The Wendy Murphy File

To suggest [the indicted players] were well behaved: Hitler never beat his wife either. So what?
--“The Situation,” 5 June 2006

I bet one or more of the players was, you know, molested or something as a child.
--“CNN Live,” 3 May 2006

I never, ever met a false rape claim, by the way. My own statistics speak to the truth.
--“The Situation,” 5 June 2006

Three elements of this case distinguish it from its high-profile criminal counterparts. First, the behavior and statements of the students’ own professors were cited as grounds for a change of venue—an action all but unprecedented in modern American criminal law. Second, blogs have played an important (and, I would argue, helpful) role. Third, the 24-hour cable news networks seized upon the case from the start, and have continued commentary more sporadically thereafter.

Sometimes, these shows have offered quality commentary—the “Abrams Report” early on, some broadcasts of “Greta” in recent weeks. Often, however, these programs feature little more than talking heads, with one adopting a pro-prosecution slant and another praising the defense.

A frequent guest on MSNBC, FOX, and CBS has been Wendy Murphy. Usually described as a former “sex crimes prosecutor” and law professor at Boston’s New England School of Law, she’s actually an adjunct professor, an inconvenient fact she rarely, if ever, reveals. Murphy defended Nifong in a recent USA Today op-ed—and her remarks were eviscerated by Liestoppers, which also has nominated her as a “hag of the hoax.”

Murphy’s bizarre claims to USA Today prompted me to perform a Lexis/Nexis search of her myriad case-related appearances. The results were deeply disturbing. In addition to the outrageous quotes highlighted above, on at least 18 occasions over the past nine months, Murphy has made demonstrably untrue statements. She also has engaged in a pattern of wholly unfounded speculation and has routinely denigrated due process.

Given that the preamble to the Massachusetts State Bar’s Rules of Professional Conduct states that “a lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice,” Murphy’s behavior raises some serious questions:

• What sort of network would put such a figure on the air?

• How could the Massachusetts Bar license such a figure to practice law?

• How could Dean John O’Brien of New England School of Law allow such a figure to teach future lawyers?

Untrue Statements

Section 3 of the Preamble to the Massachusetts State Bar’s Rules of Professional Conduct states: “As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.”

Murphy, on the other hand, has regularly gone on national television and cultivated not knowledge but its opposite, over and over again offering factually inaccurate statements.

1.) (22 December 2006) “One of the reasons I think she should be thought of as fairly credible is that she rejected a 2 million dollar plus offer by people on behalf of Duke at the outset.”

In fact, the accuser told police on June 30 that she had never been offered any money, by anyone, to drop the case.

2.) (1 May 2006) “All the photographs showing how really fine she was when she left scene were doctored, where the date stamp was actually fraudulent.”

In fact, these photographs have been cited in various defense motions, and even Nifong hasn’t challenged their veracity.

3.) (11 April 2006) “You know, these guys actually . . . some of them have been, according to neighbors, reportedly been involved in not only carousing activity but other sexual offenses.”

I am aware of no statement, by any neighbor, accusing any of the players of involvement in “other sexual offenses”; the Coleman Committee Report established that they had no such records.

4.) (19 April 2006) “All of them took the Fifth. All of them refused to cooperate. All of them refused to give a DNA sample, until the court produced an order compelling them to do so.”

In fact, Dave Evans, Dan Flannery, and Matt Zash gave multi-hour statements to the police, voluntarily gave DNA samples, and offered to take lie-detector tests. No player has invoked the Fifth Amendment at any point in this case.

5.) (17 April 2006) “These kinds of [photo] time stamps . . . could be off by a wide margin. But it’s important to note here the other woman involved here has heard this spin, if you will, by the defense, and has said ‘That timeline is way off.’”

In fact, while in two early interviews Kim Roberts criticized the players and their attorneys, she never made the statement, or anything resembling it, that Murphy attributed to her.

6.) (19 April 2006) “If you think that I would believe for a minute the spin coming out of one of these defense attorneys, given their silence around the DNA report, their deafening silence and lawyering up in the immediate aftermath of the crime.”

In fact, most of the players waited more than a week after the party to retain counsel.

7.) (17 April 2006) “Brett and Matt happen to be the real names of two of the captains who lived in that home.”

In fact, the three residents of the house were named Matt Zash, Dan Flannery, and Dave Evans.

8.) (21 April 2006) “It could have helped her, if she had been drunk . . . but she clearly wasn’t.”

In fact, the accuser informed UNC doctors that not only was she drunk, but she followed the dangerous course of consuming alcohol while taking Flexeril, risking side-effects that included badly impaired judgment.

9.) (27 April 2006) “It was because a broom handle was used, which by the way, doesn’t produce DNA when you put it inside someone.”

The search warrant for the lacrosse house contained no mention of a broom; and at no point in her myriad stories did the accuser claim assault by a broom.

10.) (2 May 2006) “The broomstick DNA has not yet been revealed.”

In fact, no “broomstick DNA” exists, since the police never seized a broomstick.

11.) (5 April 2006) “She had a torn genital area.”

In fact, in a recent court filing, even Mike Nifong conceded, “There is no scientific or other evidence independent of the [accuser’s] testimony that would corroborate specifically” a charge of rape.

12.) (24 May 2006) “Over 99 percent of cases indicted are in fact legitimate; the guys are guilty.”

In fact, no credible study exists contending more than 99 percent of people indicted are guilty.

13.) (16 May 2006) Remember, this is the guy [Dave Evans] who the victim said she’s 90 percent certain he assaulted her, and then as it turns out, she also apparently described that she scratched him, and we find his DNA under her fingernails.

In fact, the DNA report could not exclude Evans; no definitive match existed, as Dr. Brian Meehan made clear in his December testimony.

14.) (11 May 2006) “According to Durham president, the president of the university [Duke?], he said March 22 in a press release, many players weren’t there that night. Well, what does that tell us? It tells us the defense motion [on the lineup] is a bunch of nonsense, because if many players weren’t there, it’s a darned good chance if this was a hoax that she could have gotten it wrong.”

In fact, Richard Brodhead made no statement, of any kind, about the case on March 22; and he never claimed, one way or the other, to possess knowledge on who did or did not attend the party.

15.) (2 May 2006) “She was under the influence of a date rape drug.”

In fact, a toxicology report indicated no such finding.

16.) (13 June 2006) “The defense, very early on, filed a motion--I’ll call it a motion to shut up the prosecutor--so the prosecutor could suffer a suppression of evidence, a motion to dismiss the charges, as punishment for speaking publicly.”

In fact, as this library of defense motion reveals, no such motion exists.

17.) (22 June 2006) “The defense today, if this really is a big hoax, could have said to the judge, in writing or verbally, ‘Judge, I want a trial date ASAP.’ Call it a speedy trial motion; call it whatever you want. They had a right today to ask that this case go to trial immediately. And the whole thing would be over by August.”

In fact, North Carolina does not grant defendants such a right—and, contrary to Murphy’s repeated assertions, Reade Seligmann’s attorney, Kirk Osborn, filed such a motion.

18.) “And maybe what she said, which makes her particularly credible, is, ‘These guys didn’t ejaculate on or inside of my body,’ which means she deserves extra credibility because no one’s suggesting that she lied about whether there would be DNA found on her person.”

In fact, depending on which story she happened to be telling, the accuser claimed that either one or two of her alleged attackers ejaculated.

The above 18 items involve incorrect statements of fact, not peculiar opinions. Again, I ask:

• What sort of network would put such a figure on the air?

• How could such a figure be licensed to practice law?

• How could New England School of Law, which describes itself as an “educational community characterized by substantive instruction with a strong foundation in ethics,” allow such a figure to teach future lawyers?

Wholly unfounded speculation

Quite beyond her factually inaccurate statements, Murphy has engaged in a pattern of wholly unfounded speculation—imagining evidence that she would have no reason to believe exists, or events that she would have no reason to believe occurred. Examples include:

1.) (19 June 2006) “Let me tell you what I think [Nifong] probably has—statements from some of the players who are probably cooperating because they actually have a conscience and think it matters when you tell the truth. And I bet she has GHB in her blood.”

2.) (26 Dec. 2006) “There’s a good chance a few of [the players] actually saw what happened and may well be cooperating.”

3.) (26 Dec. 2006) “Are there photographs? We know there were before photographs and after photographs. There’s a chance there are during photographs.”

4.) (5 April 2006) The players were “thinking, ‘I was entitled to do this. I’m a member of a wealthy white boy’s school in a community that allow me to do what I want when I want. They’ve gotten away with a lot for a very long time. Why not go home and celebrate?’ . . . The e-mail shows that these guys were of the mind that whatever had happened to this woman was just another day at the beach. They’ll rape her, sodomize her and tomorrow they’ll kill her.”

5.) (6 April 2006) “Either [Coach Mike Pressler] didn’t tell [Duke administrators] the whole truth about what happened, he helped the guys cover up or encouraged it.”

6.) (11 May 2006) “[The accuser] said I’m 100 percent certain it was this guy and that guy. And the third guy I think who’s about to be indicted is apparently named Dan. There are four Dans on the team. I want to put some money on the fact that a Dan will be indicted next week.”

7.) (9 April 2006) “If the DNA isn’t going to match, they wouldn’t need to do this. It’s almost comical that they think a photograph is proof positive that a rape didn’t happen. It’s not a smoking gun. It’s a muddying of the waters.”

8.) (10 April 2006) “What [the players] did was clam up and say, ‘Let’s stick together so we can get away with this.’”

No evidence exists to substantiate any of the above statements.

Denigrating Due Process

Section 3 of the Preamble to the Massachusetts State Bar’s Rules of Professional Conduct states the following: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

Murphy, on the other hand, has exhibited what borders on contempt for due process, as the examples below suggest.

1.) (August 7) “How about the defense attorneys shutting up.”

2.) (May 2) “Stop with the presumption of innocence. It doesn’t apply to Duke . . . When they make administrative decisions about student behavior they don’t owe them any due process.”

3.) (May 1) “I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you’re a liar.”

4.) (May 1) “Defense attorneys lie with impunity.”

5.) (April 10) “These guys, like so many rapists—and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”

Occasionally, Murphy has offered statements that, with passage of time, come across as unintentionally ironic.

On August 7, for instance, she asserted that “the defense attorneys are hiding [DNA reports].” We now know that someone was hiding DNA material—but it wasn’t the defense. And on June 19, she stated, “I want to vote [Nifong] up. Whatever, you know, next rung of the ladder prosecutors can go at, he deserves to be promoted and celebrated.” In light of the state bar’s filing of ethics charges, I doubt many people would consider Nifong a suitable candidate for promotion.

Again, I ask:

· What sort of network would put such a figure on the air?

· How could such a figure be licensed to practice law?

· How could New England School of Law allow such a figure to teach future lawyers?