Wednesday, September 27, 2006

M. Nifong, Revisionist

We all know of high-profile cases in which defense attorneys made early, bold pronouncements of innocence, only to “revise” their opinions as more facts about the case came to light. The lacrosse case, however, represents a rare reversal of this pattern: defense statements have been consistent from the start, while the person revising his statements in light of new evidence is the prosecutor. It's almost as if Mike Nifong didn't read any of his case file before proceeding with indictments.

DNA:

  • March 23: Nifong’s office submits a motion to the court affirming, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”
  • April 11: “DNA results can often be helpful, but, you know, I’ve been doing this for a long time, and most of the years I’ve been doing this, we didn’t have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them.”

Nifong apparently discovered it was useful to revise his opinion after the DNA tests he was certain would reveal matches to lacrosse players instead all came back empty.

Respect for Civil Liberties:

  • Herald-Sun votebook: “Justice requires a level playing field, and it is the District Attorney’s responsibility to see that every defendant has one.”
  • ESPN: “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”

Nifong apparently discovered it was useful to revise his opinion about the importance of civil liberties after defense attorneys started objecting to his unethical behavior, such as his inflammatory public statements.

Providing Evidence to Defendants:

  • mikenifong.com: “I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State’s case, then the defendant is clearly entitled to have it; if it is not damaging to the State’s case, why should it matter if he gets it?”
  • September 22: Nifong admits that Durham Police destroyed a March 14 tape, which featured the initial contact between the police and the “passed-out drunk” accuser, even though defense attorney Kirk Osborn requested that the tape be preserved. The district attorney cites the department’s policy of destroying recordings after 60 days, without explaining how it applied in this instance, since Osborn filed a motion to preserve the tape 45 days after it was made.

Nifong apparently discovered it was useful to revise his opinion about the importance of sharing and preserving evidence after he realized that people hearing the recording of Sgt. J.C. Shelton after the officer first discovered the accuser in Kim Roberts’ car might undercut the D.A.’s suggestions that law enforcement never doubted the accuser was raped.

Number of Interviews on the Case:

  • March 31: In an interview with an N&O reporter, Nifong was asked, “How many interviews do you think you’ve given?” He responded, “In excess of 50.”
  • September 22: “I’m glad [defense attorney Brad] Bannon brought up the internet. The internet is reporting that I gave 50-70 interviews. I’ve checked my calendar and have approximately 15 interviews noted on my calendar, the last being April 1st. Otherwise I’ve been responding with no comment.”

Nifong apparently discovered it was useful to revise his opinion on the usefulness of speaking out after the May 2 primary vote. Before the election, highlighting the number of interviews he had done proved his commitment to the African-American voters he so desperately needed to win. After the primary, on the other hand, downplaying the number seemed to minimize the threat of state bar ethics sanctions.

Dates of Interviews:

  • September 22: “I’ve checked my calendar and have approximately 15 interviews noted on my calendar, the last being April 1st. Otherwise I’ve been responding with no comment.”

Length of Offense:

  • March 16: Inv. B. Himan signs an affidavit stating, "The victim reported she was sexually assaulted for an approximate 30 minute time period by three males." This time period also appears in police affidavits dated March 23, March 27, and April 18. On March 25, the accuser herself gives an interview with the N&O asserting that the attack lasted 30 minutes. According to press reports, she repeats this claim in her April 6 statement to police.
  • September 22: “If I had to speculate, I’d say this whole event took five minutes, maybe 10 minutes at the outside. I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes.”

Nifong apparently discovered it was useful to revise his opinion about the basic nature of the crime after Reade Seligmann produced unimpeachable evidence that he couldn’t have committed a 30-minute crime. Unfortunately for Nifong, shortening the timeline doesn’t help his attempts to frame Seligmann, since there’s no way Seligmann could have committed a 5-minute crime, either, given the other timeline-related evidence that exists for the evening.

Date of Offense:

  • April 17: Nifong signs a document listing the “date of offense” as March 14, 2006.
  • September 22: According to WRAL, Nifong tells the court the crime occurred between 11.30pm on March 13 and 12.55am the next day. Nifong: “Out of his [Kirk Osborn’s] client’s whole life, we have given him an hour and a half that he has to account for.”

Nifong apparently discovered it was useful to revise his opinion about the basic nature of the crime after Reade Seligmann produced unimpeachable evidence that he couldn’t have committed a crime on March 14. Unfortunately for Nifong, shortening the timeline doesn’t help his attempts to frame Seligmann, since there’s no way Seligmann could have committed a crime on March 13, either, given the other timeline-related evidence that exists for the evening.

Significance of case:

  • March 27: “It is a case that talks about what this community stands for . . . I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly.”
  • September 22: “Despite the feelings of some people, this is not the only case in Durham.”

Nifong apparently discovered it was useful to revise his opinion on the significance of the case after the May 2 primary vote. Before the election, highlighting the case’s importance proved his commitment to the African-American voters he so desperately needed. By September, on the other hand, downplaying the case’s significance rationalized his inexplicably slow handling of discovery issues.

If any justice remains in North Carolina, this case will end with the state bar citing his massive procedural misconduct to revoke Nifong’s license to practice law. Does the district attorney hope that his enablers among the Group of 88 could then find a position for him in the academy? Perhaps his experimentation with revisionism represents an early attempt to refashion himself as “M. Nifong, Revisionist Scholar.” Based on the quality of his performance as a revisionist in this case, however, I’d say he has lots of work to do.

14 comments:

Anonymous said...

Terrific, as usual, Professor Johnson. The case against Nifong is strong. The case against the three Duke lacrosse players is exceptionally weak and pretty close to nonexistent. However, Nifong could go to a grand jury and get an indictment easily. He sought no evidence contrary to his opinion, which just happened to benefit himself politically. This case seems so unfair on the surface that many of us are wondering how it could have come this far. Of course, you must consider the enablers in the local press and in the New York Times. Nifong's greatest talent: spinning reporters and editors.

KC Johnson said...

Good point on the grand jury--this case is a good example of why grand juries are of no use, and are actually harmful to the cause of justice, as things stand now.

Anonymous said...

The fact Nifong went to a grand jury instead of a court, where he would have had to show probable cause, tells it all. He knew he could manipulate the grand jury and keep his actions a secret. This is an unbelievable travesty of justice. Would writing to the U.S. Attorney General help?

Anonymous said...

More on Nifong's deceit regarding the number of interviews:


http://liestoppers.blogspot.com/2006/09/nifongian-mathematics.html

AMac said...

The shocking thing isn't that a public official abandons his oath out of political expediency and emotional instability. In framing "the Rule of Laws, not Men," the Founders had this circumstance in mind.

Nor is it astonishing that Law Enforcement's corruption and incompetence is put on public display. Sunlight is the best disinfectant.

The scandal is that the nation has to rely on a few self-selected citizens--a faraway professor, a grandfather, an irate alumnus, an offended local--to appreciate the depravity that is the hallmark of these proceedings.

The newspapers of record were there as the Privileged Rapists were doing their Perp Walk. Op-Ed pages dripped with the schadenfreude of the righteously indignant. 7.33 dozen faculty members trampled Due Process as they mirthfully hitched events to their own purposes. A President, deeply concerned about the legal customs of the Caucasus, appeased the wolves closest to home.

Faced with the inconvenient truth that three men have been framed for a nonexistent rape, the Fourth Estate has fallen silent, with a few--too few--honorable exceptions. For the editorial thugs of April, it's Eyes Wide Shut. Duke's faculty experienced 88 harried summers and 88 pressing fall teaching loads--no more time to spare concerning the round up of the usual suspects.

A prediction: when decency and reason return to the journalistic trades and to the academy, the archives of KC Johnson's web-log will be renowned as the jumping off point for dozens of What Went Wrong? case studies.

I am humbled by the opportunity to read these posts within hours of their composition.

Anonymous said...

You are incorrect about the indictments saying the crime took place on March 14th. The body of the indictment document says "on or about the date of the offense shown....".

Otherwise, nice.

Learned Hand said...

here's a question: in north carolina, lawyers can file ethics complaints against other lawyers. there is no anonymity allowed. thus - why has there not been a barrage of ethics complaints filed against the da? or, if there has, why have we not heard about it - or can we? there is more than enough evidence to support allegations of ethical violations - one need only choose.

on another note - heard from sources inside the city of medicine that the da's reputation for dirty tricks is legion. one example - the main (perceived) reason for steve monks not being on the ballot and having to resort to being a write-in candidate: the da "fast-tracked" all of his cases at the end of june - thus, monks had very little time to deal with accumulating signatures or publicity as he had to deal with this sudden onslaught of active and cases.

add it to the list...

Anonymous said...

I sent the following to the NC state Attorney General, but apparently he could care less.

I am writing to complain about DA Michael Nifong, Durham County District Attorney. I sent him an e-mail I asked in the mail why he was withholding discovery from defense lawyers in the Duke Lacrosse Rape Case. I further stated I would vote "anybody but Nifong vote Cheek. I never mentioned my Name or the State where I lived, but somehow in his response he used my name and state of residence. Here was his response: "Gee, Bill. Does this mean you are moving down here from NJ just to vote against me? I am flattered. Bad news, though. You'll be stuck with me at least until the end of December." I know that I listed both on my profile page on America on Line, but how does Mr. Nifong get away with looking me up, on company time and how far did that lookup go. I am sure being a quasi law enforcement agency, he has the county resources to look up e-mail addresses or he could simply be a member of AOL. Since his e-mail was time stamped 12:52PM 9-19-2006, then he was probably at work using county equipment on county time. Add to that the fact that his answer was sarcastic and arrogant. I really never expected to get an answer from Mr. Nifong and I was quite surprised and flattered that he did answer me. I know that in his last court appearance and in previous ones, that he has told the court that his office had more cases then the Duke case, as a retired P/O, with 25 years of service, I am certainly aware of that, but he seems to have time to answer e-mails from out of state e-mailers and do research on the e-mail addresses. I have been told you cannot do anything unless Mr. Nifong has done something illegal, how about abuse of government computers, resources, time and taxpayer money, in the use of those resources. I want to thank you in advance for listening

James said...

KC,
I think you should make a distinction between what was submitted to the court (motions) in which the filer has to affirm that the contents are accurate (to the best of their knowledge a the time of course) and Nifong's public opinions. Even his opinions in court are different from those that are in his motions - in the latter he is (should be) held to a higher standard.

If he asserts events as fact in repeated motions to the court the defence can undermine the credibility of Nifong and the investigators. Not so much with his public inflammatory statements.

"The fact Nifong went to a grand jury instead of a court, where he would have had to show probable cause, tells it all. He knew he could manipulate the grand jury and keep his actions a secret. This is an unbelievable travesty of justice. Would writing to the U.S. Attorney General help?"

It is common NC practice to use grand juries. They are considered 'efficient'. Of course that has to do with the fact that they don't have time to evaluate the charges (the bill of particulars had something like 70 cases in it and the G.J. meets for a workday).

Still, they would have been indicted by a Durham judge as well. The burden Nifong had to meet was very low and the burden that a judge requires is low (these judges are elected of course - one of the original ones was facing re-election this fall). The US Attorney does not interfere with a state's judicial system and G.J.'s are used in many states.

Nifong did pick the last day the G.J. was to meet before the primaries incidentally. If it had been before a judge it is possible that he/she might not have ruled until after those primaries. Then again using a judge wouldn't be 'common practice'.

If you are concerned about justice in NC the main problems are that 1. the discovery laws are weak 2. prosecutors are never held accountable and 3. the state doesn't give people the right to a speedy trial. The speedy trial issue is important because it prevents weak/political cases from being filed. It's not really a huge drag on the court system because most defendents in other states waive their right as they (correctly) realize their attorney has to prepare for a trial/plea bargain.

"here's a question: in north carolina, lawyers can file ethics complaints against other lawyers. there is no anonymity allowed. thus - why has there not been a barrage of ethics complaints filed against the da? or, if there has, why have we not heard about it - or can we? there is more than enough evidence to support allegations of ethical violations - one need only choose."

There have been 'feelers' to the ethics panel for awhile by people connected to the defence. The problem in NC is that the ethics panel is VERY WEAK because the state laws are weak. That is, if you hide evidence in order to get someone convicted and sentenced to death for murder it will be awhile before that conviction is overturned (assuming that the defence realizes what the DA did). By the time that happens which will slowly go through the courts the 'timeframe' for the panel to take action will have expired. This HAS HAPPENED and it is WHY the discovery laws were changed. For some odd reason the ethics panel rules weren't. The sort of sick thing is one of the two DAs in the particular case that led to this is a sitting judge - the ethics panel ruled against both prosecutors only to have it overturned because of the time frame.

Anyway the defence would not want to file an ethics complaint until after the trial. Nifong is making himself appear worse every time he goes to court and changes the 'facts' of the case. This is 'ammunition' for the defence for any later complaint. Another reason is that if they filed a complaint early it would probably not do anything - the ethics panel gets concerned over improper convictions/prosecutions and the defence would want to have that possibility open to bolster an appeal.

You are correct, however, that most complaints against attorneys are filed in short order. That excludes DAs because the burden you need to show is very very high - which is kind of a reflection on the makeup of the panel.

You ought to read about the death sentence that led to the discovery laws. Basically the prosecution has statements that the guy that the accused supposedly murdered was alive during the days when he could have killed him. They retried him even when the original conviction was thrown out but the jury returned with a not guilty verdict within a few hours. (he is back in jail awaiting trial for a different charge -statutory rape-now). He spent years on death row.

James said...
This comment has been removed by a blog administrator.
James said...

KC,
Check out Johnsonville; he has managed to use the cell phone records to cut Nifong's 85 minute 'window' into 37 minutes. Last call before getting to the place was 11:39 pm and she called the escort agency at 12:26 am.

Looks like Nifong's timeline still isn't quite right.

Anonymous said...

Here's one to bookmark. Comprehensive documentation of the Duke rape hoax timeline in post #303:


http://www.freerepublic.com/focus/f-chat/1706546/posts?page=303#303

Learned Hand said...

great post james. curious - i am a bit embarrassed to acknowledge that i have read the ethics rules but am unclear about one thing: can any lawyer make an ethics complaint against the da or does it have to be an attorney involved in the case?

no doubt about the need to revamp our discovery laws once more. in civil litigation it is a very difficult world - these types of discovery disputes are handled pretty harshly and fairly quickly - in my experience. amazing that in cases where actual lives are on the line, these kind of abuses are allowed to go on...

Newport said...

James, I agree with most of what you said, but it seems that North Carolina's incarnation of the Grand Jury is so eggregious that it does not serve justice. For example, and correct me if I am wrong, in NC the is no transcript of Grand Jury proceedings, there is no requirement that exculpatory evidence be presented and the target has no right to appear and tell his/her story to stave off indictment. It seems to me that if you are going to use a Grand Jury for indictments that some basic protections of the accused should be provided. Other states that use the GJ for indictments provide these basic protections.

I strongly agree with KC that the current use of the GJ for indictments is outdated and that noninvestigative GJ should be eliminated. There is absolutely no reason why the defendants cannot be charged on information and a preliminary hearing to determine probable cause to bind over for trial provided. This is how more enlightened jurisdictions operate.

Finally, I am a little perplexed by your comment that it wouldn't have made a difference if a Durham judge had to make a decision on an indictment???

You refer to a low standard?? Isn't the standard whether probable cause exists? Wouldn't a hearing have been provided where exculpatory evidence would be presented, a mini-trial in essence. I fail to see how a Durham judge could have found probable cause in this case on a complete absence of evidence. Probable cause requires more than a contradicted accusation.