Monday, December 18, 2006

Another Durham "Gang Rape"

“Anytime you have a victim who can identify her assailant,
then what you have is a case that must go to the jury.”
--Mike Nifong, April 11, 2006

Nifong administrative assistant Candy Clark “spoke to the [accuser]
late last week and usually contacts her once or twice a week.”
--Duke Chronicle, October 18, 2006

Nifong “sought indictments based on a version of events in which [Kim] Roberts played a central role without even asking Roberts whether the accuser’s statement was true.”
--blog, October 13, 2006

“My public comments in this case . . . were essentially restricted to 1) my belief that the victim had in fact been sexually assaulted . . . and 2) my hope that one or more of the persons who were present but not involved with that assault would cooperate with the investigation.”
--Mike Nifong, June 19, 2006

---------

It was, to borrow a phrase, a crime that talked about what the community stood for—a crime that needed a prosecutor willing to make a statement for the Durham community that this was not the kind of activity it condoned.

On April 10, 1989, a 21-year-old woman told police that she endured a horrific experience at the Woodcroft Shopping Center, in southern Durham at the intersection of NC 751 and NC 54. The May 26, 1989 Herald-Sun recounted the accuser’s harrowing ordeal:

Four men approached her in the shopping center’s parking lot and forced their way into her car.

The woman told detectives one of the men drove south on NC 751 nearly to the Chatham County line before parking the car in a deserted area. Each of the four then sexually assaulted her before returning her to the Woodcroft Shopping Center.

The woman filed a complaint, and Investigator M.J. Thaxton took over the case. (Thaxton did not respond to several e-mails asking for comment.) A microfilm search through old issues of the Herald-Sun and N&O uncovered no reference to the prosecutor’s office making any public statements on the case as the investigation proceeded. Despite the public nature of the kidnapping, no one from the D.A.’s office branded the alleged rapists “hooligans,” or used the bully pulpit to demand that witnesses step forward.

Thaxton, nonetheless, had an accuser—and she could identify her assailants. The heinous nature of the crime—a gang-rape of a poor, defenseless woman—necessitated getting the criminals off the street as soon as possible.

The prosecutor didn’t wait for the next meeting of the grand jury to seek indictments; instead, Thaxton arrested the four men, who were lawn-care workers, while they were on a job in Cary. One was 28 years old, a second was 22, the other two were 18. All were either black or Hispanic. Each was charged with first-degree kidnapping and first-degree rape. Because they were arrested, of course, each received a right to a probable cause hearing.

Displaying the community’s outrage, a judge imposed bond of $100,000 for the two alleged ringleaders. Since neither could meet the bond, both remained in jail.

After filing charges, however, the prosecutor and his office failed to keep in touch with the accuser. By the end of May, the prosecutor publicly conceded that the “victim has left residence . . . [and] her whereabouts are unknown.”

Even more startlingly—at least after what we’ve all witnessed over the past eight months—Thaxton actually decided to investigate whether the accuser’s story was credible, rather than maintaining that only a jury could decide the issue. He discovered that the accuser’s report to police contained what the prosecutor described as “numerous demonstrably false statements.” Thaxton also uncovered “highly embarrassing” information about falsifications in the woman’s allegations. Therefore, the officer concluded that the “charges appear to be without substance.”

The prosecutor agreed. On May 25, 1989, all charges against the four men were dropped.

---------

No case has identical facts. But procedures should remain constant. To sum up the different procedures and investigative conduct by law enforcement officials between Durham’s 1989 “gang rape” and its 2006 version:

1.) In 1989, the Durham prosecutor respected the canons of the state bar’s ethics code and refrained from either misleading public statements or statements that heightened public condemnation of the accused; in 2006, Nifong acted as if these rules did not apply to him.

2.) In 1989, the prosecutor accepted the mandate in the ethics code to exercise discretion in which cases to prosecute; in 2006, Nifong publicly, and inaccurately, stated that he lacked discretion, and was required by law to take the case to the jury as long as the accuser could identify her alleged assailants, no matter how incredible her story.

3.) In 1989, Thaxton, the lead investigator, appears to have talked to the accuser about the incident, and investigated discrepancies in her story; in 2006, the supervising investigator, Nifong, has asserted that he still hasn’t spoken to the accuser about the night in question, and that he sought indictments without re-interviewing the second dancer about her allegedly witnessing the start of the crime. He described this approach as “the good old-fashioned way” in which “witnesses got on the stand and told what happened to them.”

4.) In 1989, the D.A.’s office lost touch with the accuser; in 2006, the office regularly chats with the accuser, with the D.A. even claiming that they talk about her children (though, of course, not about anything relating to the accuser’s allegations).

5.) In 1989, faced with what he thought were dangerous criminals, the prosecutor acted to get them off the streets as soon as possible by having them arrested; in 2006, faced with what he claimed to think were dangerous criminals, Nifong waited nearly 10 days before arresting them, thereby denying the targeted students the opportunity for a probable cause hearing.

More differences between the procedures followed in the 1989 “gang rape” and the 2006 “gang rape” might exist; unfortunately, because the case never made it to trial, the court file couldn’t be located, and the prosecutor declined a request from me to comment on his actions.

By the way: the name of the prosecutor in that 1989 case?

Mike Nifong.

Hat tips: B.R., B.J., Bethany

49 comments:

GPrestonian said...

Nifong probably still looks at the 1989 case as 'the one that got away'. Prevented that in 2006 by keeping his False Accuser hostage.

Exasperated said...

Wow... Just wow. This is the kind of story that a good journalist should have had several months ago. The fact that it took Professor Johnson, brilliant as he is, an academic by trade, to discover this is unfathomable to me. Instead, today's journalist is content to collect quotes and use them to construct unverified stylized facts that fit their social agenda. If the social agenda in question is popular, they expect it to garner praise, and strangely enough, it does.

It just sickens me that Professor Johnson has to do the journalists' job for them because of their delinquency in their duties to society as transmitters of information. So instead of Emile Zolas, we have Emile Zola wannabes who imitate the passion while ignoring the due diligence part, causing more harm than good. And people who will not stand for injustice are forced to clean up their mess, as Professor Johnson has been doing for a while now.

God, everytime Professor Johnson writes something like this, I get angry at the people who should have written it first. I guess I am a glass-is-half-empty kind of guy; I could ostensibly just be glad that there is someone who has written stuff like this.

Anonymous said...

With the exception of Neff and a little bit of Niolet, the press in North Carolina has been a vast wasteland on the Duke hoax case. Pathetic. Worse than pathetic. The N&O has much to explain about its March 24-25 coverage, including the sympathetic interview with the accuser.

Anonymous said...

Chicago writes:

gprestonian,

That was the single funniest comment I have read all week. I just laughed my ass off.

Anonymous said...

How much is known about the Grand Jury? Charles A. Harris is the foreman's signature on a number of documents that are part of the public record? Does anyone know who he is? Can the defense team take depositions from the members of the GJ, now that the Nifong-Meehan conspiracy has been exposed? It's amazing that North Carolina doesn't require a taping or record of the proceedings.

Anonymous said...

Chicago writes:

Gprestonian had me laughing so hard I forgot to compliment KC on yet another outstanding piece!

Anonymous said...

Just "WOW"--but he wasn't up for election at the time, so he did it by the books!

Thank you again, KC, for all of your dedication to seeking justice for these young men, and ultimately many more people who are denied due process.

bill anderson said...

Good work, K.C. The 1989 case did not provide the political benefits that the Duke case does today. Thus, we see what happens when politics is the deciding factor in what charges and the like will be pursued, and what will not.

The more Nifong pushes this case, the more trouble he makes for himself. Prosecutors are not supposed to push on to trials unless they have evidence that makes them believe they can win a conviction. From what we know to be true -- and there is NOT going to be a "smoking gun" produced -- the only thing for which Nifong can hope is that jurors ignore the evidence.

We have seen posts by Durhamites who already say they would ignore evidence if they were on a jury. In other words, they are admitting to wanting to commit a crime. Thus, Nifong also is encouraging criminal behavior among potential jurors.

The guy is like Typhoid Mary. Not only has he himself engaged in illegal behavior, but he has managed to pull people like Brian Meehan and others into a life of crime. And he now wants jurors themselves to break the law.

One hopes that someone, SOMEONE in North Carolina with legal authority will step in and pull the plug on this farce. People need to stop treating it as a serious rape case and to see it as a very sick joke.

Anonymous said...

A sick joke? That's something you laugh off (in a disgusted sort of way). This is not a joke; it's a crime, the kind of crime that destroys the public's faith in our justice system and encourages people to have contempt for the law and for law enforcement. This is a crime that needs to be punished -- quickly and severely. Nifong, Gottlieb, et al., should all be in jail.

Guy in Durham said...

Remember last summer's N&O article that spoke of Nifong's emotional instability, and more specifically of his steadfast refusal to ever change course once he has made a decision? Bottom line, he apparently did not think his cunning plan all the way through.

While I would wish for a speedy resolution to spare the boys and their families any more pain and expense, my take is that the best outcome will be to put the accuser on the stand, and have the defense make a monkey out of her. She will have no credibility whatsoever. The only way to teach Nifong's Black Trash handlers (as he is only a dull-witted pawn) a lesson is to thoroughly beat their whole position into the dirt.

Anonymous said...

Hat's off to Boston College on Saturday Night skit.

Amy Poehler, a BC graduate, portrayed Grace and wrote the skit.

James said...

KC, another great entry. Hats off to you.

Perhaps the lawyers in the room can help me here, but should the motion to relocate the trial (if there is one) be denied, what steps could the defense team take to have a single judge hear the case, instead of laypersons? Maybe I've seen one too many episodes of Law & Order, but can't the defendants request a trial heard by the judge instead of twelve regular citizens? If I were one of the defendants I would feel much more confident if a impartial judge heard my case instead of some of the Chan Hall, Victoria Peterson, Wendy Murphy, NBPP types. Just a thought. Can any lawyers comment on this? Or is North Carolina as backward on this as they are on Grand Juries?

Anonymous said...

No, they can not request a bench trial.

Anonymous said...

The prosecutor in the 1986 case was Nifong? WOW , UNBELIEVABLE. can you say hooligan

GPrestonian said...

1:33 am Chicago:

Hey Chicago, glad you got a kick out of it! :>)

As others have pointed out, there wasn't an impending election concerning Nifong in 1989. Nor was he the HMFIC at that point, and probably couldn't have gotten away with such behaviour then.

Or maybe he wasn't yet eeevilll - who knows when Darth Nifong crossed over to the dark side?

Starting my search now in all case document sites for nifongcrossesovertothedarkside.pdf ;>)

Anonymous said...

Isn't "hooligan" a racial slur against Irish people (Finnerty is Irish, don't know about the others)?

Could this be added to other civil rights complaints agaist fatso?

James said...

Why not a bench trial? I thought they would have the option.

GPrestonian said...

KC

Thanks for clearing up just what it was that Meehan/Nifong ommitted from the 'kinda final' DNA report.

An enormous problem, yes, but not nearly as enormous as had they omitted the fact that there were no matches for any LAX players, esp Reade, Collin and Dave.

I've got a feeling that this is not the smoking gun ppl want it to be, unless it can be established to what extent Meehan & Nifong conspired to make the report so obtuse - did they discuss the 3 suspects specifically?

Geez, the 5/12 letter is so much jargon & code that laymen can't tell what it says...

Nifong's a toad, to be sure, an evil toad, but we do have to remember that the DA is under no (legal) obligation to tell the whole story in a GJ. He seems to be skirting the edges constantly, but no one thing he's done is so off the edge that it's actionable. Or at least I'm afraid that's the case.

GPrestonian said...

9:07 James:

James, another commentor (nick was 'durhamlawyer'??) a few weeks ago noted that a bench trial in criminal cases is not an option in NC - he quoted the relevant statute or NC Constitution passage.

Anonymous said...

Chicago writes:

Did Nifong's handling of Kerry Sutton (I think that was the lawyer he blasted in front of a full court room) in the midst of an unrelated case when he stormed into a court room, cursed at her and said he was going to perform a sex act on her a crime as well? I can not believe that story did not get more publicity.

Anonymous said...

9:24: You're wrong that Nifong has not crossed any lines. He's crossed plenty: violating ethics rules by making highly prejudicial, extrajudicial statements about suspects; directing his agents (the cops, who were his agents since he was acting as lead investigator) to go to the Duke dorms and interview suspects whom Nifong knew were already represented by counsel; lying (on multiple occasions) to the tribunal; refusing to consider exculpatory evidence (obligatory, if you're a prosecutor); outright violation of Brady v. Maryland (a US Supreme Court case which requires prosecutors to turn over ALL evidence which is, or may be, exculpatory to defense counsel . . . . I could go on and on. Those are just off the top of my head. These violations don't "skirt" the line -- they cross it, and they cross it in an egregious, indefensible way. As others have said so eloquently, Nifong's toast.

Anonymous said...

Great job, KC. More ammunition that the "investigation" in the Duke case differed from others.

bill anderson said...

We should remember that any one of Nifong's acts would be considered bad, but not enough to hang a prosecutor. However, when taken together, they represent a pattern, and a pattern of criminality.

This places me in a moral quandary. Candice E. Jackson and I had a paper in The Independent Review in June 2004 in which we called for repeal of RICO. However, as I see it, Nifong could find himself indicted under criminal RICO, and definitely can be the target of a civil RICO suit.

One side of me wants to see him RICO'd into oblivion, and the other side says it still is an immoral law, and that I cannot support its use in any situation. However, somehow I doubt that federal prosecutors and civil attorneys are going to be interested in my moral judgments of the RICO statutes.

Perhaps there are some lawyers on this blog who can enlighten me about the RICO possibilities here.

Anonymous said...

Dr. Johnson, it has been a pleasure sitting in your classroom again. The free education received here is second to none. With the highly capable assistance of Dr. Anderson, you have provided a place for us to gather each day to receive another lesson in how to recognize and expose a hoax. Thanks again for all your work in providing this information. It has been an amazing and interesting thing to watch.

Anonymous said...

After reading about all the dna found on precious, that 3, 4, or 5 posible rapists could be roaming the streets and no one in Durham cares. They could be NCCU students after all we do know college kids do drink, party on weekends and hire strippers. I think Nifong should continue his investagation.

James said...

Thanks, gprestonian. Didn't know. I'm glad now that I did my four years in Durham and escaped with any brushes with this backward justice system.

Anonymous said...

I have a question, if Nifong were to interview the FA today in regards to all that DNA that was found on her would he have to hand over that information to the defense ?

Victim in Masachusetts said...

Yes he has to by North Carolina State Open discovery Laws.

We have the same laws up here in Massachusetts.

My statements were handed over to the defense.

Nifong is just looking to see how many of N.C. discovery laws he can break before he is stopped.

Anonymous said...

Here's a link to SNL skit:

http://www.youtube.com/watch?v=jQe40ycRQ0s

Anonymous said...

10:20 WOW - You are so right - What a joy and pleasure it is in both KC and Bill Andersons classroom. Yesterday Bill answered a question I had about MSM and referred me to an article he wrote for a conference - terrific read. A revulation is occurring.

GPrestonian said...

9:43 Anon:

Poor choice of words on my part - instead of 'actionable' I should have said 'enough to catch the authorities' attention, get them off their asses & do some something'.

Bill Anderson put it better @ 10:02 - "We should remember that any one of Nifong's acts would be considered bad, but not enough to hang a prosecutor. However, when taken together, they represent a pattern, and a pattern of criminality."

He emphasized a crucial distinction that I did not - 'a prosecutor'. I did not mean to imply that I think that Nifong's behavior has been OK, it's just that the authorities will overlook (or privately chastise) isolated behavior that one would think would give rise to legal action.

In Nifong's case I think we may have reached critical mass - Meehan's testimony Friday, and Nifong's lies about it, may well have been the proverbial 'straw that broke the camel's back' that we've all been waiting and hoping for.

Anonymous said...

to 1149
from a non-lawyer
Remember that Nifong will continue this kind of despicable, disgusting, deceitful behavior. Nifong will now be desparate just like a cornered animal. He will do anything to save himself.

bill anderson said...

The key word here is "pattern." This is more than holding a prosecutor to a "Caesar's Wife" standard, and one can understand how anyone, especially a prosecutor who usually deals with guilty people, can have an ethical lapse.

The thing with Nifong, however, is what a previous poster has called a "critical mass." For example, had Nifong not stalled elsewhere, or been duplicious in his remarks, the Meehan comments and revelations by themselves would not have meant as much.

See, had Nifong been putting forth an honest effort all along, then we might not be so suspicious of his actions. Had he acted in "good faith" all along, and then apologized profusely after Meehan's remarks, we might be able to overlook them, at least from a legal point of view.

However, I should add that had Nifong acted honorably and in "good faith" all along, we would not be here at all. This case would have been dropped.

One other thing that someone has pointed out to me (VIM, specificially): All of the court proceedings have been recorded, thanks to the good efforts of Kirk Osborn, one of Reade's attorneys. Everything is on the record, and that is going to make a difference, believe me.

Anonymous said...

Ok then ...Where are the Federals and the Attorney General????

We need the cavalry......and be da* quick about it AG??????

Anonymous said...

KC,

in this "gang rape," there were more than 88 samples of DNA collected

folly?

Anonymous said...

to 11:27: "What a joy and pleasure to be in KC and BA's classroom"

dude, this is seriously gay patter (not that there's anything wrong with that)--i could see divine saying that to a dwarf in a john waters film

the real star here is Marv from "Sin City"

he bitch-slapped Mike Nifong in places a real man would rather left unsaid

"I love, you, Precious, your attackers are going to get bedbugs all over their scrotums"

duke09parent said...

Did any of the defense attorneys at last week's hearing ask Meehan if Nifong asked him to delay his final report? The primary was in early May, right? So, Nifong needed to get the indictment done before that and he needed it to have continued credibility past the primary, which a full report of the DNA findings would damage. Meehan's report, limited as it was, was not sent until May 12.

Anonymous said...

good point, 1:11

thank you for not alluding to my homosexuality

Kemper said...

KC,
I don't know what to make of this, but I am passing it along to everyone. I posted earlier that I had heard Nifungu would be facing Bar summons before Christmas, and Sat I had heard that that summons had been postponed to add more serious charges. At lunch today a lawyer friend, sorry to admit that, told me the Nifungu would appear before the Bar Disciplinary committee, TOMMORROW, TUES the 19th., and that he had already been served with his summons. Who knows what is going on, but it is not good for Nifungu, that's for sure. Disbarment is what I think will happen, but he gets to appeal the verdict to NC Supreme Court, I am told he will be wasting his time. I don't know how soon such action takes affect, that is does he get to keep his license while he appeals, or is he busted right then. Fun Fun Fun Kemp

Anonymous said...

Kemper, sorry but until I read it or hear about it on T.V.

I have no faith in the NC justice system. If Nutfong does get disbarred that is just not good enough.

Anonymous said...

good question duke09parent.

I have another question. What is the legal rationale for calling a prosecutor as a witness? Nifong has on more than one occasion said that he specifically did not interview the AV because he did not want to put himself in a position to be called as a witness. Clearly prosecuting attorneys often (or usually?)interview alleged victims of crimes, without fearing they will be put on the witness stand. What is it in this case that would cause him to fear that if he interviewed her he would put himself in that position? Is it the fact that the AV changed her story, and the prosecutor could be asked to testify if he hears her change her story? In which case did Nifong NOT interview her BECAUSE he knew her story kept changing (and therefore knew there was an issue with her credibility?)

I ask this because almost all experts seem to agree that not interviewing the AV was a major error in the investigation, yet Nifong seems to think it was legally justified, or even SOP. It seems his motive is important (if he were charged with prosecutorial miscondict, could he have to testify as to his motive?)

Anonymous said...

1:19:

here's what i want to happen to mikey, in no particular order:

1. unable to profit (eg, book, film deal) in any way from case

2. disbarment

3. personal apology to everyone in durham

4. convicted of federal crimes of violating civil rights of 3

5. sued personally (how do we prevent him from hiding his assets at this time?)

6. convicted of federal criminal charges of obstruction of justice

7. sent to prison for 10 years, no parole (there's no parole in federal prison, right?)

8. name a prosecutorial misconduct statute after him. eg, The Nifong Proxy

jc

Kemper said...

OK,
More. After a long discussion with State Bar, here is the time line. A grievance is heard and sent to the state bar investigators, they decide if the grievance can become a complaint. Nothing is public until the investigators decide it is a complaint at which time they serve the suspect. He has 20 days to respond. Then he is tried. Nothing could happen Tuesday except the filing of a complaint (basically the Bar indictment) which would be a public record. The Bar disciplinary committee only meets quarterly, last meeting, OCT, next meeting Jan 16th-18th. I think my lawyer friend got it wrong, and nifungu at best could be served with the complaint on Tuesday.

Victim in Massachusetts said...

1:36 I disagree with

#7 You only want 10 years, I want life with a cell mate named bubba

Or have him on probation for life, so he can begin to pay the civil suits that will be coming. If he does go for a job he will have to put on a job app. that he is a convicted felon.

Anonymous said...

disagree 2:00, 1:36 nailed it

Duke Aunt

Anonymous said...

Kemper - I hope someone is trailing Nifong tomorrow and keeping watch whereever the Bar meeting occur.
1:01 = I am a female and a retired Emergency Department Rn. I have seen it all over a fifty year career (including working five years in a jail.) Take the trash talk and insight to NCCU.

Anonymous said...

Any case that Meehan has ever provided DNA evidence for should be investigated

Michelle from Madison said...

You-Tube Video: SNL Nancy Grace - Duke Lacrosse
Holiday Message from Nancy Grace.
http://www.youtube.com/watch?v=YycOd4dJd40&mode=related&search=



You-Tube Video: Duke Lacrosse - LAST STAND
Willie Nelson song
http://www.youtube.com/watch?v=OFVvCpgH4CQ&mode=related&search=

Michelle from Madison said...

Nancy Grace “finally behind bars after wild weekend crime spree.” The news-article also has an article on Predator Grace stating that “Nancy Grace Loses It After Hearing Of Phil Spector Hung Jury.”

http://nancygracemustdie.com/cnnews/