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Why a Bill of Particulars is important; it would have ended the case
Topic Started: Nov 10 2010, 08:23 PM (148 Views)
Quasimodo

Quote:
 
BILL OF PARTICULARS -

A detailed informal statement of a plaintiff's cause of action, or of the defendants's set-off.

In all actions in which the plaintiff declares generally, without specifying his cause of action, a judge upon application will order him to give the defendant a bill of the particulars, and in the meantime stay proceedings. And when the defendant gives notice or pleads a set-off, he will be required to give a bill of the particulars of his set-off, on failure of which he will be precluded from giving any evidence in support of it at the trial. The object in both cases is to prevent surprise and procure a fair trial. The bill of particulars is an account of the items of the demand and states in what manner they arose.



June 21, 2006

Now Comes the Defendant Reade William Seligmann, through counsel [Kirk Osborn] , and respectfully moves.....the Court to issue an Order directing the State to file and serve a Bill of Particulars setting forth factual information pertaining to charges herein upon the grounds that the Defendant cannot adequately prepare or conduct his defense without the information requested herein:

The Defendant has carefully reviewed this entire discovery which consists mainly of extraneous, irrelevant material. None of the discovery shows that any crime occurred. In fact it shows that the accuser Crystal Mangum even stated no rape occurred, and gave approximately one dozen conflicting statements, including one story were she alleged her co-worker robbed her of $2000.00. The discovery provides no account of which story is going to be presented as the "true story" or how any crime even occurred given the number of established facts which contradict every one of Ms. Mangum's stories (except of the true story that she was not raped)

With so many different stories floating through the discovery and elsewhere, and with Mr.Nifong having to bolster his reputation which he damaged with premature public statements. It is essential for Reade Seligmann to have a forecast of exactly which of the many stories Mr. Nifong, on behalf of the State and in his own self-interest, will use in his attempt to falsely prosecute the Defendant..

The defense respectfully request, at a minimum the following items of factual information pertaining to the charges herein upon the grounds that Reade Seligmann cannot adequately prepare or conduct his defense without the herein requested information.

1. Exactly where, when, at what time, and how does the State contend the Defendant committed a first degree rape?

2. Exactly how does the State contend the alleged rape was committed with another person by force and against the will of the accuser, and who was this person or these persons.?

3. Was a dangerous or deadly weapon or an article used during the alleged rape, which the accuser reasonably believed to be a dangerous or deadly weapon employed and/or displayed; and if so, by whom was it displayed or employed?

4. Was a serious personal injury inflicted up the accuser or another person during the alleged rape; and if so who inflicted this injury?

5. Was the alleged first degree rape committed by someone aided and abetted by one or more other persons; and if so, who was this person or these persons who aided and abetted, and exactly how did such person aid and abet?

6. The factual information which is the basis for the state's allegations of a first degree rape.

7. Exactly where, when and how the state contends the defendant committed a first degree sexual offense, and a specific description of the exact sexual offense?

8. Was the alleged first degree sexual offense committed with another person by force and against the will of the complaining witness?

9. Was a dangerous or deadly weapon or an article used during the alleged sexual offense which the accuser reasonably believed to be a dangerous or deadly weapon employed and/or displayed; and if so, by whom was it displayed or employed?

10. Was serious personal injury inflicted upon the accuser or another person during the alleged sexual offense; if so who inflicted this injury?

11. Was the alleged first degree sexual offense committed by someone aided and abetted by one or more other persons; and if so who was were the person(s) who aided and abetted, and exactly how did such person or persons aid or abet?

12. The factual information which is the basis for the state's allegations of a first degree sexual offense.

13. In regard to the first degree kidnapping charge, how does the state contend the accuser witness was unlawfully confined, restrained, or removed from one place to another?

14. Was the alleged confinement, restraint or removal for the purpose of holding the accuser for ransom or as a hostage or using such person as a shield; or facilitating the commission of any felony or facilitating flight of any person following the commission of a felony?

15.Was the alleged kidnapping to do serious bodily harm to or terrorize the person so confined, restrained or removed or any other person?

16. Was the alleged kidnapping to hold the complaining witness in involuntary servitude in violation of G.S. 14-43.2?

17. Was the person kidnapped released in a safe place or was the complaining witness seriously injured or sexually assaulted?

18. The factual information which is the basis for such allegations regarding the first degree kidnapping.

19. A detailed statement of the factual information upon which the State will rely to prove each of the elements of each charge in each indictment.

20 The names, addresses, telephone numbers and current occupations of each witness the prosecution expects to cal to establish each of the elements of each circumstances listed in the answer to paragraphs above, along with a statement of the expected testimony of each witness.

21. A copy of any statement obtained from witnesses regarding any charge or element of any charge in this case.

22. Any information in the prosecution's files or known to the prosecution or which with the exercise of reasonable diligence could become known to the prosecution which establishes or might tend to establish the existence of any element of any of the alleged charges.


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Quasimodo

Quote:
 
SIXTH AMENDMENT :

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
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Quasimodo

Quote:
 
'The Abrams Report' for June 27, 2006

http://www.msnbc.msn.com/id/13594640/

(snip)

MORET: Jonna Spilbor, you‘re a criminal defense attorney. Do you agree? Is that [just defense] propaganda?

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY: Absolutely not. The prosecutor is not going to have a choice to ignore this motion. What this is, is a request for a bill of particulars. What does that mean? It‘s a request for fact. The defense is saying hey look, put your money where your mouth is and tell us how you‘re going to prove each and every element of the offenses that you‘ve charged my clients with, and if you can‘t do it, then there is no case.

And if they do, do it, then at least the defense can prepare. Right now they can‘t prepare. You have 1,800 pages of discovery. The Lindbergh kidnapping didn‘t generate that much discovery. Much of that is just flux (ph). Let‘s cut to the chase, and that‘s what this defense motion is about.

MORET: Susan Filan, aren‘t the defense team—isn‘t the defense team really being buried by paperwork right now? You‘ve got hundreds and hundreds of pages and conflicting testimony, conflicting facts. How do you proceed as a prosecutor and what‘s fair?

SUSAN FILAN, MSNBC LEGAL ANALYST: Well, what‘s fair is to do the right thing. And I think Norm hit it on the head. If you‘ve got discovery data that does show that there are inconsistent versions of her story, you‘ve got to disclose that to the defense and then let the witness testify. This is a pure showboat motion. I mean this is really a play to the media.

This bill of particulars is going to go nowhere.
The indictment alleges the essential facts. The witness will testify at trial. The defense will cross-examine. The jury will make a determination as to credibility, but the rest of this is really just for the benefit of the media, so we can pick up the same ball that they wanted us to carry all along, basically say there is no case. Mike Nifong is crazy. He‘s out of control.

This should be dismissed. Well the 1,800 pages of discovery don‘t bury the defense. I think Dan Abrams said when you boil it down, there‘s about 70, 75 pages that really matter to this case. And if he didn‘t disclose it all, you‘d say oh, he‘s hiding the ball and if he does disclose it all, you‘d say oh he‘s burying the paper. Dammed if he does, dammed if he doesn‘t.

(snip)

[NORMAN] EARLY: Well I mean they‘re going to do their job, and part of their job quite frankly is to sift through 1,800 pages of discovery and figure out what‘s germane and what‘s not germane. It is not the prosecutor‘s job to set up the case for the defense attorneys. This was done just what Susan said for, for the purpose of further propagating the stuff that they‘ve been saying about Mike Nifong.

... We‘re saying the defense says that there‘s absolutely no case here. Hey, Mike Nifong said I‘ll prove this case in court and I‘m going to argue this motion in court. And that‘s where it should be argued, not here in the media, advancing the defense‘s position.

(snip)

SPILBOR: Absolutely. They should have filed this first. You know what, because if they had, if defense attorneys had filed this bill of particulars first, before they bombarded the D.A. with all this evidence that almost proves their clients are innocent, if they came out with this first and said hey, what are you going to use to prove this case, nobody would be complaining. But now that we know the defense has a stack of evidence that supports the defense that nothing happened (UNINTELLIGIBLE) all of a sudden everybody‘s upset about it. The D.A. is going to have to answer this bill of particulars, plain and simple.

FILAN: It doesn‘t support that nothing happened. We don‘t know what happened. We know something happened, but we don‘t know what it is.

MORET: (snip)

Clearly that‘s a statement by a defense attorney, Susan. However, if you have inconsistent statements being made by an accuser—I was attacked by 20 people, I wasn‘t raped, I was raped, I wasn‘t forcibly raped—you know you have all of these different things, isn‘t it fair to come out with one theory of a case and let them present that to the defense and say here, defend it?

FILAN: Absolutely not. That—this is what we call time at trial stuff. What happens is the witness testifies. The defense cross-examines, but the district attorney can‘t say ahead of time that this is what the witness is going to say. It comes out through testimony. The witness has a right to tell her story. The district attorney has an obligation to disclose the different versions that she‘s told up until now.

The defense uses that for cross-examine. But this language in this motion is really inappropriate. I have no problem with them coming out swinging. The system only works if you have good adversaries on both sides and that‘s right and fair. But to mudsling at the D.A. in this motion I just think is really inappropriate. It‘s porcanin (ph). That‘s nonsense.

(snip)

MORET: Norman, in our last 30 seconds on this topic, would it concern you, as a district attorney, that you have an accuser who has changed her story on numerous occasions?

EARLY: Tim, you haven‘t read the file, and neither have I. And it‘s the defense attorneys out there who keep saying this woman has changed her story over and over again, and it‘s being picked up by the media. You don‘t know that she‘s changed her story 15 times, 10 times, 12 times or six times or two times. You don‘t know of your own knowledge because you haven‘t read the file, and neither have I. But what happened here is the defense has taken a very skillful assault against this victim.

And this is one of the problems in this criminal justice system, when women have the courage to come forward and say they were raped, they get emasculated. They get excoriated in this system by defense attorneys to the point that many of them drop out. They say enough is enough. I won‘t go further.

That is a—not a fair system. That is an unfair system, which allows defendants never to see the inside of a courtroom, because of the pressure the defense attorneys put on victims and because that pressure is picked up by the media.

MORET: Your points are well taken. We‘re going to obviously be following this story. All of our panelists are staying with us.

(snip)


(This is JUNE 27, long after the DNA results and much more was known... and for the sake of good TV (I assume)
some of these "experts" were still willing to treat this as a "game" and stand in support of Nifong's continuing prosecution...)

(MOO)
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Quasimodo

Quote:
 
http://www.foxnews.com/story/0,2933,215204,00.html

Saturday , September 23, 2006

Three Duke lacrosse players took five to 10 minutes to sexually assault a woman hired to perform as a stripper at a team party, and not the 30 minutes she originally described to investigators, a prosecutor said Friday.
"When something happens to you that is really awful, it can seem like it takes place longer than it actually takes," District Attorney Mike Nifong said.

Nifong's comments came as Superior Court Judge W. Osmond Smith III denied a defense request that prosecutors provide a detailed accounting of the alleged assault, including the exact time, place and type of sexual act the accuser said each defendant committed.


(snip)

Nifong said he is not required to state the exact time of the alleged attack, but offered that authorities believe it took place between 11:30 p.m. on March 13, when the accuser arrived at the party, and 12:55 a.m. on March 14, when police arrived and found no one at the house.

(snip)
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Quasimodo

http://www.msnbc.msn.com/id/13155279/

The Abrams Report’ for June 5


(snip)

ABRAMS: They’re role models at the university?

BONDI: ... you know what I think...

ABRAMS: Everyone’s blowing this out of proportion as if the lacrosse team are somehow heroes on the campus. I mean I went to Duke and the bottom line is I can tell you lacrosse players don’t walk around campus as heroes. They walk around as every other students do.

(snip)

ABRAMS: Wait. You presume she was raped, right?

GOSLEE: Yes, yes.

ABRAMS: OK. So, therefore, you’re presuming that she’s telling the truth about what happened. GOSLEE: I presume that she was raped.

ABRAMS: By somebody.

GOSLEE: By somebody, yes.

ABRAMS: And that’s based on — even though we learned recently from the medical report that there was no vaginal or anal tearing.

GOSLEE: No, that was the defense’s spin...

ABRAMS: No, that’s the discovery.
That’s a fact.

GOSLEE: Well, let me ask you this then. Let me ask you, Dan, if she — if there were no vaginal tears, what was the basis of the indictment for the original medical examination...

ABRAMS: That’s a great...


(snip)

ABRAMS: That was her [Levicy's] assessment. But now we learn it really wasn’t as bad as we thought it was going to be in terms of the medical report.

GOSLEE: Well I don’t believe that. I don’t believe that.

ABRAMS: All right. So you think...

GOSLEE: Because that’s still the defense’s spin.

ABRAMS: Wait. It’s a defense spin that the medical report just says that there was no tearing.

GOSLEE: Well, there must have been some really significant...

ABRAMS: I know. Everyone wants to believe that. I know it. I know it, Georgia...

GOSLEE: I don’t want to believe anything...

ABRAMS: I know you and the rest of the people...

GOSLEE: Nifong would not have indicted...

ABRAMS: ... want to get these guys, want to believe...

GOSLEE: ... these guys, Dan...

ABRAMS: ... that there’s something else out there.

GOSLEE: Listen. No, he would not...

ABRAMS: You’re praying there’s something else out there.

GOSLEE: ... have indicted these guys. He’s not a neophyte prosecutor.



(snip)
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