Friday, October 27, 2006

Stretching Credulity

The tensions between serving as lead investigator and district attorney are catching up to Nifong.

Nifong opened the hearing by complaining about the October 11 letter from Cheshire, and said that the N&O received copy of letter before he did. The Cheshire letter noted that Nifong claimed to have interviewed the accuser, and the only time this could have occurred was on April 11. Nifong asserted that the Cheshire letter deals with matters already dealt with. He said he hasn’t responded previously, but wants to provide historical context

Nifong, speaking, he said, as a man of “integrity,” asserted that on April 11 (days after she was pole dancing, according to 60 Minutes, the accuser was too traumatized for any “meaningful discussion”; “no matter how many times they ask the question, that will still be the answer.”

Then Nifong seemed to backtrack. “Even if such statements were made,” claimed he, the defense’s “right to those statements isn’t nearly as clear as they would have the court believe”—the accuser would not really have made a statement to him, and therefore he wouldn’t have to turn it over one way or the other; def att’ys were claiming “a statement whatever they say it is”; prosecutors' note of pretrial interview with accuser is not a statement.

Or, he mused, prosecutors are not stenographers; and can’t be expected to have substantially verbatim recording. Of course, lead investigators do have this requirement, as Brad Bannon (in an eviscerating response) pointed out. Bannon also revealed publicly, for the first time, that on March 24, Gottlieb and Himan were ordered to report to Nifong as the lead investigator on the case.

When Nifong took over as lead investigator, Bannon noted, “he put himself in the position of being a factual investigator in this case.” In that position, he had meetings with witnesses. Bannon asked: what has the accuser said to Mr. Nifong, and when did she say it?

Nifong’s response: he, as the DA and lead investigator of the case, has only spoken to the accuser on one item relating to the facts of the case—whether or not she used the drug ecstasy.

Bannon, with reason, remarked that this claim “stretched credulity.”

Several weeks ago, Ben Niolet, in his N&O profile, asserted that the file showed Nifong never spoke with the accuser about the facts of the case before seeking indictments. Nifong’s admission in court confirmed the report.

More to come.


sceptical said...

If Mr Nifong didn't speak to the accuser about the facts of the case and he refused to speak to the players or their lawyers about the facts of the case, then I would call this the "immaculate prosecution."

Anonymous said...

But he is not just a DA, he is also a lead investigator. LOL.

Anonymous said...

This hoax gets more incredible by the day. So, the DA, who also appoints himself the lead investigator, has never interviewed the woman or the three young men. Simply mind boggling that these judges allow this case to continue. Thanks for the update and appreciate you attending the hearing.

Anonymous said...

Yep, the lives of three men have been ruined, and Mr. Nifong claims he never talked to the woman, but he believes her?
How can he possibly believe her if he never talked to her about her "story?"

Anonymous said...

Just more evidence that Nifong should be disbarred and never allowed to practice law anywhere. That it is possible to be indicted on an accusation without cross examination and fact gathering is truly scarey and it's only October 27th. I hope the voters in Durham are taking all of this in and truly digesting what these facts mean to the average citizen.

Anonymous said...

Indicted, have your photo everywhere, proclaimed an alleged rapist, suspended from college, not being allowed to play lacrosse, not being able to continue with an education, having to spend tons of money on defense-life ruined. And Mr. Nifong claims he never even talked to her.
Only in Durham.

kbp said...

Thanks KC

Was there any mention of who or by what authority Nifong "put himself in the position of being a factual investigator in this case.”?
(quote of Bannon)

Anonymous said...

Keep in mind that many of the voters in Durham espouse the belief that the players, even though not guilty, should be prosecuted and convicted to make up for past wrongs!!!! Even Kafka would not believe this.

Anonymous said...

Bannon also revealed publicly, for the first time, that on March 24, Gottlieb and Himan were ordered to report to Nifong as the lead investigator on the case.

Professor Johnson, I copied this sentence from you post. Call me a cynic, but just because Bannon said it doesn't make it so. Is there any evidence that can make the claim that the DA served, officially, in the capacity of the lead investigator. Because if that is true, it has potentially significant ramifications for the case. Does the DA have any wiggle room on this claim? Can the simple parsing of words by the DA discredit the idea that he was, in fact, the lead investigator after March 24?

Please tell me it's true!!!

Anonymous said...

I hope it is true that Nifong was acting as lead investigator since March 24th. That would be fantastic news for the 3 defendants, because it means Nifong's activities won't be shielded by a prosecutor's complete immunity, and instead will have only the "qualified" immunity that applies to police officers' conduct. And if Nifong has done even half of the improper and unethical things that he appears to have done as "lead investigator," even qualified immunity won't help him avoid substantial civil liability. (Nor will it help the City of Durham -- bad news for Durham taxpayers).

Anonymous said...

2:56 Great post. I hadn't considered the idea as lead investigaor he doesn't have complete immunity. Agreed, great news for the 3 young men, bad for the Durham taxpayer.

Anonymous said...

If Nifong did actually direct (participate?) in the final line-up where the three were somewhat indentified, does his actions not put him in the role of lead investigator--regardless of whether he denies it? Actions (evidence) speak louder than words--well, except in this case.

The Dude said...

The immunity issue is very revealing but there is a bigger issue here. nifong claimed that the defense was trying to make him a witness in the case. it did not go into detail. If Nifong was the lead investigator at any time, he has certainlty made himself a witness in this case. if he spoke to the accuser and asked the one question(he admits) he is a witness in this case. Since he is a potential witness, he must recuse himself and assign someone else from his office. if the potential for conflict is still present the case must be prosecuted by the N. C. attorney General's Office. Nifong can not question himself as a witness and neither can any member of his staff.
The defense merely has to subpoena him and place him on their witness list(potential). Nifong is gone. Maybe that is his entire plot. He will let the case be taken over by the AG and then claim they messed up when they dismiss. In either case the judge doesn't sound like a
rocket scientist. He had to hear these explainations in court and chose to ignore them. Nifong clearly doesn't understand the discovery rules of his own state yet the voters still want this clown. i hope he loses everything because he appears to be an egotistical ass and a stupid one to boot.

Newport said...

Re the Dude's comments. That is not true. As long as the DA has LE with him for factual discussions he has not made himself into a witness in the case. The LE are there to take down the conversation and testify thereto. This is a common practice.

The important issue is what others have pointed out: that Nifong would have only the police departments qualified immunity as to a malicious prosecution claim brought under the guise of section 1983 of the civil rights act in federal court. Nifong just lost has absolute immunity if what KC has reported is correct, and I have no reason to doubt it. Nifong admitted on the record that he has acting as lead investigator, a point many of us have previously asserted. This also brings into play for purposes of ethical violations the Duke dorm room knock and talk, which must be responsible for as lead detective. Add another ethical violation for the state bar to address.

Anonymous said...

Nifong. Stephens. Titus. Now Smith. Into the history books. This absurd prosecution will be studied in future law classes. What an embarrassment to North Carolina! The governor, Easley, and the state attorney general need to act now. The U.S. Senators from North Carolina need to get involved. Stop this abusive farce now.

The Dude said...

Newport 6:13
You are correct with this statement. i was just trying to clarify the earlier post that persons had to be actual eyewitnesses.
In this instance, your statement is correct, however, does anyone know who was with nifong when he spoke to anyone? That is not clear by almost all the cumulative discussions. There is also the matter of Nifong "calling a witness". i could be wrong but I thought Nifong was credited with calling the accusser and asking the one question. Unless it was a conference call, there is a problem. Second, if he taped the call THERE IS A REAL BIG PROBLEM.
Third, calling an accusser for a statement and/or clarification is a no-no in any investigative forum.

As in ALL common practice, Prosecution and defense, when a witness of any type presents themselves. The witness is assigned to an investigator who takes the information. that is because the investigator is now a potential witness. Under Best Practices, the Prosw. or Def. atty. can be present but they should not be the persons asking the questions. Further, they should not iniate contact with the sole purpose of asking questions themselves to avoid going into other material which is discoverable. When someone presents evidence that the accuser used any type of drugs in the past, there is going to be a battle over her statement to Nifong. Credability is involved here and he will be a witness unless an investigator made a report of the questioning. Since this happened back in April, this report is required to be turned over in discovery and apparently has not been done. I guess Gottlieb will be back with updated notes and a report.

Anonymous said...

It is clear that no less than 3 LE officers were with Nifong when he spoke to the accuser on 4/11.