, file an 89-page motion to get Mike Nifong...
GRACE: Whew!
K. MILLER: ... kicked off the case, basically saying that he has used this -- he has not looked for innocence, he`s not looked for the pursuit of truth as a prosecutor because he gave over 70 interviews to the national media, that the photo line-up that the accuser victim went through was not copacetic with North Carolina law, and he wants not only Mike Nifong kicked off the case, he wants the entire Durham district attorney`s office kicked off, so you`d have to have a special prosecutor appointed by the state`s attorney general.
GRACE: OK, to Eleanor Dixon, current felony prosecutor. Eleanor, I would say maybe the last seven years I was prosecuting, very rarely did I have a trial where they didn`t try to throw the prosecutor off the case. Why? They don`t want you to try the case. They don`t want you specifically to try the case. Why? They think you might win it. So doesn`t happen all the time, but this is a kind of an unusual move. What do you think?
ELEANOR DIXON, PROSECUTOR: Well, I think it is a little unusual, and they`re probably doing it, of course, to get him off the case and to make sure that -- and maybe there`s the win factor. But you really can`t do that unless there`s some type of conflict of interest, perhaps if he was a defense attorney before he represented one of the people...
GRACE: Whoa! Whoa! Who!
DIXON: ... or he has some sort of business interests...
GRACE: Wait a minute, El! Nifong, 44 percent. Freda Black, 46 percent. Bishop, the spoiler, 10 percent. OK, right now, it is looking as if Nifong may not be the prosecuting district attorney. Now, hold on, Eleanor, I`ll come right back to you.
To Kevin Miller. What has Freda Black had to say about these rape allegations?
K. MILLER: Well, Freda Black, Nancy, should be doing very well because she has been on TV and she has been on radio here, and what she has been saying, she`s been holding press conferences and saying, quote, when the cameras leave, when all the national media leaves, she`ll be here in Durham and she`ll restore an order of sanity to the court system here in Durham. She`s been highly critical, actually, which will hurt her, if she is the elected DA, because she`s been critical not only of Mike Nifong but the entire Durham district police -- district attorney`s office, saying they`ve bungled the case.
GRACE: Have they?
K. MILLER: That`s up to a court to decide, Nancy.
GRACE: Well, Kevin...
K. MILLER: I mean, really. I mean, look, we`ve got...
GRACE: Kevin, I thought we knew each other better than that.
(LAUGHTER)
GRACE: OK. I have a very good BS detector, OK? Now, let me ask you again -- let me rephrase the question, Judge.
(LAUGHTER)
GRACE: What are Freda Black`s allegations as to how the DA`s office has alleged bungled the investigation?
K. MILLER: Well, she...
GRACE: Let me see you get out of that one.
K. MILLER: Well, Nancy, she said, essentially, that giving those 70 interviews, the 70 interviews that he gave originally, the content of what he said...
GRACE: And she said that during an interview. OK. Go ahead.
K. MILLER: Well, no, no, no, no, Nancy. Here, let me clarify. She said it at the Durham district`s attorney forum that they had at the courthouse, and she also held a press conference denouncing the press, but holding a press conference while denouncing the press.
GRACE: OK, take a listen to this.
(BEGIN VIDEO CLIP)
FREDA BLACK, DURHAM DISTRICT ATTORNEY CANDIDATE: I do think the lacrosse case has affected this campaign, affected the election, and will affect the outcome. A number of people have contacted a me, dozens and dozens of them, and they are very upset about the way the investigation has been run, especially by the interim district attorney. And I believe it`ll have a positive effect on the outcome of it.
Well, I`ve had a number of people suggest to me that because he did not have name recognition prior to the lacrosse case, that he tried to use this case in order to obtain recognition, name recognition, to try to beat me.
(END VIDEO CLIP)
GRACE: Is that what we`re calling it now, Kevin, the lacrosse case? That`s like putting perfume on a pig. This is an alleged gang rape case, but we`re calling it the lacrosse case? OK, I`m not taking up issue with Freda Black.
K. MILLER: No, no, no. But Nancy, it`s interesting that you say that because that was the same type of language that was used in the motion the day before the election filed by the Seligmann`s attorneys. Why didn`t they wait a couple days, until after the election? They accused Mike Nifong of doing this for political purposes. These attorneys, from what I understand, don`t really practice well in Durham County. Usually, the procedure in Durham County is you wait for the prosecution to give the defense discovery, therefore, you know what you`re up against before you file motions.
GRACE: And of course, to Michael Mazzariello, defense attorney. There`s nothing like trying the case in the press. They`re accusing the prosecution of using this case for his own reelection, but yet they, on the eve of the election, file public documents to have him thrown off the case, skewering him for the public.
MICHAEL MAZZARIELLO, DEFENSE ATTORNEY: Eighty-nine pages. They had a lot to say. And I think it`s a frivolous motion, trying to get the district attorney off the case, Nancy. However, to answer the man that just spoke, there are times, as a defense attorney, you want to preempt or prevent the district attorney from doing something or find out in advance of the indictment. So it could be there`s information in there that they need. But Nancy, right before the election, this is -- both sides are making it comical at the expense of the victim here.
GRACE: Well, I don`t necessarily think it`s comical. To defense attorney Greg Skordas, joining us out of Salt Lake City. Greg, in my mind, this is totally ruining the defense`s possibility of getting a venue change because once they try to argue, Look, the public, the jury pool has been tainted by all the press -- they`re part of the taint. They`re part of the stench of the taint of the jury pool.
GREG SKORDAS, DEFENSE ATTORNEY: Right. And filing a motion like that and filing it on the eve of an election, knowing it`s going to get publicity, knowing you`re going to talk about it, other people are going to talk about it, shoots them right in the foot, like you say. They`re not going to come and say, Well, Nifong has so tainted our jury pool that we can`t get a fair trial, because then he`s going to turn right around and point at them and say, You`ve done the exact same thing.
GRACE: Take a listen. Let`s give equal time to what District Attorney Nifong has to say.
(BEGIN VIDEO CLIP)
NIFONG: Some people have accused me of orchestrating this whole thing as an election stunt. How could anybody know how something like this is going to affect anything? And will it have an effect? Probably. What kind of effect will it have? Who knows. It`s not like there were any accurate polls of how people were going to vote before this happened.
I`m sure that if I win the primary, then people are going to say that it helped me. And if I lose the primary, they`re going to say that it hurt me. And the fact is, none of us are going to know.
As to district attorney, you do not get to choose what crimes occur or when they occur. You have to deal with the situation as it exists. This is not about an election. This is about doing justice. This is about doing justice for the victim in this case, and this is about doing justice for people who might have the finger pointed at them, when they did not do anything themselves to cause this. And I`m talking about the Duke lacrosse team here.
(END VIDEO CLIP)
GRACE: To the former head of the FBI Houston bureau, Don Clark. Listen, Don, I watched Freda Black help try that murder case. It was totally a circumstantial case against Michael Peterson, who killed his wife, said the jury. Long story short, she`s a great trial lawyer. But on the other hand, Nifong -- what was the allegation, that he planned the whole gang rape allegation to somehow use to it his advantage just before election time? I don`t see it.
And Don, you`ve been on the inside of so many violent crime investigations. They are claiming that Nifong should be thrown of the case because he`s too zealous.
DON CLARK, FORMER HEAD OF FBI HOUSTON BUREAU: Nancy, that`s just defense talk there. And I think the defense is going to use any tactic that he can to really disrupt and try, number one, to taint the jury pool and plant seeds in their mind as to what they may come out with.
But Nancy, listen, what the investigators have to do and the prosecutors -- and if you`re the prosecutor and I`m running the investigative team here for you, what I need to do is just make sure that you have credible evidence that`s consistent with our policies and rules of law, so that you can present it before a jury for trial. And if we can do that, then I think we can forget about all of this political nonsense that`s going on here because it really shouldn`t have a play here. I know it does, realistically, in some sense, but in terms of the investigators putting the case together, they could care less about that. Just gather the evidence and get it to you, so you can prosecute it.
GRACE: Right now, we are following the election results moment by moment. Will there be a new district attorney by trial time in the Duke lacrosse gang rape case? That`s what it`s all about. You know what? We haven`t even touched the allegations as to the evidence behind this case. We`ll get straight into that when we get back, and we`ll begin taking your calls, both on the outcome of the election and how it may affect the evidence.
But quickly, to tonight`s "Case Alert." Former Tennessee elementary school teacher Pam Rogers (ph) behind bars again. Rosie, do not show the video! Authorities say Rogers, convicted of having sex with an underage student, sent multiple suggestive cell phone videos -- and I have seen them, they are suggestive -- to the boy victim. Rogers, previously ordered to have no contact with this boy, now faces up to eight years behind bars.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: What do we want?
UNIDENTIFIED FEMALE: Justice!
UNIDENTIFIED MALE: Justice!
UNIDENTIFIED FEMALE: Justice!
UNIDENTIFIED MALE: And when do we want it?
UNIDENTIFIED MALE: Now!
UNIDENTIFIED FEMALE: Now!
UNIDENTIFIED MALE: Now!
UNIDENTIFIED MALE: What do we want?
UNIDENTIFIED FEMALE: Justice.
UNIDENTIFIED MALE: Justice.
UNIDENTIFIED FEMALE: Justice.
UNIDENTIFIED MALE: And when do we want it?
UNIDENTIFIED MALE: Now!
UNIDENTIFIED FEMALE: Now!
UNIDENTIFIED FEMALE: Now!
(END VIDEO CLIP)
GRACE: Welcome back. Rosie, let`s see those results of the election. On the eve of the election, the defense in the Duke lacrosse investigation -- rape investigation files a motion to have the district attorney thrown off the case. OK, Rosie, let me see those results as soon as you can.
Let`s go out to the calls. Sherry in Canada. Hi, Sherry.
UNIDENTIFIED FEMALE: Good evening. Thank you, Nancy. What bothers me in this case is the fact that we are focused on the political career of the prosecution, as opposed to losing sight of the fact that we have an alleged rape victim, an actual human being, a person. And I`m wondering what facts have been presented to date to indicate that a crime has actually been committed.
GRACE: You know what? You`re right. And I would like to point out, on this show, we have been focused on the facts of this case. Today is election day for the district attorney, and that`s why we`re reporting on it tonight, Sherry. But I agree with you.
As a matter of fact, let`s go straight back out to Kevin Miller. Let`s talk about the facts. Now, Sherry in Canada is asking about the facts that tend to show a rape did occur. What do we know?
K. MILLER: Well, that there was a party March 13, that we have the 911 tapes, Nancy, that a rape kit was performed at Duke Medical Center. You have the accuser victim making her statements. You have the second dancer. You have the DNA results that came back not in favor of the prosecutor. You have the second DNA results coming back. You have the ATM tapes that -- the photos. There`s a lot of evidence here. Making sense of it, it changes every day.
GRACE: Well, to me, the strongest evidence -- to answer Sherry`s question, Sherry in Canada -- is that the rape kit nurse -- and those are the ATM photos that Kevin`s talking about, the defense is going to try to use this to show this young man was at an ATM when they claim the alleged rape went down. But back to what I consider the strongest evidence, Sherry, is that the rape examiner, the nurse-practitioner, said that there was vaginal and anal trauma. Correct, Ellie?
UNIDENTIFIED FEMALE: That`s right.
GRACE: And District Attorney Nifong made a public statement, saying he believed a rape occurred.
Let`s go to Joy in California. Hi, Joy.
UNIDENTIFIED FEMALE: Hi, Nancy. I have a question about the teenage -- when she was a teenager, she said that she was raped when she was 14, but they didn`t -- she didn`t tell the police until she was 17. Well, she was still a minor, and I wondered why that wasn`t all expunged and taken off the record so the defense team shouldn`t have been able to get it.
GRACE: What about it, Clark?
GOLDBAND: Well, Nancy, we have some news crossing here. With 52 of 56 of the precincts in, DA Nifong is at 45 percent, Black 42 percent. So we see the DA With a 3-point lead, Nancy. Of course, he has to score over 40 percent of the vote to win fair and square and not go on to a special...
GRACE: OK, I want to answer Joy`s question. To Ellie. Ellie, the prior rape allegation.
UNIDENTIFIED FEMALE: Right. In 1996, the alleged victim in this case said that three years prior, she was raped by three men, one of whom, who was an acquaintance of hers. And as far as we know, she filed this report, but it was never followed up on. No arrests made in the case.
GRACE: OK. That should answer your question, Joy in California.
Very quickly, I want to go out to Eleanor Dixon, sex crimes prosecutor. Eleanor, bottom line is, will this jury know that there had been rape allegations on her part before?
DIXON: Probably not. Under rape shield, that type of information is usually kept out unless there`s a good reason. And the thing I`d like to focus on -- people keep saying this is a prior false allegation, but there`s been no evidence of any kind that it was false. I mean, she said it, but nothing -- just because nothing was done doesn`t mean that it was a false allegation. My thoughts are, this will be kept out under rape shield.
GRACE: And Ellie, didn`t the husband or the boyfriend...
UNIDENTIFIED FEMALE: Right.
GRACE: How did that go?
UNIDENTIFIED FEMALE: Well, her husband -- apparently, the reason why she came forward three years after this attack occurred was because her -- I believe he was her fiance at the time, now her ex-husband, urged her to come forward. And he claims that one of the men who attacked her was her boyfriend at the time, who was an adult. And remember, she was only 14.
GRACE: She was 14.
UNIDENTIFIED FEMALE: Exactly.
GRACE: One of the boyfriends allegedly adult...
UNIDENTIFIED FEMALE: Yes.
GRACE: The boyfriend allegedly an adult...
UNIDENTIFIED FEMALE: Right.
GRACE: ... with two others.
UNIDENTIFIED FEMALE: Right. Two others.
GRACE: And she tells the husband about it three years after the fact.
UNIDENTIFIED FEMALE: Exactly.
GRACE: And he urges her to go forward.
UNIDENTIFIED FEMALE: That`s right.
GRACE: Gotcha.
UNIDENTIFIED FEMALE: Yes.
GRACE: Those are the facts surrounding the alleged prior rape. Very quickly, we will be back with the facts surrounding this case.
To "Trial Tracking." Michael Skakel, accused and convicted of murdering 15-year-old Martha Moxley, his then neighbor in an exclusive Connecticut enclave, 1995, tonight points the finger at two other men for the murder, Skakel now seeking a new trial based on the claim by Tony (ph) Bryant, cousin of basketball great Kobe Bryant, that two of his friends actually did the deed. Prosecutors skeptical.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
NIFONG: There are certain people who`ve told me that the timing of this could not be better for the election. That had nothing to do with the timing in this case. It had nothing to do with anything about this, other than the fact that what happened here was one of the worst things that`s happened since I have become district attorney.
(END VIDEO CLIP)
GRACE: Just in, we are reporting breaking news regarding the reelection of District Attorney Nifong there in North Carolina. If we have that, Rosie, let`s put it up. Nifong at 45 percent, Freda Black at 42 percent, the spoiler, Bishop, at 13 percent. The issue is, though, there`s only 500 votes between the 42 percent and the 45 percent. So we`re still - - have they all reported in, Clark?
GOLDBAND: No, Nancy. We`re short three right now. And the whole question turns into turnout. Whoever can turn more of the voters out is going to be the victor.
GRACE: to Irving Joyner, NCCU law professor. Professor Joyner, how does this affect the case, The outcome of this election?
PROF. IRVING JOYNER, NCCU: Well, hopefully, it will not affect the outcome of the case at all. Irrespective of who the district attorney is, we still want to proceed with the prosecution, where there is probable cause to do so. And I think, clearly, that probable cause has been established, and any district attorney would be obligated to go forward to see exactly what a jury will do.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: ... horrible disciplinary record of the lacrosse team reflects the extent to which they let down a lot of people who trusted them, including their coach, their families, and the university.
(END VIDEO CLIP)
GRACE: And right now we are reporting breaking news out of North Carolina. It seems as if -- nearly all precincts are in -- District Attorney incumbent Nifong currently has 45 percent of the vote. Main contender, female, Freda Black, 42 percent of the vote. Bishop trailing, 13 percent of the vote.
What, if any, effect will this have on the trial, euphemistically called the lacrosse trial? But what it is, is a gang rape trial of some of Duke University`s elite lacrosse players.
Let`s go straight out to the phones, Rosie.
Chelly in Utah. Hi, Chelly.
CALLER: Hi, Nancy. My question is -- I have been raped twice and the second time by a man who jumped parole in Wyoming for a rape charge. And my question is: What is the chance, if these boys are convicted, that they are going to spend more than a year or two in jail?
GRACE: Well, I would say there`s a very, very good chance.
Kevin Miller with WPTF Radio, joining us from Raleigh, North Carolina, the minimum there, I assume, is five to 20?
K. MILLER: Nancy, according to Mike Nifong, this is the second most serious offense someone can be charged with in North Carolina, first-degree rape. The other is first-degree murder.
GRACE: OK, there`s your answer, Chelly.
Let`s go out to Joe in Florida. Hi, Joe.
CALLER: Hi there, Nancy. Do you think that Duke University acted prematurely in calling off the lacrosse season, bearing, you know, from public pressure, when they should have waited for the presumed innocent to work itself out?
GRACE: Well, you know, Joe in Florida, the presumed innocent until proven guilty beyond a reasonable doubt is in a court of law. There is apparently a very long history of -- let me just say -- brushes with the law with this lacrosse team.
I want to go to our professor joining us from NCCU, Professor Irving Joyner.
It`s my understanding that it has been documented there at Duke that the lacrosse team in particular has had dozens of reports of public drunkenness, urinating in public, all kind of misbehavior under the influence of alcohol. I really don`t think they acted prematurely at all.
JOYNER: Well, apparently there`s a long history of misconduct or disciplinary conduct by the members of the lacrosse team. And I guess what we need to do is to look at that in context with the image that Duke wants to present. And, apparently, it decided that this was not the image that it wanted to portray for one of its athletic programs, so they suspended the team for the year.
GRACE: Well, and, as a matter of fact, just yesterday evening, Kevin Miller with WPTF Radio, isn`t it true that a committee voted to reinstate the lacrosse season for next year? I think I`ve got Kevin Miller with me - - Kevin?
K. MILLER: Nancy?
GRACE: Yes.
K. MILLER: Yes, it was a seven-member committee headed by James Coleman, a law professor at Duke. It was made up of faculty members, and it did find that the university was slow to respond. It also found that the lacrosse program has had brushes in the past.
It did recommend that Duke, the Office of Student Affairs have better communication with the athletic director`s office and to get more of a student code of conduct, in part, to the lacrosse players.
That`s essentially -- James Coleman, I think a former attorney for the House, as well, so he`s a pretty serious guy.
GRACE: I`ve got a question for you, Kevin. If nothing happened and all these allegations have been made up, why did the lacrosse coach quit?
K. MILLER: Well, he was resigned under pressure, and I thank you for bringing me back to that, Nancy, because I did want to address why the lacrosse season was suspended or forfeited.
There was incredible public pressure. I was there when the first game was announced as a forfeiture, because you had people there protesting. There was tremendous outpouring from the community. You were going to have protestors at every lacrosse game. The university didn`t want that. They didn`t want to arrest people, so that probably played into why the team forfeited the rest of the season.
When they were practicing, that was big news. It did not look good for the university with these allegations going on that you would have lacrosse players practicing during a time of incredible strain on the university and its public perception.
GRACE: To Steven Miller with Duke University -- he`s the executive of the Duke Conservative Union -- is that you clapping, Steven?
STEVEN MILLER, DUKE CONSERVATIVE UNION: What was that?
K. MILLER: That would be me, Nancy.
GRACE: Oh, OK.
Steven, do you think the re-election of the incumbent would suggest that the constituents are happy with this prosecution?
S. MILLER: Well, certainly the people that voted for him are, but I would say that most people that are really paying attention to this case, which includes many people on Duke`s campus, are outraged at the way that Nifong has dealt with the case.
As has been mentioned by Kevin, 70 press interviews that he did, the fact that he comes out at the beginning and says, "I vouch for this victim. She`s telling the truth. I believe her 100 percent." That`s really not professional conduct for a prosecutor.
He`s taking this case very personally. He did that pep rally-style interview over at NCCU where he was pandering to the crowd.
GRACE: Whoa, whoa, whoa, whoa. My question was: You know, if he wins by a majority, wouldn`t that suggest to you that his constituents, who he represents, the people support this prosecution?
S. MILLER: Well, I would probably say that`s exactly accurate. And I think it`s unfortunate, because I do think he`s handled this case inappropriately and absolutely unequivocally should not be re-elected, that there are definitely serious problems in the way that he`s handled this case from the beginning.
GRACE: Steven, he`s probably going to win.
S. MILLER: I know; it`s unfortunate; I`m not about it. But I really can`t do anything to stop it.
But I will stay that, as an activist on campus, having gauged campus opinion, talked to lot of students, the Duke community is not happy with Nifong. We don`t want him to be re-elected, and we`re very concerned with the way he`s handled this case.
GRACE: I guess not, because the boosters who hired Bennett to come in, like they have an interest in this rape case, are going to lose -- they`re afraid there`s going to be a big loss of money to Duke University because of this scandal to the lacrosse team. Response?
S. MILLER: Well, absolutely. Duke`s gotten hit pretty hard over the last few years with various scandals. There was a few years ago the Palestine Solidarity Movement, which people alleged had terrorist connections -- and there was very strong evidence to indicate that that`s the case -- came to campus. President Brodhead allowed it; they lost a lot of money with that.
They are looking at losing a lot of money with this situation, as well, and they`re trying to do a lot of damage control. That`s why -- or that`s why, I`m sorry, Coach Pressler is gone, I think, because they put pressure on him because they wanted to do damage control.
GRACE: Hold on. Hold on. Hold on. Here are the election results right now: Nifong, 45 percent; Black, 42 percent; Bishop, 13, only four precincts not reporting.
OK, you know what? Forget this for a moment. Let`s get down to the facts.
Let`s go to former FBI agent, now private investigator, Harold Copus. The defense team is claiming they have surveillance photos of one of the two indictees, Seligmann, at an ATM. How do you analyze the evidence?
HAROLD COPUS, FORMER FBI AGENT: Well, what happens with that, Nancy is that you look at that and you wonder how that time stamp was put on there. You have to question it. Sometimes those machines will synch up direct with the ATM withdrawal; sometimes they don`t, so we could be off two to three minutes on their time line.
GRACE: Well, let`s take another look at it. That`s at 12:24 a.m.
To Don Clark with the FBI, former with the FBI Houston bureau, if the dancers got there at 11:30 -- now, this is not a wining-and-dining lovemaking session, all right? This is an act of violence, according to this woman. That can be achieved in a matter of moments -- of moments.
So if he`s at an ATM at 12:24 and they get there at 11:30, I`m just not getting, Harold -- excuse me, I`m not getting, Don, how this is helping them so much.
CLARK: I don`t think that that`s really that significant. I mean, clearly, the defense has to take a look at this, and they`re going to try to make as much of an issue of the time pattern as they possibly can, Nancy, but the question is of whether it took five minutes or 30 minutes for the act to occur, it doesn`t matter as long as the evidence support the fact that the act occurred.
And let`s look at the evidence here real quickly of what it really takes. Number one, DNA, we don`t know what that`s going to shake out to be right now, but that comes out in several forms, hairs, and fibers, and fluids, and so forth. And, certainly, testimony that`s going to take place, and other activities that went on that night that the investigators are going to put together.
So all this could have happened in a short time span, so they will need to check. The prosecutors and the investigators will need to ensure to the best they possibly can that that time is right or it`s wrong, and it could be wrong.
GRACE: Eleanor Dixon, what about the time line?
DIXON: Well, as he just said, of course, there`s plenty of time, as you mentioned. This isn`t wining and dining. It`s five minutes. They have plenty of time to attack her.
And what I think is very important in this case is that a grand jury has indicted these two people. It`s not just the D.A. going out on a limb; there`s a group, the grand jury, who said, "Yes, there is enough evidence here." They`ve heard all of the evidence, and they`ve probably heard a lot more than anyone else has at this point.
GRACE: And to Michael Mazzariello, veteran defense attorney and former prosecutor, do you find it unusual that the defense is showing their cards, they`re laying them on the table before the Petit jury has even been struck?
MAZZARIELLO: Well, they`re trying to get to their jury pool, also, but I disagree with all the guests. I think the time frame is perfect for the defense, Nancy; it establishes a time certain.
You also see a taxicab there, talked to the driver. How far from the ATM was it? And you can start getting minutes and narrow it down to a specific time, and then it depends on what your victim says as to when it exactly happened.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I would not have granted 70-plus interviews about the case. I believe in trying a case in a court of law instead of the court of public opinion, and I believe, in granting those interviews, that he perhaps has irrevocably harmed the case.
(END VIDEO CLIP)
GRACE: More breaking news out of North Carolina regarding the election of current incumbent District Attorney Nifong. It looks as if, with 93 percent of the votes in, he is ahead. He is winning.
And, Clark, that`s coming from A.P., correct?
GOLDBAND: Yes, Nancy, that comes right from the Associated Press. We`ll keep our eye on the wire throughout the show.
GRACE: So you`ve got Nifong, Freda Black, and Bishop. Bishop is out.
GOLDBAND: Yes.
GRACE: All right. Will this lead to us a runoff or is this it?
GOLDBAND: No, Nancy, this will be it. As long as the number holds over that 40-percent threshold, there is no more elections.
GRACE: OK. Let`s go to Jessie in Georgia. Hi, Jessie. What`s your question?
CALLER: Hi, Nancy. I watch you every night.
GRACE: Bless you.
CALLER: I wanted to...
GRACE: You know we`ve got a repeat at 10:00.
CALLER: Yes.
GRACE: Go ahead.
CALLER: I wanted to ask you why the boys have not begged for a lie- detector test?
GRACE: Oh...
(LAUGHTER)
... good question, Jessie.
What about it, Michael Mazzariello? Why not submit themselves to a lie-detector test and just be done with it?
MAZZARIELLO: Because it proves nothing, Nancy. You know that. Absolutely.
GRACE: Yes, well, you know what? You know why I don`t think that they want a lie-detector test? I don`t think they want a lie-detector test because they`re afraid they won`t pass a lie-detector test.
Let`s get back to the evidence. But very quickly to J. Buzz von Ornsteiner, clinical psychologist, you know, the lacrosse team is now going to be reinstated next season. Is that a message from Duke University about these rape allegations?
J. BUZZ VON ORNSTEINER, FORENSIC CLINICAL PSYCHOLOGIST: Well, what we want is we want to see some kind of accountability. Half the team has been arrested for drinking and disorderly conduct. And we got to send a message to these people, and I think they can be accountable for that, that you`ve screwed up, so let`s lay some ground rules here, and get these guys in order, and get them acting like mature adults should have.
GRACE: Well, OK. Good luck on that one, too.
ORNSTEINER: Right.
GRACE: Dr. Daniel Spitz, forensic psychologist, back to the evidence, the DNA we are waiting on -- the second round of DNA results were supposed to come back last week. Haven`t heard a word about them why? And how could these be different from the original tests?
DANIEL SPITZ, FORENSIC PATHOLOGIST: Well, DNA results can take a long time to come back, depending on what kind of specimen you have, depending on what kind of testing they`re going to do.
Probably what they`re doing is trying to further analyze the one specimen from the fingernail scraping, which was inconclusive in the first round of testing. They`re trying to get something out of that, in the second round of testing, to see if they can pinpoint that result with one of the players.
GRACE: And, Doctor, isn`t it true, when you have a minute amount of DNA, deoxyribonucleic acid, the first thing the scientist has to do is take that minute amount and replicate it, regenerate it, until they have a string of DNA to then compare to the known string of the three suspects?
SPITZ: Right, they amplify it, and they make a comparison. And when you have a tiny, tiny sample, the testing is much more involved. It might involve mitochondrial DNA, which is much more labor-intensive, but the results will come back. And I hope, for the prosecutor`s sake, that they`re positive, because I really think he needs some type of forensic evidence to make this case stick.
GRACE: Now, hold on, hold on, Dr. Spitz. You have an M.D., not a J.D., right?
SPITZ: That`s true.
GRACE: OK, I don`t get into your DNA. You, sir -- now, wait. Now, wait. It`s interesting to me why you would say that. So you believe, without DNA, the district attorney cannot prove this case?
SPITZ: Well, I think in this case it will be very difficult. I think you`re going to need some type of forensic evidence. It may not just be the DNA, but some type of forensic link that ties one or more of these players to this victim. If it`s a he said-she said, I just really don`t think it`s going to stick.
GRACE: You know, I want to go to Eleanor Dixon. That is a similar viewpoint of many people in a jury pool, and they better ask that in voir dire, jury selection, as to whether or not all of these juries are all "CSI`d" up. Do they expect forensic details? Do they want DNA before they will convict?
But what I want to ask you about is: Now the defense is claiming that this girl`s photo identification of the suspects should be thrown out. Are you familiar with the claim?
DIXON: Yes, I am familiar with the claim, and I think this a little bit premature, because, although maybe the photo lineup was not done according to the internal police procedures, that doesn`t mean that it`s incorrectly done according to the law and what`s allowed in the courtrooms in North Carolina.
So I don`t think time yet to say, "Hey, let`s just throw out the photo I.D."
GRACE: Hey, Eleanor, let`s just get real. Have you ever had a photo I.D. put in court that the defense didn`t say was unfair and unconstitutional?
DIXON: Oh, yes, that`s pro forma. They do that all the time.
GRACE: Oh, yes. Yes, that`s SOP, standard operating procedure.
The bottom line, Michael Mazzariello, is, out of 46 photos this girl was shown, she picked out these defendants.
And, Ellie, wasn`t, when she saw the fifth photo, she went, "Uh-huh, that`s him"?
UNIDENTIFIED FEMALE: Right, it was either the fifth or the seventh. I`m not sure which.
GRACE: Quickly, Michael?
MAZZARIELLO: Nancy, my job is to make sure the procedure was followed, to make sure that...
GRACE: Your job is to get the photo I.D. thrown out.
MAZZARIELLO: Absolutely, I need that photo I.D. suppressed so I want to make sure she wasn`t tainted, that the procedure was done properly, that no photos were shown to this witness beforehand, and to do a 45-witness PowerPoint presentation, I`ve never heard of such a thing in my life, Nancy.
GRACE: I think they were going overboard to ensure the accuracy and the legitimacy of the I.D.
MAZZARIELLO: Absolutely.
GRACE: Quick break, everybody, but I want to remind you: priest on trial for the death of a nun, 3:00 to 5:00 Eastern, Court TV.
And let`s just stop and remember Army Staff Sergeant Bryan Anthony Lewis, 32, Bunkie, Louisiana, killed, Iraq. Lewis remembered by fellow soldiers as someone they looked up to. Brian Anthony Lewis, an American hero.
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GRACE: And here you go. With 53 of 56 precincts in, Nifong, 45 percent. He`s in the showers. Black trailing at 42 percent. Only 561 votes between them.
Is it over? Does the public support this prosecution?
Very quickly, to our producer, Phil Rosenbaum, how did the Black Panthers get mixed up in this whole thing?
PHIL ROSENBAUM, NANCY GRACE PRODUCER: Well, they put themselves into this thing, Nancy, as they often do. They have quite a resume for protests and demonstrations.
Let`s take a look at some of their activities. In 1998, they led an armed group to Jasper, Texas, after the truck-dragging murder of a black man, Mr. James Byrd, Jr. They also protested in front of Bill Clinton`s Harlem, New York, office, because they didn`t want the former president in their neighborhood.
And after 9/11, they called the U.S. and Israel number-one and number- two terrorists. Finally, they organized New York City`s Million Youth March in 2003. It was meant as an empowerment rally, but it was anything but a peace love-in.
GRACE: Well, isn`t it true that the real Black Panthers, who are anarchists themselves, have said, "We don`t want anything to do with them"?
ROSENBAUM: They do say that, Nancy. They seemed to have mellowed over the years since the 1960s.
GRACE: Did the accuser actually ask them to get involved?
ROSENBAUM: That`s not clear to us right now, Nancy.
GRACE: OK, I`m being told here on the set no by Ellie and Dean.
Very quickly, let`s go to Denisha in Louisiana. Hi, Denisha.
CALLER: Hi, Nancy. My question is: Is the team as a whole going to be placed on some type of university-based probation next semester, you know, due to their past and present issues?
GRACE: It`s my understanding no, but let`s check it out.
Kevin Miller, what about it?
K. MILLER: Nancy, the results from the seven-member faculty committee will be more involvement and the lacrosse team will be under greater scrutiny. Nothing official...
GRACE: Greater scrutiny, not what she asked. Are they going to be under probation, any type of supervision whatsoever?
K. MILLER: Mr. Coleman didn`t specify that to my knowledge yesterday.
GRACE: Kevin Miller, a reporter with WPTF Radio, once again tonight on the hot seat. Thank you, Kevin.
But I want to thank all of my guests tonight. Our biggest thank you is to you for being with us, inviting us into your home.
Reminder tomorrow: Child sex predators, an epidemic. We are on the road to Washington, live from Capitol Hill, to fight child sex predators. That testimony airs live on CNN`s Pipeline.
I`m Nancy Grace signing off for tonight. I hope to see you from D.C.`s Capitol Hill tomorrow night. Until then, good night, friend.
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