RALEIGH, N.C. — An attorney representing one of the suspects in the Duke lacrosse rape investigation argues the photo lineup used to identify his client was unconstitutional as well as procedurally incorrect.Kirk Osborn, who represents Reade Seligmann, claims any identifications made during the photo lineup by the alleged victim should be suppressed if the case goes to trial.
In his request for a recusal, Osborn said that Nifong has ignored facts that will clear Seligmann, such as time-stamped photos of the party, cell phone records, and an ATM surveillance picture time-stamped 12:24 a.m. -- the time of the alleged attack.
The defense's motion calls the lineup a "multiple-choice test with no wrong answers" and "a pin-the-tail-on-the-donkey identification" of Seligmann.
It also claims that Durham County District Attorney Nifong encouraged Durham police to violate departmental policy regarding photo lineups. Osborne called the lineup "unnecessarily suggestive and conducive to irreparable mistake and misidentification."
At the district attorney's direction, the accuser was shown only pictures of 46 lacrosse players, with no unrelated pictures added to the lineup.
In another motion filed Monday, Osborn called for Nifong to remove himself from the case entirely, claiming the district attorney neglected his duties as prosecutor.
These evidentiary items are based on the defense attorney's own timeline. Nifong has not officially commented on the timeline or the supposed alibi.
Osborn also accused Nifong of making statements to the media to bolster his election chances, which he claims were prejudicial to the case.
"District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution," Osborn wrote. "He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected."
Nifong has previously denied political motives led to his aggressive investigation of the rape allegations. A nearly 30-year veteran of the prosecutor's office, he was appointed district attorney last year and is seeking election for the first time in Tuesday's Democratic primary.
It is likely that the winner will be the next district attorney since no Republicans are running in opposition. If none of the candidates wins at least 40 percent of the vote, the top two will advance to a May 30 runoff.
Defense attorneys not involved in the case said it is unlikely the motion will carry much weight. In their opinions, no judge hearing the motion would force Nifong to recuse himself.
Osborn also filed motions seeking to reduce Seligmann's bond, now set at $400,000, to no more than $40,000; to obtain access to the accuser's cell phone records; and to order the state to save all DNA samples.
Finally, Osborn's motion stated that Nifong denied Seligmann a probable cause hearing, in which evidence is presented by the prosecution, and instead went straight to the grand jury.
Last month, a grand jury indicted Seligmann, a sophomore from Essex Fells, N.J., and Collin Finnerty, a sophomore from Garden City, N.Y., on charges of rape, kidnapping and sexual assault of an exotic dancer. The woman said she was attacked by three men, and Nifong has said he hopes to charge a third person soon.
The allegations led Duke to cancel the remainder of the men's lacrosse season, accept the coach's resignation and begin a series of internal investigations.
Defense attorneys have strongly proclaimed the players' innocence, often citing DNA tests they said failed to connect the accuser and the lacrosse players tested.
In recent days, the defense has been attacking the accuser's credibility.
Osborn's motions referenced a 1996 rape allegation made by the woman, which did not lead to any charges, and a report she made in 1998, in which she accused her then-husband of threatening to kill her. Osborn's motion said she later failed to appear at a court hearing on the complaint, which was dismissed.
"Their way of trying a case in the media is not to call press conferences, but to simply file motions and court papers that contain outrageous or false statements and assume that people will report them as if they were facts," Nifong said.
The case has drawn protests and unwanted attention to the Duke campus. On Monday, Duke police prevented a small group of New Black Panther Party members from coming on campus to protest. Malik Shabazz, the group's national director, said the protesters want to walk silently through campus without causing any disruption.