A few days after the Attorney General dismissed all charges and declared the players innocent, the
Coleman opened the discussion, correctly summarizing the case: “This was a wrongful conviction reality case, played out in real time.” As such, he argued, people could learn from wrongful conviction cases, especially “the tone that’s set at the beginning of the cases . . . If the police and the prosecutors set out with a single focus, that dictates what happens.” This is what Nifong did in this case—“basically, he took over control of the investigation and then proceeded to obtain evidence to support his conclusions.”
Two extraordinary things ensured the case did not get to trial—and, Coleman suspected (and I agree), getting to trial was really Nifong’s goal:
1) The Bar filed charges in the middle of the case;
2) The AG then took over the case and exonerated the students.
“You couldn’t have written a script with that as the conclusion,” since a trial would have left open the question forever whether they were innocent. But the AG’s report “removed any question of that”—“for most people, it settled the question.”
As he did in January, Coleman made clear that his interest was in procedure, not the identity of the suspects: “I would have been just as concerned,” he stated, “if they were North Carolina Central students, or UNC students, or if they weren’t students at all.”
“The other thing about the case: it was an opportunity to get the public concerned with how the criminal justice system works when there is a miscarriage of justice.” The unique aspect of the case, he observed was that defendants had very good counsel, and press was paying attention to what Nifong was doing. And yet even in this case—“with all of the things the students had going for them, they were still indicted, in a case where the attorney general concluded there was no probable cause.”
Coleman concluded his presentation by responding to critics of President Brodhead’s response—“people say [the University] didn’t actively support the students,” or didn’t publicly “call for these students to be exonerated.” “I think,” Coleman argued, such a stance “would have harmed their cause, not helped it.” It would have made it harder for the State Bar and AG to exonerate them—would have looked like they were bowing to pressure from Duke. Also would have played into Nifong’s political message.
“The fact that Duke was not visible in the case,” Coleman maintained, ultimately helped the students. (Indeed, an argument could be made—the defense’s change of venue motion made clear—that Duke was visible in the case, but in a wholly different way than Coleman suggested: the statements and actions of dozens of Duke professors fortified local attitudes against the lacrosse players.)
The idea briefly floated to retain Bob Bennett to coordinate a response to media pressure was “absolutely the worst thing they could do,” Coleman perceptively argued. “The students were basically left there with their lawyers to rely on the legal system”—politically, that made it possible for the Bar and AG to act as they did. To Coleman, “One of the bright spots in all of this was the statement of Reade Seligmann when this was all over” noting that he had gained awareness about how society doesn’t pay enough attention to prosecutorial misconduct and the need to ensure civil liberties for criminal defendants.
Metzloff opened his remarks by pointing out that Coleman was listed as the prime hero of the case by Jim Cooney at the defense press conference, recognition that triggered a generous (and very well-deserved) round of applause from the audience.
The Duke law professor focused on the Nifong ethics complaint. Though not a criminal case, the DA will face a trial—the DHC will make findings of fact and conclusions of law, Nifong could appeal to North Carolina court system, and the Bar has to prove its case by “clear, convincing, and cogent evidence” (effectively between a reasonable doubt and beyond preponderance of evidence).
Nifong faces two very different elements, and may come to face a third:
1) Nifong’s pre-trial comments made in March/early April;
2) Amending of complaint—DNA, failure to turn over information, lack of candor to court.
Which of these two items more serious? #2 is more easily understood, Metzloff reasoned, but he added that the comments themselves are very serious charges. “Incredible public comments by the district attorney” were the key—though also “good questions to ask about how everyone reacted to those statements.”
Under Rule 3.6, have to prove that the lawyer made an extrajudicial statement knew would be publicly disseminated. In his opinion, Nifong clearly violated this aspect of the rule.
The Bar, Metzloff continued, has to prove that Nifong “knew or reasonably should have known” statements would be disseminated. It doesn’t have to prove Nifong’s intent—only that comments would have a “substantial likelihood” of prejudicing jury pool. Though the change of venue motion never was heard by the court, Metzloff believes that it would have been all but certain to have been adopted. “It would have been extraordinarily difficult to get a fair jury.” State Bar, therefore, should be able to prove this point.
Which comment was the worst? To Metzloff, it was the many statements presuming guilt. Rule 3.6 provides a laundry list of what a prosecutor can say—“just the facts.” Rule 3.8 is the key here—this is an easy rule for prosecutors to know. “Heighten public condemnation of the accused”—Metzloff predicted this clause will be very important in proving Bar’s case against Nifong. The pressure against lacrosse players—all of them—last spring was obvious. Why does this rule exist? The “need to avoid vigilante justice.”
Metzloff argued that Nifong’s defense—he didn’t intend to do anything wrong—seems very unlikely to help Nifong in defending his claim against the charges.
Other item: State Bar has to consider whether to amend complaint—did Nifong file charges without probable cause? This point, Metzloff perceptively noted, is “really the heart of this case—what we’ve all been agonizing over—is that fact: did Nifong have any basis for a case supported by probable cause?”
If Nifong is convicted, Metzloff predicted stern punishment, since the Bar could make a strong case here for aggravating circumstances. He cited the Joe Neff article that a Nifong victory would get him more money through pension increase and Jackie Brown’s statement that Nifong said he relished the free publicity for his primary campaign.
Darby discussed media context of the case, chiefly the question of how the media failed in relation to the question of Nifong’s ethics? She noted that for her colleagues and her at the Chronicle, the story broke on a day that “news kind of stops”—the day that the men’s basketball team lost in NCAA tournament.
It was, she recalled, “really shocking” to see national press show up, with national journalists “knocking at our door” at the Chronicle to get the facts that they had missed. She added that the Chronicle had something of an advantage: given the case pattern of Nifong news dumps on Friday afternoons—the Duke paper had the entire weekend to process the new information.
Darby noted that she’s currently in a media ethics class; and, as such, has been re-reading the Nifong comments from last spring. In her mind, the DA’s most troubling assertions were those relating to guilt, especially at the NCCU forum. “What’s most troubling to me,” she noted, “when I look at articles and publications was the lack of contextualization” about Nifong’s comments—especially in TV. In effect, this was a failure of media, which functioned almost as Nifong press secretaries. Why? Three reasons:
1) “Unfortunate trust in public officials”—most journalists exhibited a tendency to think that someone like Nifong must know something to say the things that he did.
2) The sense of competition among media—with a need to publish whatever you can whenever you can, especially on-line and TV news, where there are fewer editors asking questions.
3) The media wanted “provocative content”; as such, especially early on, the media tended to pull out extremes of Duke students in attempt to get this content.
How has coverage changed? Darby noted that current coverage was very careful to point out that AG Cooper is a Democrat running for re-election—that kind of political perspective was not frequently mentioned in the early Nifong articles.
As usual, Tigar produced a wildly entertaining and penetrating set of comments. In arguing the Gentile case, Tigar recalled, he couldn’t come across any instance where a prosecutor was disciplined for improper press conference statements. As such, he noted, sometimes defense attorneys need to use the media to respond—as he did when representing former
Nifong’s handling of the lacrosse case, Tigar noted, was a tragedy to all concerned. What legitimate victim of sexual assault would want to come forward knowing that she might be subjected to a Nifong-like public relations barrage?
To Tigar, the most significant aspect of Roy Cooper’s press conference was the AG’s proposal for be mechanism to remove prosecutors who engage in this type of behavior. Tigar noted that he had been able to do this twice in his career—including a
Judges, he noted, have always had power to sanction prosecutors under these circumstances—but rarely do so, and the media is part of the problem, since it feeds prosecutorial abuse. In the end, Tigar concluded, lawyers need to rely on the profession itself to maintain its standards.
Coleman’s remarks about the University’s response generated a good deal of attention, and so I thought I might briefly comment on them. In general, I think he’s absolutely correct: if Brodhead had come out with a statement in late March 2006 endorsing the players’ innocence or criticizing Nifong for investigating the case, such a move would have played into Nifong’s hands politically and probably would have made it more difficult for the Bar to act down the road.
Coleman’s remarks, it seems to me, spoke most powerfully to Monday morning quarterbacks who have said that Brodhead should have publicly proclaimed his faith in the players’ innocence at or near the start of the case, or taken other actions to have directly criticized Nifong in late March or early April. John Feinstein comes to mind as a figure who has criticized Brodhead from such an angle. As Coleman correctly observes, the president faced a difficult political climate, especially in the early days.
That said, for most of the case, criticism of Brodhead focused on two other, and far more sustainable, sets of issues: (1) he had a responsibility as president of Duke to publicly demand that Duke students be treated according to the same procedures as all other
The Friends of Duke summer 2006 letter—which explicitly stated that the president should not take a stance on guilt or innocence—is a good example of the first critique. (Brodhead rejected the letter with a statement including his hope for a speedy trial, which would provide an opportunity for “our students to be proved innocent.”) Brodhead’s April 5 statement (which didn’t even contain a throwaway line on presumption of innocence) and his April 20 statement following the indictments of Seligmann and Finnerty (“whatever they did is bad enough”) are common subjects of the second critique.
By the summer, Nifong had maximized the anti-Duke element of his base—it’s hard to imagine any of the 51 percent that ultimately voted against the DA would have moved over to Nifong’s side had Brodhead issued the kind of statement that FODU urged. Nor does it seem likely that a procedurally oriented statement would have distracted the State Bar—indeed, the Bar went forward even after a December statement from Brodhead that called into question the legitimacy of the remaining charges.