Saturday, April 14, 2007

The Nifong Preliminary Hearing

Yesterday’s Disciplinary Hearings Commission hearing gave Mike Nifong’s attorneys an attempt to practice some of their arguments for the June ethics trial. Based on what I saw, they have a lot of work to do between now and then to salvage the DA’s law license. Some impressions of yesterday’s events:

1.) Nifong’s lead attorney, Dudley Witt, needs to return to the drawing board.

Although Witt claimed he wanted a narrow dismissal of minor elements of the Bar’s charges against him, he was in fact searching for something more. The intellectual foundation of Witt’s argument was that unless the Bar could prove that Nifong either violated a specific North Carolina statute or the US Constitution, the Bar could not claim that the DA violated Rule 3.8(d).

This rule requires all prosecutors to, “after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

As DHC chairman Lane Williamson repeatedly pointed out in exchanges with Witt, the wording above contains no provision suggesting that its provisions don’t apply if a trial does not occur; or that requires the Bar to prove the defendant violated either a North Carolina law or the US Constitution for the rule to have any effect.

2.) Witt’s tortured definition of the rule doesn’t help Nifong in any case.

You would think a lawyer who pursues the strategy offered by Witt at least would do so because his or her client had clearly broken no law. Yet there seems to be little question that Nifong has violated North Carolina Gen. Stat. § 15A‑282. That law states that “a person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available.”

Witt repeated Nifong’s longstanding claim that in belatedly providing more than 1800 pages of underlying DNA data to the three falsely accused lacrosse players, the DA complied with the statute’s reporting requirement.

Yet it was not three but 46 Duke students that were subjected to Nifong’s NTO order. If Nifong truly believed that his October data dump represented the “report” he needed to provide to all NTO subjects, on October 27, 2006, he would have provided the attorneys for all 46 of the players subjected to the NTO a copy of his “report.”

Of course, he didn’t do so then—and still hasn’t done so to date. Only when charged with ethics violations did the DA bizarrely claim that his data dump was the “report” the law required him to give to all 46 players.

3.) The chair of the commission, Lane Williamson, is an impressive figure intellectually.

Williamson conducted the hearing as if he were running a law school seminar (with Witt as a student who didn’t quite get the lesson). As Witt suggested that no firm guidance existed regarding the kind of chares that Nifong faced, Williamson produced a case that neither side had brief but which seemed remarkable on point. In the Matter of Attorney C (Colorado, 2002); “If the exculpatory evidence is material, then the prosecutor must disclose that evidence in advance of the next critical stage of the hearing.” The chair noted, “I think that gives pretty good guidance.”

When Witt tried to claim that there “were not any critical proceedings in the criminal case” between the formation of the Nifong/Meehan conspiracy and its ultimate revelation, Williamson shot him down: “Why can’t any one of those [June, July, or September hearings] be considered a critical stage of the case”?

Some of Williamson’s better lines:

  • “We’re not dealing with expert discovery; we’re dealing with it as an adjunct as to the duty to disclose exculpatory evidence.” Rule 3.8(d) “is pretty straightforward”—prosecutors must make timely disclosure.
  • Witt was engaged in “almost a medieval scholastic argument to argue is there a constitutional violation if there’s no trial?”
  • “An uncharitable person would say that if [Nifong] were trying to hide the evidence that the DNA evidence did not match any of the lacrosse players under suspicion but also that there were other guys’ DNA, you would do exactly that—you would dump the information.”
  • On the DNA, “we’re not talking about the nuances of the science here . . . absence of evidence is not evidence of absence, but here, knowing that there was DNA testing that shows evidence of other people, that is evidence of absence.”

And when Witt half-heartedly resurrected Robinson Everett’s assertion that perhaps rape shield statutes could justify Nifong’s unilaterally withholding exculpatory evidence, Williamson interrupted to shoot him down. Everett’s explication, the chair noted, is “preposterous.”

4.) Lawyers Matter

I have been spoiled over the last several months watching brilliant attorneys like Brad Bannon, Jim Cooney, and Joe Cheshire in action. Dudley Witt, to put it mildly, is no Joe Cheshire. He struggled to depart from his script in response to Williamson’s peppering questions, and generally did little to impress. Perhaps no lawyer could win with a client as weak as Nifong, but Witt seemed to be going through the motions.

The Bar’s Katherine Jean, on the other hand, showed an ability to think on the fly. Picking up on Williamson’s citation of the Colorado case, she astutely contended that by any measurement, at least two “critical stages” (namely, the April and May indictments) passed between Nifong learning of the exculpatory evidence and his eventual October data dump.

Finally, one lawyer was a particularly powerful presence at yesterday’s event. Brad Bannon’s cracking of the DNA conspiracy set in motion the chain of events that culminated in yesterday’s hearing. Bannon himself attended the hearing. And Nifong’s attorneys suggested what could be termed the “Bannon Rule”—that the state experts should be allowed to produce reports that cherrypick evidence and only include material favorable to the state. (The state has experts, the defense has experts, and both can set themselves, said Witt, to figuring things out: “this is part of the adversarial process.”)

This system would work, I suppose, as long as Brad Bannon could be farmed out to every defendant in the state to figure out what the prosecutor’s experts had tried to conceal.

(By the way, for those interested, Bannon and Cooney made posts last night at the Liestoppers forum.)

5.) Previewing Events to Come

Williamson repeatedly asserted that “intent is important here.” The only way to evaluate that point, he noted, was for the trial to hear testimony from Meehan and from the Durham police officers who were present for the Nifong-Meehan hearings. This promise no doubt chilled the temper of Sgt. Mark Gottlieb and Inv. Ben Himan.

Also, Williamson obtained an admission, once and for all, that Nifong knew of the exculpatory DNA evidence in April. He had the following exchange with Witt:

Williamson: “I believe your answer admits that Mr. Nifong knows from his meeting with Dr. Meehan that Mr. Nifong knew that there were positive results from the other individuals.”

Witt: Yes, that’s correct.

Meanwhile, it remains to be seen whether the Bar will take the next logical step and amend its complain in light of Roy Cooper’s unequivocal statement that the players were innocent, and no evidence existed (apart from an accuser’s myriad, mutually contradictory stories) to justify the charges.

Rule 3.8(a) of the North Carolina State Bar Rules of Professional Conduct states that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The burden of proof under Rule 3.8(a) is high. But the wording of the rule—“refrain from prosecuting”—makes clear that it applies not merely to the decision to indict, but the decision to continue prosecuting a case. Regardless of what Nifong may or may not have believed on April 17, then, Cooper’s remarks left little doubt that Nifong was in violation of this rule by the time he recused himself from the lacrosse case.

6.) Atmosphere

I last saw Nifong in person on December 15; he looked much different yesterday. Considerably thinner, pale, and gaunt, he spent most of the hearing frowning, with his hands clasped, staring straight ahead, with his eyes rapidly blinking in an occasional nervous tic (he displayed similar behavior in the December hearing). The arrogance, bluster, and false bravado had dissipated.

Reporters included the N&O’s Anne Blythe, Duff Wilson from the Times, the AP’s Aaron Beard, and the local TV stations.

And, in what was the most bizarre event of the case for me personally, on my way out, I found myself crowded in an elevator right next to Victoria (“burn the house down”) Peterson, Mike Nifong’s citizens’ committee co-chair. Peterson (who has never spoken to me before), looked me straight in the eye and asked, “Are you Jackie Brown’s husband?”

I’m usually at least somewhat competent in responding to questions. But I admit that I could come up with no quick-witted reply to this one . . .

96 comments:

Anonymous said...

Totally off-point, but you know what, before there was Nifong, there was Janet Reno. She should be every bit as disgraced as he.

http://www.opinionjournal.com/medialog/?id=105001974

Joe T. said...

LOL on Victoria Peterson in the elevator (but I feel bad for you squeezed next to that creature).

Anonymous said...

Aftr watching Nifong today, reading the strange apology, and witnessing his lawyers' poor performance, I question Nifong's stability at this time. I wonder if he can get through it.

Anonymous said...

Where this idiot Witt goes wrong with respect to the disclosures is simple. The information that has to be disclosed is provided by law, the "when" of the disclosure is that it must be done "timely".

Anonymous said...

Thanks "Mr. Brown" !

Anonymous said...

KC,

I want to thank you for this website and your insightful analysis on the events in Durham - your efforts have opened the eyes of others like me who are not as educated on the law to the extent you are.

I'm sure that with the recent events of the LAX players and the State AG dismissing the case that Nifong sees the writing on the wall (i.e. civil suits and possible jail time for his misconduct). But I also see not just the three accused LAX players, but other members of the LAX team lawyering up and looking for justice from the other "players" in this situation (Durham PD, DA's Office, City/county government, Duke University and possibly the Gang of 88) for the hell that they were subjected to. My question is this - could the local press and the NYT also be subjected to a civil suit for their actions, or would they be protected by the First Amendment?

luke said...

“Are you Jackie Brown’s husband?”

What???? Jackie Brown could be your mom.

Anonymous said...

in answer to the question how about
"No,are you?"

Jim said...

K.C.,

Having been mistaken, several times for someone else's husband, I finally found the right response: "It would be an honor, but sadly I am not." It's also the response a man who wears bow ties would make. Thanks for the update.

Anonymous said...

You could have said: Yes, I'm James Brown, and I feel good!

Anonymous said...

KC-
If Nifong resigned do you think the Bar would let him keep his license?

Anonymous said...

Yes, the newspapers could be found guilty of libel. The families would need excellent attorneys, but the cases could be won.

Chicago said...

KC-Rumors are flying that you and Victoria "shared a moment" in that elevator? True? She wanted to make sure you were single first, she didn't want to steal Jackie's man! ;)

(joking of course)

Anonymous said...

JLS says....,

Thanks for giving us a sense of being at the hearing. I think it does give us a sense of how the actual hearing will go too.

Joe T. said...

Hey Chicago: LOL. It's nice that we're at the point in this case where the 3 guys are beyond the most malevolent danger, and we can make jokes without guilt.

Gary Packwood said...

K.C.
Thanks for maintaining the mind numbing schedule with your teaching, academic duties and late air flights.
I appreciate learning all that you are teaching here.
The Duke Lacrosse situation is not over by a long shot!
GP

Anonymous said...

I am still laughing at the medieval line.

Anonymous said...

... he spent most of the hearing frowning, with his hands clasped, staring straight ahead, with his eyes rapidly blinking in an occasional nervous tic

Just speculation, of course, but a nervous facial tic is sometimes refered to as "Tardive Dyskinesia" which is a very common side effect from taking anti-depressants and anti-anxiety medication.

I almost feel sorry for the guy but then I quickly remember how, if he had his way, three completely innocent college students would be serving 30 years in prison.

Tardive dyskinesia is a syndrome caused by the use of drugs generally prescribed for psychiatric and neurological disorders. Tardive dyskinesia is characterized by repetitive, involuntary, purposeless movements. Features of the disorder may include grimacing, tongue protrusion, lip smacking, puckering and pursing, and rapid eye blinking.

Anonymous said...

"Hey Chicago: LOL. It's nice that we're at the point in this case where the 3 guys are beyond the most malevolent danger, and we can make jokes without guilt".

Yes, even if they are really bad "jokes".

Anonymous said...

2:01am-

Does a Sh*t eating grin fall into any of drug characterizations?

Anonymous said...

Williamson was very impressive - as much as John Roberts and Alitia - that is saying a lot. Brad, Jim, Joe and the rest have restored my faith in lawyers.

hman said...

I know it isn't like real life for this to happen, but wouldn't it be a fine thing if individuals who became prosecutors had experienced at some point just what it feels like to be an innocent person sitting in the defendants chair?
I mean, sitting there acutely aware of the whole power of the state coming down on your head and the only thing you have to hope for is that a few words like "innocent until proven guilty" or "due process" will be taken seriously in the proceedings.

wayne fontes said...

To KC

You have offered a lot of legal analysis in your commentary. Even with the large number of lawyers who read this blog it seems to have stood up rather well. Did you have some assistance in this area?

GS said...

Watching Nifong, who I think is evil, I laugh let him spend his money on the indefensible.

bill anderson said...

Just speculation, of course, but a nervous facial tic is sometimes refered to as "Tardive Dyskinesia" which is a very common side effect from taking anti-depressants and anti-anxiety medication.

If it is T-D, the condition is irreversible. It will be interesting to see what happens. Nifong now is beginning to understand the gravity of the situation he faces, and the realization that Rae Evans was right.

I think K.C. makes a very, very important point: lawyers matter. As bad as the evidence was the power of the state to control charges is such that the declaration of innocence here was no slam-dunk. That is not because Nifong had a real case; he did not, but the government gave him the power to pretend he had one, and given the right set of circumstances, he could have railroaded these guys into prison.

Thus, I DO NOT feel a lick sorry for him. He brought this situation on himself.

One of the black "commentators" on this board last year declared that the three accused "did the crime, and must do the time." That was a lie, but now I do think it refers to Nifong. He did the crime, and he must do the time.

psych said...

I have to add something. Tardive dyskinesia is not a common side effect of antidepressants. It is not a common side effect of second generation antipsychotic medications. The second generation antipsychotic medications are the ones that are generally prescribed today. I wanted to say that so that people will not be afraid to take needed psychiatric medications.

Overall that would be a lot more damaging. And yes, tardive dyskinesia can be more or less permanent. When I was a resident I was taught that it was one of the most common reasons a psychiatrist could be sued for malpractice.

ChiLois said...

This is from Cooper and is up at 60 minutes for Sunday:
http://www.cbsnews.com/stories/2007/04/11/60minutes/main2673456.shtml

hman said...

When you hear the sound of hoof-beats outside your tent, where I live, it is most likely a herd of horses although it is possible that it is actually a herd of zebras.
In regard to Nifongs facial tic, the horse analogy would be that he has always one that when felt stressed (this can be checked) and that he is feeling stressed nowadays to a whole new level.
The zebra analogy would be anything else.
Facial tics with stress are common. T D from anti depressants these days is not.

Anonymous said...

KC, I think you make very insightful comments and I am in agreement for most of your commentary. However, sometimes I feel there is a bit of overzealousness. I think it is unfair to attack a lawyer for a losing battle (Nifong's case) and compare it to the outstanding job of lawyers who fought a winning battle. I think there is a reason why Freedman did not try the case himself. It's a losing case and you can make only make so many arguments trying to defend someone. Trying to be an aspiring lawyer, I think some of your attacks are unfair. I don't think you should outright attack everyone who is on the other side. Having said that, I do hope Nifong is ultimately disbarred.

james conrad said...

i think, at a minimum, nifong loses his license however, if the state of north carolina wishes to restore credibility back to the judicial process its almost got to file criminal charges against nifong. his abuses of state police power were so outrageous that no amount of civil damages will cover, the nation will be watching

Anonymous said...

As a lawyer, I should add the important point that EVERYONE (even Mr. Nifong) is entitled to legal representation. One of the reasons that this is fundamentally important is that this helps to ensure that the defendant DOES get the benefit of due process and both procedural and substantive protections.

(I should add that none of the above should be taken as defending Mr. Nifong's conduct.)

Anonymous said...

FYI (and marginally off-topic):

Here's today's take on Nifong and the case from the former (he was chashiered by Ashley and Paxton right after the '05 buyout) political cartoonist, now working in Scranton, PA:

cole.thetimes-tribune.com

Hard to imagine anything like this appearing the local paper nowadays.

Anonymous said...

"Meanwhile, it remains to be seen whether the Bar will take the next logical step and amend its complain in light of Roy Cooper’s unequivocal statement that the players were innocent, and no evidence existed (apart from an accuser’s myriad, mutually contradictory stories) to justify the charges."

To the various lawyers out there. What would that do to the current schedule? Would amending more charges push back the June hearing? If so, is that prudent?

Anonymous said...

Witt and Freedman: Dumb and Dumber.
Nifong: Dumbest

Anonymous said...

A few questions:
1)Who is Jackie Brown?
2)Has Fred Black made a public comment?
3)If Nifong committed suicide before being disbarred, would his wife be entitled to his pension?(probably best chance of salvaging his pension).

AMac said...

John Cole's cartoon (link for 8:50am comment).

Anonymous said...

If only Durham had investigate reporters (or newspapers), they would be investigating what these various "community activists" have been doing before Duke Hoax. I'd bet anything that their election "activities" (ACORN activists?) would be interesting.

Didn't some of Gang 88 get caught using Duke funds for some anti-Bush ads before the election?

Anonymous said...

How can he actually work on his other 'cases'. Anything he does will be suspect. Surely there is a procedure such as impeachment available.

Gary Packwood said...

Psych 6:38 said...
...I have to add something. Tardive dyskinesia is not a common side effect of antidepressants.
::
Thank You. Stick around. You are needed.
::
GP

Anonymous said...

Nifong is history. I think this board should spend a bit of time looking at future of G88 etal.

Anonymous said...

KC lists three MSMs that were in the courtroom for Friday's hearing. Their superficial, he-said-she-said accounts provide a dramatic contrast to KC's thorough reporting and analysis.

This is why we read blogs.

http://www.newsobserver.com/1185/story/563946.html

http://www.nytimes.com/2007/04/14/us/14duke.html

http://www.nytimes.com/aponline/us/AP-Duke-Lacrosse-Nifong.html?_r=1&oref=slogin

Gary Packwood said...

Anonymous 9:23 said...
...If only Durham had investigate reporters (or newspapers), they would be investigating what these various "community activists" have been doing before Duke Hoax.
::
That is a good point. It would be helpful also to investigate the 'backlash' to the Loopy Left on campus...with respect to the athletes.
Because the Loopy Left are always selling 'sexism' ...it is not unusual for the male athletes on campus to walk out of their residence hall as a group in support of President Bush... just to annoy the Loopy Left.
They stand together in a large circle around the American flag with candles in hand...which of course ...drip wax on the sidewalk... which annoys the buildings and grounds crew.
For the next week or so, the Loopy Left (helmet hair/rimless glasses) walk past the sidewalk and 'cluck' at the mess on the sidewalk.
If the 'clucking' continues, you can ANTICIPATE that the guys will schedule some event having to do with PMS... which has to be diverted..quickly.
Of course, the Broadhead group does not anticipate any of this.
Anyone have any examples from campus?
It is never boring!

gp

Anonymous said...

In re Attorney C, 47 P.3d 1167 (Colo. 2002).

For anyone who cares.

Anonymous said...

I forgot to add:

In re C was also not followed by a later federal case, so Nifong may have some defense.

U.S. v. Acosta, 357 F.Supp.2d 1228 (D. Nev. 2005).

Anonymous said...

I have some sympathy for the claim that Nifong should not be punished for violation of a rule that is too vague to be understood. A requirement to disclose "timely" seems to be just such a rule, and the existence of a Colorado case is irrelevant. The Colorado case did not interpret North Carolina rules, and a Colorado case is hardly binding in a North Carolina matter.

Anonymous said...

Re: Freedman
My husband, a lawyer, said that lawyers who represent clients like Nifong, accused of malfeasance of some sort, know that they have clients against whom there is already a preponderance of inculpatory evidence. They are the St. Judes of the profession, willing to take on lost causes, in hopes of minimizing the damage.

Anonymous said...

You could have said, "No, I'm not. Are you Nifong's wife?"

Great job with your live blogging, analysis and the months of giving us so much more than anyone in msm!! Can't wait for the book!

duke2009mom

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Anonymous said...

I watched the live feed of the hearing, and Witt seemed to be very nervous and inexperienced. Since the motion was basically a throw-away (everybody knew it would be denied), maybe Freedman was just using the hearing to give Witt some more experience. (Of course, a more uncharitable explanation could be that Freedman knows the entire case is a loser and he doesn't want to be the one standing in front of tv cameras making ludicrous arguments and looking like a fool).

As the camera zoomed in for a close-up of Nifong, I noticed that he seemed to be blinking and twitching and swallowing a lot. I almost started to feel sorry for him, but then I remembered those other, earlier hearings in which he was smirking and giggling and rolling his eyes, and my sympathy quickly evaporated.

Jay said...

To succeed in a defamation case against The New York Times, plaintiffs would have to show that the paper acted with "actual malice". This is the standard the U.S. Supreme Court created in the landamark 1964 case New York Times v. Sullivan, 376 U.S. 254. It's, as it should be, a very tough standard. Wilson was so bad, maybe they would win; but I doubt it.

Nifong's hat trick said...

How about; "No, I'm Nifong's nemesis, nice to meet you."

Anonymous said...

10:41

I can't imagine a rational person believing that withholding material, exculpatory evidence for 6 1/2 months could be construed as TIMELY. He had this exculpatory DNA information before Dave Evans was indicted, he had it throughout every motion to compel discovery and every hearing that was held.

He lied about its existance and failed to turn it over until the final, far reaching motion was granted for the underlying data and then he did a data dump. He has NEVER provided a summary report of the DNA tests as required by NC law.

He's a pig. To find out that, according to todays N&O, he did it all to get a bigger pension makes him even more contemptible.

Barney Fife said...

Anon 2:01 said ... a nervous facial tic is sometimes refered to as "Tardive Dyskinesia" which is a very common side effect from taking...

We have to remember that any stupid idiot can google and post misleading crap.

The most likely explanation for the body language of Nifong and his legal team is they are not being truthful.

Nifong's hat trick said...

Anon 10:41a
Throughout this case I had nothing but bad thoughts about Nifong. He railroaded these innocent young men and robbed them of a time in their lives they can never get back. Nifong is vile and at the least should never be allowed to practice law again, but, I would have to agree with you that if there is so much legal banter back and forth about the interpretation of the the rules Nifong violated, then something is wrong with the law. Is it not clear enough? Is it too easy to circumvent? Is it too easy to ignore? Had Nifong ever prosecuted a rape case before? Did he know the rules and clearly understand them? Just because he is a prosecutor doesn't mean he's a good one (obviously) or an intelligent one or that he is knowledgeable of ALL of NC's laws, etc.
I don't feel sorry for him though, because deep down inside he knew these boys were innocent and he attempted to hide some very crucial evidence that proved just that. He is a vile snake. I do believe that prosecutors deserve a certain level of protection so that they can do their often difficult jobs, but like the defense team said, the AG said and the 3 innocent Duke LAX players all said, there needs to be a reform of the law so that prosecutorial misconduct does not go unchecked.

Anonymous said...

Lord, lord, lord.

Prosecutors already have ABSOLUTE immunity and a huge amount of discretion. Everyone knows that lawyers play games, word games, timing games, legal games.

Timely, while not precise, is fairly easily understood.

Mike Nifong has no excuse for failling to disclose the DNA evidence. He was not "too busy" this was his biggest case.

SIX MONTHS is not timely disclosure, when there were several motions and hearings, including an indictment during that time.

Waiting until a trial date has been set to disclose material exculpatory evidence is not acceptable.

Quite frankly, my reading of the law says Nifong doesn't have any discretion in cherry picking what is in the 'report' on scientific tests. He has to 'report' on ALL the tests. The very first 'report' should have contained all the results OR he should have done the data dump initially.

There isn't any excuse for what he did, legal or moral.

Anonymous said...

JLS says....,

1. I too wonder if it is a wise move to ammend the charges. The charges are plenty to disbar Nifong which is the most the bar can do.

2. While there is some wiggle room as to the meaning of "timely." There is NO WIGGLE room on having told various judges he did not discuss the case with Meehan and had given everything he had to the defense when in fact he knew of DNA from other men found on the person of Mangum.

3. Only a lawyer could think using the power of state to corrupt both the Durham legal system and electoral system should be punished ONLY by the perp being disbarred. I wonder if you similarly think if I intentionally run you down with my car that I should only lose my drivers license?

Anonymous said...

Geraldo said Al Sharpton is one the great civil rights leaders of the 21th century. WTF?? Is there some parallel universe??

michellemalkin has a nice summary:

1987: Sharpton spreads the incendiary Tawana Brawley hoax, insisting heatedly that a 15-year-old black girl was abducted, raped, and smeared with feces by a group of white men. He singles out Steve Pagones, a young prosecutor. Pagones is wholly innocent -- the crime never occurred -- but Sharpton taunts him: "If we're lying, sue us, so we can . . . prove you did it." Pagones does sue, and eventually wins a $345,000 verdict for defamation. To this day, Sharpton refuses to recant his unspeakable slander or to apologize for his role in the odious affair.

1991: A Hasidic Jewish driver in Brooklyn's Crown Heights section accidentally kills Gavin Cato, a 7-year-old black child, and antisemitic riots erupt. Sharpton races to pour gasoline on the fire. At Gavin's funeral he rails against the "diamond merchants" -- code for Jews -- with "the blood of innocent babies" on their hands. He mobilizes hundreds of demonstrators to march through the Jewish neighborhood, chanting, "No justice, no peace." A rabbinical student, Yankel Rosenbaum, is surrounded by a mob shouting "Kill the Jews!" and stabbed to death.

1995: When the United House of Prayer, a large black landlord in Harlem, raises the rent on Freddy's Fashion Mart, Freddy's white Jewish owner is forced to raise the rent on his subtenant, a black-owned music store. A landlord-tenant dispute ensues; Sharpton uses it to incite racial hatred. "We will not stand by," he warns malignantly, "and allow them to move this brother so that some white interloper can expand his business." Sharpton's National Action Network sets up picket lines; customers going into Freddy's are spat on and cursed as "traitors" and "Uncle Toms." Some protesters shout, "Burn down the Jew store!" and simulate striking a match. "We're going to see that this cracker suffers," says Sharpton's colleague Morris Powell. On Dec. 8, one of the protesters bursts into Freddy's, shoots four employees point-blank, then sets the store on fire. Seven employees die in the inferno.

If Sharpton were a white skinhead, he would be a political leper, spurned everywhere but the fringe. But far from being spurned, he is shown much deference. Democrats embrace him. Politicians court him. And journalists report on his comings and goings while politely sidestepping his career as a hatemongering racial hustler.

Anonymous said...

It's also worth remembering and maybe even digging out Nifong's public statements on the DNA evidence.

I distinctly remember at one point he made a statement that alluded to the fact that the defense was only releasing part of the DNA evidence that was beneficial to their clients and that there was other evidence they hadn't made public.

I think we all know now for a FACT this was another lie. The defense team did not distort or mislead anybody on any DNA results.

Its true they didnt' release all the DNA evidence since at the time he made that statement he STILL had not turned over the test results showing the presence of DNA from 4-5 other men.

Anonymous said...

Also wondering how the date on which Crystal accused Dave Evans matches up with the actual date that his DNA was found in the garbage can and on the towel.

Is it possible they coached her to ID Dave Evans AFTER they knew they had recovered his DNA???????????????????????????

Or is that too much even for Nifong and his DPD henchmen?

Gary Packwood said...

Anonymous 12:02 said...
...Geraldo said Al Sharpton is one the great civil rights leaders of the 21th century. WTF?? Is there some parallel universe??
::
YES! That is the problem and it takes he courts to say NO MORE!
::
GP

HumboldtBlue said...

"Witt was engaged in “almost a medieval scholastic argument to argue is there a constitutional violation if there’s no trial?”"

What a fantastic line. Hell Professor, I think those boys should be thrown in the lake, and if they bob to the sruface, well hell, we'll know they're guilty. I'm pretty sure the 88 would agree, maybe even grab their pitchforks again and gather to slay the monster.

Anonymous said...

I didn't know before today that Nifond was a "conscientious objector" during Vietnam. That may be irrelevant but it struck me as interesting.

Zimri said...

"He ain't Mr Brown he's a baad mutha -"
shut your mouth!
"I'm talkin' bout KC!"

Anonymous said...

Parallel Universes:
(partly hypothetical)

A young woman is raped,
and the defense lawyer
for the accused says:
"She brought it on herself;
she was dressed inappropriately."
That is, the defendant saw
her eyes.
This happened in an Islamic
country. It has happened -
in different forms - in this
country.

People who are truly concerned
about justice usually speak up
when a victim of a crime is
accused of causing the crime
against them. They speak
up when the victim is made
responsible for the predator's
behavior.


When the victim is blamed
for their own rape, who can
blame Wendy Murphy when she
stands up for the victim?

2nd case:
3 young men are wrongfully
accused, but are found "completely
innocent." Now, it seems, the
accused have become the victims
of a cruel injustice.

So where is Wendy Murphy when
the real victims of this kind
of case are continually demonized,
and where are people like
Terry Moran of ABC, and Georgia-
the-talking-head turn the actual
victims in the case into
unsympathetic slobs who deserved
the legal rape they received
at the hands of a corrupt
system, a power-mad prosecutor,
with investigators who lied
and judges who enabled?

Where are the people who claim to
defend the victims of actual
crimes? Real-life victims?

Where are the Nancy Graces, the
Wendy Murphys?

Are they supportive of the victims?
No! They're leading the chants
against them! Where is the
support of the 88s for the
people who have been wrongly
accused, when the 88s might
otherwise cheer programs like
Project Innocence?

I guess there is such a thing,
in some small minds, as "selective
innocence."

Mac

Anonymous said...

Wendy Murphy has made a fool of herself in this case. I am a huge advocate for rape victims, but I saw this case for the sham it was early on.

Georgia Goslee is a racist, she is never going to admit that this case was a lie, she's going to listen to her 'little voice' though I hold out a SLIM hope that after Cooper's 60 minutes interview, detailing another totally different story by Crystal and reading the AG's report, Georgia may finally admit the white DA took advantage of the drugged up black stripper.

Nancy Grace hates to be wrong, thats why she stopped covering the Duke rape case when it become clear they boys were innocent and why she had the night off when they were finally exonerated.

Anonymous said...

I'd like to focus on the bar's point yesterday about plea bargains. The context for it arising was that, if evidence disclosure isn't required until a trial date is set, the 95 percent of cases that are resolved through plea agreement would never benefit from the open discovery requirement.
Readers of this blog are familiar with this argument, as it has been raised here a number of times.

The reason this issue interests me is that I wonder very much whether Nifong's key miscalculation in pursuing the.LAX case was assuming that he could force a plea bargain. His experience told him that the raw probability was 95 percent that he could negotiate a plea. His limited experience with the occassional Duke/UNC student brought up on drug charges or DWI probably gave him even more good reason for believing that such people, who have promising futures, are eager to minimize downside risk of the court process and "get the case behind them" by negotiating a plea.

Now that the lawyers and players can talk freely, I hope that KC will ask them about whether Nifong tried to initiate plea negotiations. In my imagination, he sat by the phone for months after chaging them, waiting for it to ring with Cheshire and co.on the other end proposing a guilty plea to a single count of lewd conduct, or some similar minor sex crime. When no call ever came, I imagine that Nifong finally called them proposing a plea. When Cheshire responded with his characteristic eloquence, perhaps quoting George Bush Sr's response to Iraq invading Kuwait, "This shall not stand," then it may have begun to dawn on on Nifong that he had no way out.

I've worked in politics, including as a fairly high level elected official, and my experience was always that corrupt officials never expect others to refuse an unprincipled deal that saves their skin. In fact, my experience is that responding with "No deal, ever" is a highly effective tactical move, if for no other reason, because it so completely surprises unprincipled political actors.

I know that KC has to save some juicy stuff for the book, but I really hope he'll offer us some information here about what Nifong tried to do regarding a plea.

bill anderson said...

To succeed in a defamation case against The New York Times, plaintiffs would have to show that the paper acted with "actual malice". This is the standard the U.S. Supreme Court created in the landamark 1964 case New York Times v. Sullivan, 376 U.S. 254. It's, as it should be, a very tough standard. Wilson was so bad, maybe they would win; but I doubt it.

Apr 14, 2007 11:03:00 AM


This is partially true. If the plaintiff is a (1) public official or public employee, or (2) a "public figure," then the "Times Malice" standard holds.

However, Collin, Reade, and David are not public figures by any stretch of the imagination. If SCOTUS held in 1974 that Elmer Gertz was not a "public figure," then I can guarantee you that these three young men do not fall into that "public figure" category.

Yes, they became famous, but they became famous because of the coverage the case received, not because they were famous already. There is a difference.

If the standard is lower, then the state libel laws hold as they are written.

By the way, one chapter in my doctoral dissertation dealt with the Times-Gertz decisions, and I am familiar with how the courts operate in this situation.

As Cooney said on Wednesday, the families are not suing the Hurled-Scum, and I doubt they are suing any other news organizations. (I would love to see Nancy Grace and Wendy Murphy sued, but that is not my call.)

We are dealing with resource issues. There are better pickings with the City of Durham, Duke University, and Duke University Hospital. (Tara Levicy truly overstepped her legal bounds if she was the "blunt force trauma" source for Duff Wilson, and Duke University Hospital is her employer -- called vicarious liability.)

My guess is that the attorneys realize that suing the news organizations would be a popular thing to do, but even under regular state laws, it would be very hard to win. Furthermore, even if they won libel judgments at the trial level, appellate courts are much more likely to overturn libel judgments in the wake of the public official/public figure decisions.

Anonymous said...

There was no libel, get over it. The media treated them shabbily and rushed to judgement. It has happened countless times before. They stood accused of rape and kidnapping. It is not illegal to make a judgement of guilt.

The SANE nurse did nothing wrong. Stop trying to crucify people who did their jobs. She saw blunt force trauma consistent with a possible rape, that's what she reported. Had she gotten on the stand and been asked if it could have come from prior consensual sex or the dildo Crystal used on herself she would have said yes.

Anonymous said...

Thanks, 12:45 and Bill Anderson!
Great posts!

Your clarifications on the subjects of why-it-might-have-happened and where-does-it-all-
go-now are some of the best
comments yet.

Mac

Anonymous said...

KC:

I think you're being a little hard on Witt. Look, you can review my prior posts and easily determine that I am no Nifong fan.

However, I've been in Witt's shoes many times as a criminal defense attorney. Sometimes its next to impossible to come up with something to say on behalf of your client. And this is clearly one of those times.

This case was so clearly over the top that Witt and Friedman are left with very little to work with. But, I can't fault them for trying. Its their job.

Can you think of any better arguments to defend this scoundrel??? I sure can't. I think they've done a magnificent job standing up there with a straight face. Its more than Nifong deserves.

These guys are just doing their jobs. And unlike Nifong, I believe that everyone deserves representation.

WINDBAG

Anonymous said...

I believe everyone deserves representation, but sometimes defense attorneys really strain credibility, like arguing that you can't have your constitutional rights violated by a prosecutor unless there has been a trial. Good, god, did they think any legal bar in the country would condone such an argument?

Anonymous said...

1:32:

I couldn't agree with you more. When I'm in this position I refer to that type of argument as the "kitchen sink" as in throw everything in including the kitchen sink.

its not a great argument. in fact, its a bad argument as the state bar counsel showed with much more style than they usually show. however, nifong isn't willing to admit that he did something horrible and he's hired these guys to make an argument on his behalf. he's not paying them to stand up there and shrug.

its a tough job.

WINDBAG

Anonymous said...

This is why criminal defense attorneys are almost universally despised. I generally despise them because I know they look at the law as a game to be won or lost, they are trained NOT to care about guilt, guilt is irrelevant. I can't honestly say I would want to associate with someone who, for example, spent his career brow beating rape victims and discrediting childrem who were abused. And, yes, I know everyone is entitled to a defense. I think the ethics rules for defense lawyers have been loosened to the point of being meaningless, unless you know for a fact you are suborning perjury, you can float any kind of asinine theory, blame any innocent person as the 'real' killer or drag the victim through the mudd.

Anonymous said...

JLS says....,

re: anon 12:45

I doubt Nifong ever wanted to plea this case out for the following reasons:

1. He needed to keep this case going through the election. He was worried he might lose, if he dropped the charges or made a favorable plea offer prior to the November election.

2. After the November election this case was as Sowell described it a tiger Nifong was riding that was too dangerous for him to get off of, as we have seen.

I do think there was a time in say June that Nifong could have dropped the charges saying he believed Mangum but the case was unwinnable. He had won the primary. No November opposition would have arisen had he dropped the charges in June and he would have avoided all of this. I think I even said this at the time, but alas Nifong was too stupid.

Anonymous said...

I am no genius and I have never known any of the parties in this case. I did "know" within a week after I heard about it a year ago that it was baloney.
What a waste.

Gary Packwood said...

Anonymous 12:45 said...
...I've worked in politics, including as a fairly high level elected official, and my experience was always that corrupt officials never expect others to refuse an unprincipled deal that saves their skin. In fact, my experience is that responding with "No deal, ever" is a highly effective tactical move, if for no other reason, because it so completely surprises unprincipled political actors.
:: Great reasoning.
Would it be possible that Nifong was told early on that more evidence would be available than he actually received?
::
GP

Anonymous said...

I've tried to figure out what Nifong's end game was. I thought for a long time he never intended to take the case to trial and was going to back out and blame it on the defense for making Crystal change her mind about prosecuting.

However, as time went on, I started to think that he really believed he could seat a jury so racist they would convict the boys.

This case has made me believe that blacks are more racist than whites, but I have a hard time believing even an all black jury would have convicted after hearing all of this nuts stories and am pretty sure they would have been treated to her inventing things on the stand ad hoc.

Nifong is arrogant AND dumb, a deadly combination, just ask Bush.

Anonymous said...

Regarding the prospects for suing Nancy Grace and Wendy Murphy, a few comments. The presumption of innocence holds only inside the courtroom, nowhere else. This meams that a lawsuit against Nancy Grace will probably fail. Grace can say on her show, "The Duke players are guilty," and be protected by the First Amendment.

I have seen Grace say on her show, "The First Amendment says I can proclaim the defendant guilty."

Anonymous said...

I don't despise defense attorneys at all - When you need one, nothing else will do - Witt and Freeman are at a tremendous disadvantage - their client did it and there is video and documents to prove it. The boys defense team has given me new respect for lawyers. I agree that Nurse Tara is a small player in this drama. Blunt force trauma includes redness, swelling, abrasion, contusions - maybe some bleeding if an open wound - Gottleib made this all up. Anxious to hear his what he has to say.

Anonymous said...

JLS say...,

Nifong is arrogant AND dumb, a deadly combination, just ask Bush.

You have an excellent point that during the G.W. Bush presidency he has had to deal with some arrogant people and really some who are among the dumbest politicians in American history, but why interject Pelosi, Reid and that walking rock Algore into this?

Anonymous said...

To JLS,

12:45 here again.

You raise some important points to think about, and of course the facts will out over time regarding what happened with plea offers.

Nevertheless, I still think that Nifong initially though that he could get a plea at a time of his convenience, presumably after the primary. Remember, Durham is a Democratic hegemony locale. Whenever there is one dominant party like this, the primary is the de facto election. At the point that he plotted a strategy early on, he had no way of knowing about the controversy that the case would engender, which in turn caused the creation of the recall-Nifong movement that made the November election a real race.

I still think it likely that Nifong thought for a long time that he could plead out the case at a time of his own choosing.

Anonymous said...

I don't. They boys were never arguing consensual sex, they were arguing no sex. If your premise is that no sexual contact occured and there is no proof that sexual contact occured, for what reason would you plea?

Nifong might have thought he could get a plea BEFORE he got the DNA results, but I don't think he realistically could have believed that this defense team would ever accept any kind of plea. He also never charged them with anything they might have pled to, like drinking or disturbing the peace. Don't think so.

Anonymous said...

"I have some sympathy for the claim that Nifong should not be punished for violation of a rule that is too vague to be understood. A requirement to disclose "timely" seems to be just such a rule".

Your sympathy is misplaced. No matter how broadly and generously (to the prosecution) "timely" is defined, Nifong's treatment of the exculpatory evidence wasn't "timely". This is a blatant case of the suppression of evidence. "Timely" is a canard.

Anonymous said...

"The reason this issue interests me is that I wonder very much whether Nifong's key miscalculation in pursuing the.LAX case was assuming that he could force a plea bargain. His experience told him that the raw probability was 95 percent that he could negotiate a plea".

This point is very well-taken. It seems very plausible. Tragically, Nifong would have gotten away with it if the accused were not well-off. By NOT taking a plea offer (assuming one was made), they were able to buy time for the case to fall apart. But that would have been a rare exception. I wonder how many people Nifong (and not just Nifong) has "sent down" by forcing a plea while witholding exculpatory evidence. It is chilling to think about. I wonder what kind of ethics training (don't laugh) prosecutors get. THe banana republic of the United States.

Anonymous said...

JLS says:

re: anon 2:25[12:45] and 2:28

Certainly another of Nifong's errors imagining this was a typical case. In a typical case a prosecutor has a defendant with a prior criminal record, limited resources and a limited future. Such people have every incentive to deal out a major charge like this rather than risk losing and doing serious time.

The former defendants in this case on the other hand had access to lots of resources, basically spotless records and promising futures. I don't know what Nifong imagined, but they were not good prospects to plea.

But this does not really matter as 2:25 was discussing what Nifong thought and he may have thought he could plea this case out whenever he wanted by making an offer too good to refuse.

I can see a number of thought processes on Nifong's part and like Mangum he might believe one today regardless of what he was thinking at the time:

1. The defendants were guilty and he was doing justice. [I think the AG killed this one this week.]

2. He would use these kids to get elected and after the election just drop the charges or plea them out for some trivial charge like underage drinking. Of course the case became too hot to do this.

3. He would get a conviction of these kids because he could. He is afterall the great Nifong who is god in Durham.

4. He particularly dislikes Duke kids or for whatever reason he would be happy to get a conviction against some innocent defendants. Again he is the great Nifong etc.

I can not say which it is. They are all terrible tought even the first one because there was no reason to believe Mangum.

Anonymous said...

Nifong appears to be an
odd collection of personalities:
Inspector Javert, of Les Miserables
infamy, combined with the bumbling
Inspector Clouseau, and the hated
Haman, the villain in the Book of
Esther, who eventually is hanged
on the same gallows he had made
for Mordecai to hang upon.
(Fitting parallel, that.)

Other characters come to mind,
but these seem to fill the hole.

Mac

Anonymous said...

Barney Fife?
I didn't know that Bob Ashley is now posting on this blog.

Anonymous said...

3:56

Barney was nice, though
overzealous and dumb.
Somewhat of a sympathetic
character.

Remind me of who Bob Ashley
is, and who you're comparing him
to?

Mac

Anonymous said...

Anon. 3:56

Oops.
Sorry, I read the
Barney Fife rip hours
ago, and forgot.
I thought you were
adding to the character-
description of Javert -
I mean, NoFang.

No sides taken, in this case.
Still don't know who Bob Ashley
is. Pardon my ignorance.

Mac

Anonymous said...

"I have some sympathy for the claim that Nifong should not be punished for violation of a rule that is too vague to be understood. A requirement to disclose "timely" seems to be just such a rule".

Not only was Mr. Nifong bound to disclose in a "timely" fashion under the rules of ethics, he was bound by North Carolina statute to disclose the results of a "nontestimonial order" (the DNA tests in this case) "as soon as the report is available." This is according to the State Bar Attorney Jean at the hearing yesterday. There are at least three to four different ways in which Mr. Nifong was obligated to turn over the DNA test results in a timely (and even as soon as available) manner and in a form readily understandable--constitutionally, statutorily, and ethically. I, too, am very sensitive to ambiguous rules being applied in a harsh manner resulting in extremely dire consequences for the person to whom they are applied. Mr. Nifong's conduct, however, violated enough rules to stir the State Bar into almost unprecedented action. The complete lack of controlling precedent and little guidance from other jurisdictions speaks to the unusual nature of the State Bar's filing of charges mid- case. Mr. Nifong's behavior should (and did in this case) make legal hearts pound, stomachs churn, and heads spin. I believe the State Bar is very much on legal terra firma here.

Observer

Anonymous said...

By the way Freda Black has made public comment since Mr. Cooper's announcement, and it was (not surprisingly) very critical of Mr. Nifong...it's probably in the N&O--sorry I do not have a link.

I believe Mr. Ashley is with the disgraced Herald-Sun--maybe the editor-in-chief??

Observer

Anonymous said...

Bob Ashley is the editor of the Herald Sun and is responsible for all that has been allowed to be printed on their editorial pages. As everyone knows they have supported Nifong right up until just yesterday.
He looks like Don Knotts/Barney Fife.
Although, I hate to compare such a lowlife dumbass to poor old Barney. Barney was a nice little fellow.

Anonymous said...

I hate to bring this up at such a moment, but what about the other people Nifong has prosecuted? Presumably, some are in prison - and some of those are most likely innocent.
Does anybody think he was an honest prosecutor until last year and then went bad all of a sudden?

Is anyone going to launch a review of his prior pro(per)secutions?

Anonymous said...

6:17

re Nifong's track record

My guess is he went bad to get elected, but at this juncture we can presume nothing. All his cases should be reviewed: he's damaged goods.

Polanski

Anonymous said...

12:25 PM - he's a Quaker! Hope he can find work putting oats into cardboard boxes.

Anonymous said...

Reno "Nifonged" people before he knew how, but he was a quick learner in political ambitions. Let's just be thankful he will not be going to Washington as TOP AG! :)

PAIN for political GAIN
these guys destroy famlies