Sunday, June 10, 2007

Blame the Police

As we advance toward Tuesday's hearing, it's worth keeping in mind the defenses that Mike Nifong already has offered regarding his dubious behavior. Nifong attorneys David Freedman and Dudley Witt face a difficult task--while they can try to blame Dr. Brian Meehan for the DNA concealment, for instance, Meehan's behavior gives them no assistance in trying to rebut the Bar's charges of violating the rules against pre-trial publicity.

But there is one group mentioned as a scapegoat in both elements of the Nifong defense--the Durham Police Department. (This Nifong strategy makes the DPD's defense of Nifong in the Baker/Chalmers report all the more inexplicable.)

A critical element of Nifong's DNA defense appears to be that Officer Ben Himan and Sgt. Mark Gottlieb were lying in their case notes, when they stated that Nifong had attended an April 10, 2006 meeting with Dr. Meehan. The usefulness: this version of history allows him to contend that he sought indictments against Reade Seligmann and Collin Finnerty without knowing any of the Meehan test results. (This argument requires Nifong also to claim that neither Gottlieb nor Himan told him about the April 10, 2006 meeting before the grand jury session.)

Meanwhile, Nifong has tried to deflect blame for his inflammatory pre-primary publicity barrage on the DPD. His statements, he has claimed, were simply an "effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation." Translation: the DPD hadn't done its job in getting enough evidence, requiring Nifong to jumpstart the inquiry.

Moreover, Nifong has asserted, everything he said was consistent with information he received from the DPD. He made this argument most clearly regarding his speculation to the Charlotte Observer that Crystal Mangum's attackers might not have used condoms. His comments, Nifong reasoned, were "consistent with the opinion of the SANE nurse who examined [Mangum] on the night of the attack."

Yet at the time the Observer interviewed him, Nifong had never spoken to Tara Levicy, nor had he read her report (which contains nothing, in any case, to substantiate a claim that Mangum asserted condoms might not have been used). The only possible source for this false information? Again, Gottlieb and Himan, who Nifong can suggest provided him with a misleading account of Levicy's report.


Anonymous said...

On March 28, Nifong in living colr, stated "My reading of the report indicates a rape occurerd.." We all know the report was not printed until three days later or picked up until a week later. Is this a bald faced lie? I think so. The fun will be how Witt and Freedman try to defend this jerk.

Anonymous said...

How many jerks? How much corruption? How many lies? How many lives ruined by these criminals in Durham?

Anonymous said...

Wait--I'm a little confused. Didn't Nifong speculate that condoms might HAVE been used? Didn't Mangum say they had NOT?

Anonymous said...

regarding the April 10 DNA meeting, I assume Meehan also places Nifong at the meeting? from a non-lawyer/retired professor

Anonymous said...

Well, let me see if I understand all of this. I can make an assertion. The assertion can be a lie. It does not matter that the assertion is a lie because it is the truth that I have asseted, and I have made the assertion so it follows that the assertion must be true. I have spoken. I do not understand what all the fuss is about. Hey, it's Durham. What's up with that?

Anonymous said...

I want to hear about the meetings later in the Frame between Levicy, Arico and the Fong.

Anonymous said...

is this hearing going to be on cable tv?

Anonymous said...

JLS say....,

Yes I have long thought there would be no way that DPD and Nifong's interests would remain congruent once testimony began. And once they are broken apart, it will be interesting to hear what they accuse each other of. The same goes for Wilson too.

Of course Nifong could give up his law license tommorrow and try to hang on to the DA's office. I will be pretty disappointed if this hearing does come off.

Mandelbrot's Chaos said...

Well, since the NC Bar has already gutted the rest of his defense, and since he has posted that defense on the record, I don't see how this can possibly be any more successful than his other motions. My only question is if there's going to be a tailgate party outside that courthouse. If I were able to be in Durham, I'd be buying up some ribs and setting up a tent in that parking lot.

Anonymous said...

it's gonna be awesome.

Michael said...

With respect to "this is where we part ways"
relative to Nifong and the DPD :) , it would be
poetic justice to see happen exactly what
Nifong wanted to do at the very beginning:

It is absolutely clear that Nifong wanted to
get the boys in different rooms without their
lawyers -- in one room: "so and so is giving
you up right now, as we speak, so you'd
better start talking"

You know this is what he wanted to do --
so when they got lawyers, he didn't want to
talk to them anymore.

Nifong's intention are so transparent.

It would be fun to see Nifong blame the
DPD, and then the DPD blame Nifong, etc
Nifong is such a weasel, there's a good
chance this might happen.

Anonymous said...

After the DNA came back negative to the team and defendents, he said "he would not be surprised if condoms were used." He is such a dope he did not know that condoms would leave there own footprints. I don't know if he knew, Crystal had stated "no condoms."

bill anderson said...

Hey JLS,

Surely there is a "prisoners' dilemma" paper out of all this!

So, accused of lying by the bar, the Fong wheels out his strategy: Lie some more!! Of course!!

This guy never stops being entertaining, but that is a step forward, given last year he was just plan dangerous. Now we can watch him lie, and know that he knows that everyone else knows he is lying like a dog. (Please, I mean no insult to dogs.)

gs said...

Even if you believe the "I did not Know" defense (lol), Nifong knew about it before he indicted the 3rd player. Not a very good defense.

Anonymous said...

JLS says...,

re: Bill Anderson

I almost pointed out the well known prisoner's dilemma on the prior thread when someone posted somewhat in outrage that the police/Nifong wanted to separate the suspects and interview them. Of course that poster saw irony now that Nifong and the DPD might be turning on each.

Of course the police wanted to do interview Evans, Finnerty and Seligmann separately. It is standard investigative technique. It was interesting in the N&O article that the Bar has interviewed various people like the DPD investigators under oath and one would presume separately.

I did write an op ed about the prisoner's dilemma and term limits in the 1990s. I doubt there is much new here, but it is an interesting example of the dilemma.

Anonymous said...

JLS says...,

re: GS

And you will remmeber from last summer the defense attorneys requested the judge to order Nifong to read his entire discovery file.

Gary Packwood said...

Michael 6:55 said...

...It would be fun to see Nifong blame the DPD, and then the DPD blame Nifong, etc Nifong is such a weasel, there's a good chance this might happen.
And...both blame the information they received from members of the community which of course could not be thoroughly verified because they were soo oooo understaffed...and of course ...employee turnover out there in the community a ongoing challenge.

Lots of people moved away from Durham don't ya know?

Dave, Collin and Reade much think they are unpaid consulting talent for Joseph Conrad as he writes his Heart of Darkness ...chapter by chapter.

Anonymous said...

The prisoner's dilemma requires that the individuals not speak to each other, preventing the creation of a consistent story. These thugs could ruin the game and talk to each other, but then, that would be conspiracy to obstruct justice.

Both cases are interesting.

mac said...

The boys remained silent - mostly -
for a year. It's interesting that
nothing has been heard from Tara
Levicy. There's a parallel here,
I think.

Looks like KC has another angle
on that one: Levicy's statement
to the DPD was not presented to
Nifong until 3 days after he'd
already made his comments about
the report. That's what KC says.

My guess is that she was called in
repeatedly to shake her down.
(I've said this before.) Just like
they attempted with Mr. Elmostafa,
except they hadn't tried to charge

Now here's the interesting part:
if they could have threatened to
take her license away, they would
have done so, based upon their past
performance. They would have done
"an Elmostafa" on her if she
weren't cooperative, if they actually
had anything on her that could
damage her career.

Based on this logic, no one's gonna
touch her - but I'd still advise
her to have legal counsel.
(Probably does already.) The DPD
and Nifong have shown how far
they'll go, but I'd be willing to
bet that they'd do ANYTHING
to stay out of jail.

Anonymous said...

JLS says....,

Re: anon 9:07

The prisoner's dilemma also says when prisoner's are separated they have an incentive to confess regardless of whether they are guilty or not. I don't think false confessions in the case of Nifong is too big a worry.

Anonymous said...

Re your 6:37 post: I don't know what NC law is, but surely Nifong can't remain DA if he has no law license--? That would mean he could not practice law, could not appear in court, could not sign pleadings, etc.

Anonymous said...

In my mind, the question of whether or not Nifong had knowledge of the preliminary DSI test results prior to the grand jury is completely irrelevant.

Nifong was planning to seek indictments regardless of any new information the tests yielded, so it seems perfectly reasonable to me that Nifong did not attend the April 10th meeting or have contact with Gottlieb and Himan before the 17th, because it's clear that Nifong didn't care about what the tests revealed.

I'm not sure which explanation is more damning - that Nifong sought indictments against Finnerty and Seligmann knowing that the DSI tests ruled them out or that Nifong didn't know what the DSI tests revealed and still went to the grand jury. For all Nifong knew, the test results could have implicated a player other than Seligmann or Finnerty.

Anonymous said...

JLS says...,

re: anon 10:04

We discussed whether Nifong could continue as DA if disbarred a great deal on FreeRepublic threads. As I remember, the law is that he cannot.

But remember he is an attorney so he might well sue or in some other way try to keep his job. In some ways I am sympathetic to the position that a DA not need to hold a law license. DA is an administrative job. I think a nonlawyer might bring a lot to such a situation. Of course Nifong is a lawyer and would in this case just be a disbarred lawyer.

Of course Nifong trying to keep his position would put the ball back in Judge Hudson's court.

Michael said...

I think that Judge Hudson has seen the light regarding Nifong.

Anonymous said...

JLS says....,

re: michael

Maybe the Judge has seen the light and maybe not. But the Judge has been willing to break the law and not act within the required time period on a petition, really two petitions, to remove Nifong.

Now maybe you are right and Hudson has seen the light and is just spineless and willing to pass the buck to the state bar. But all the state bar can to is take away Nifongs license. Hudson could have removed him from office months ago.

Anonymous said...

6 Pm back again--
Seriously, I think KC might have accidentally reversed the negatives in this post. Shouldn't it read "regarding his speculation to the Charlotte Observer that Crystal Mangum's attackers might have used condoms" instead of "might not have" and "a claim that Mangum asserted condoms might have been used"?

Anonymous said...

KC - I appreciate your observations about Nurse Levicy. Does this mean she is not the lynch pin of this mess and the causative organism for all things in the conspiracy hoax? Seriously, Nifong did say on National TV that " My reading of the nurse's report........." when the report had not been printed.

Anonymous said...

Amac - The only FN who has commented on Nurse Levicy was Kathleen. All based on what happened that night and day at DUMC. Old Lady and Peroxide made very compelling arguments and well written articles.

Anonymous said...

I hope Levicy has a good lawyer also - to start the law suits against those who slandered her.

Anonymous said...

Mac - Nifong could not take Levicy's license away - Only the state Nursing Board - They are far stronger than Nifong - although, I believe he would threaten anyone? Are you having second thoughts on Levicy's role in this matter?

gwallan said...
This comment has been removed by the author.
gwallan said...

Mac @9:10:00 PM
Levicy is in this right up to her forked tongue. She went out of her way to ensure the police believed the "rape" as described by CGM DID actually occur.

Her own womens' studies/vagina monologues based ideology demands that ANY accusation by a woman against a man MUST be believed. It is the same ideology that allows false accusers to remain anonymous, uncharged and unpunished even when innocent people are imprisoned by those lies.

I will say it once again. The involvement of feminist idealogues in the SANE process utterly corrupts that system.

Anonymous said...

1:49 Write that comment to the Ks -they might agree or disagree with you. I think the SANE gig is a waste of time and money - and obviously contraversial.

Joe T. said...

"Oh what a tangled web we weave..."

Anonymous said...

Nifong made "misleading statements" about the Levicy report before he read it or talked to her? How can that be? Gottlieb and Himan lied to him about the nurse's report? Well, dog gone!!!

mac said...

1:11 am

You're right: the D.A. could not
take her license away. However,
he could have filed a complaint -
had he something to complain
about - which would carry more
weight than an average person
making such a report.
Then there would be a
hearing and so forth; hearings
are usually doctor-driven, and
aren't as friendly to lower-tiers
in the healthcare system as they
are to docs.

It happens all the time, but it
usually happens slow-motion:
say a Chiropractor commits insurance
fraud - (I'm not against Chiros,
by the way, but I've known of a
couple who've had this "problem") -
it can take years for the charges
to gain enough weight to drive
the D.C. out of business. Same
with M.D.s who misuse medications:
it's usually sustained behavior.

A D.A., however, can bring charges
AFTER a hearing if the charges are
substantiated. Such as:
"practicing medicine without a license."
After the license is taken, the
D.A. usually handles the case,
as it becomes a prosecutable

However, if the Investigators
merely threatened to bring charges,
they could shake someone up, since
that could bring the issue - as I
described - full-circle, with the
person facing the same D.A. they
refused to cooperate with.

The system sucks.

Someone asked if I'd changed my mind
on the issue of Levicy: I would
say that I'm not inclined to satirize
her at this point, partly because
things haven't added up with regard
to the DA and Investigators reports,
and I'm assuming that the
apparent lies of the DPD have
made it appear that she's a

We'll see, won't we?

If I were Levicy, and IF I did
nothing wrong, I'd be suing the
DPD and Nifong for
mischaracterizing my work,
using it to set up 3 innocent boys.

That's where I'd seek my redress.

scott said...

So the gambit is to present a defense where everyone else --Crystal, Meehan, DPD, Levicy, et. al. -- was lying and cheating, while Nifong was the victim of all of this, resulting in the mess of a case.

The facts don't support this angle. What possible reason would Meehan have for putting his lab in jeopardy by concealing exculpatory evidence. Nifong was the one that was going to gain something (a possible conviction), not him. My guess is Nifong said something to Meehan that went like this: you want to keep getting work from Durham County? Then you'll make sure the DNA evidence (several other men; no LAXers) never sees the light of day.

Anonymous said...

Regarding the issue of whether Nifong can remain DA if his law license is taken away-- the answer is a bit weird. In order to be elected or appointed to the DA spot in NC, you must have a license to practice lw. When the lacrosse situation arose, there was, however, no provision of NC law that said what would happen to a DA who lost his license while in office. There were only two alternatives-- the DA would have to resign or a proceeding to remove him would have to be brought (like the Beth Brewer proceeding). Earlier this year, a bill was introduced in the NC legislature to make removal automatic for any DA who lost his or her license. Do not know if it passed. The same situation used to exist for judges but the legilature fixed it with an automatic removal statute after a judge was disbarred but refused to resign his judgeship.

C. Thomas Kunz

Ivy said...

"I can make an assertion. The assertion can be a lie. It does not matter that the assertion is a lie because it is the truth that I have asseted, and I have made the assertion so it follows that the assertion must be true."

Stop parroting Patrick Fitzgerald already, Scooter Libby deserves to go to jail.

Don't you see a pattern? Those who are not pc darlings must go to jail, with or without a crime being committed: e.g. Martha, Scotter. So what is wrong with Nifong trying to do his "work"? And the Duke'88 convicted the three rich white males without a trial?

If you don't want to go to jail, be a pc darling. Sandy Burger is scotch free for lying to federal investigators. Armitage is off the hook for committing a non-crime.

Anonymous said...

I would also be suing the people who libeled and slandeed me - Are we seeing a back tracking on the the Levicy crimes?

mac said...

I don't recall ANYONE suggesting
that Levicy committed a crime.
There were many suggestions that
she went beyond her authority,
reported stuff that she either
didn't witness or couldn't testify

Moreover, there was a suggestion
that DUMC might be held accountable
if Levicy misrepresented herself,
the evidence or her employer.

Misrepresenting one's self professionally -
(i.e. overstepping one's scope of
practice) - is rarely made into
a criminal offense. Except when
there is a pattern, or someone determined
to bring such charges into the
realm of the criminal courts.

In other words, one can lose a
license, not be able to practice one's
profession, but not face criminal
penalties. I've seen it go both

The suggestion of criminality
is yours, my friend.

Anonymous said...

Mac - This nurse has been accused of being the lynchpin of a Criminal Conspiracy - including her own criminal actions. She has been vilified and crucified on the blogs by some poster. Easy to back track on the blogs and read it yourself. What has been done to her is criminal, Bloggers and a couple of nurse's have not adhearded to the Innocent Until Proven Guilty rights.

LarryD said...

Kunz, I thought I remembered it that way. I expect someone foresaw Nifong being disbarred and not resigning, and started the statutory correction before the situation actually arose.

11:58 - As I recall, several of those who argue that Levicy is culpable gave evidence in support of their position. This is not prohibited by the "Innocent until proven Guilty" principal, if it were, no one could ever be proven guilty.

Anonymous said...

11:58 has some interesting gaps in her/her knowledge of the law. IANAL but I certainly don't see how I could know less about the law than 11:58 does, so I'll share some of what I do know.

I presume he/she (let's say she) is referring to the laws of slander and libel when she claims that "what has been done to [Levicy] is criminal". However, slander and libel both require that the allegedly illegal statements be either knowingly false or made with malicious disregard for the truth. (The latter clause is there to sew up the loophole of actively avoiding any knowledge of the truth or falsity of a claim so that you can keep on making it -- not unlike Nifong refusing to examine the exculpatory evidence that the defense tried to show him, so that he could go forward with bringing charges which were shown to be false by that evidence.)

Now the bar as to how knowing and how false "knowingly false" has to be set, I believe, pretty far out -- because there's an obvious concern about trampling on free speech rights. This means that, while it may have been repugnant that columnists and pundits across the nation prejudged the players as guilty and referred to them as such, it probably does not constitute slander or libel, since it was based on public statements by the District Attorney that the general public did not know the DA was pulling straight from his colon.

So, is what is happening to Tara Levicy "criminal"? Highly, highly unlikely. There is no evidence to indicate that anyone, neither "Bloggers" nor "a couple of nurse's [sic]", has said anything knowingly false or in malicious disregard of the truth about Levicy's actions. It might be false, especially as one of the major sources of information about Levicy's alleged statements is Sergeant "My Memory Gets Better With The Passing Of Months" Gottlieb -- but there's no reason to believe anything said about Levicy has been knowingly false. Then again, if Levicy knowingly let herself be presented in the public eye and in court documents as a SANE nurse and she was only a nurse in training... it might be unwise for Levicy or her supporters to pound on the table and demand that the full story come out.

Anonymous said...

Levicy was not a nurse in training - she received the hard copy of her certification on 3/14 -that was false. The documentation of the rape kit is all that matters. The rest if from the noise machine of speculation. "Malicious disregard of the truth" looks right to me. did they knew the information they were passing out was false? They knew it was gross speculation - is that the same? Just an example of what was stated is false. It is documentated that this nurse was shredded and the Doctor ignosed by posters, untill they were forced to admitt, the Doc did the exam. I have not read of any supporters who are demanding for the full story to come out. That will be done in discovery as Levicy sues the the folk who libeled her. And it is in black print on the internet. Perhaps, you are unfamiliar to the excess remarks made on this nurse. Take a look at the "Blame the Police" essai from KC for some insight.

Anonymous said...

From 11:58 This is easy - I am not a lawyer or claimed to be one. Free speech rights to deflame folk with false accusations. what are you smoking? Some posters have argued what Levicy did was criminal. Thanks for your help.

Anonymous said...

Hahaha! Well, Tara -- oops, I mean 11:58 -- good luck with those libel suits against all those nasty mean "Bloggers" and "nurse's". Just remember that in the jurisdiction you'd be suing in, truth is an absolute defense to a defamation claim. The minute one of the people you're supposedly ready to sue can document the proof that yes, you did do something criminal -- they're off the hook.

And you're on.

Anonymous said...

They can't document any of their claims against Nurse Levicy. If they could, you would have seen it by now - just rank speculation. Truth is an absolute defense in any jurisdiction. The defense lawyers have not critized her. The Manly/Levicy exam exonerated the guys and trumps all speculation. Why you folk keep calling anyone who defends the nurse, Tara, is a nysterty. Suggest you re read KC's Blame it on the Police. That is why we have jury trials to sort this stuff out. Notice how quiet the Levicy accussers have become since more information is coming out and talk of civil suits, written about gw

gwallan said...

re Levicy.
Read her resume.
Note that even if her statements the night of the exam have been misreported she persisted in attempting to make contributions subsequently.

Her actions are probably not criminal. They ARE extremely unprofessional.

Nor are my statements actionable in attacking ANY involvement by gender feminists in the SANE process. If recent posters believe so they are quite welcome to take me on in any court. I would welcome the opportunity to lift the rock these cockroaches hide beneath.

Bring it on guys.

Feminists are a corrupting influence in the SANE process specifically and the legal process more generally.

Anonymous said...

"The defense lawyers have not critized [sic] her."

Hmmmm, isn't this a variation on what Nifong just tried? "Judge Smith didn't bring proceedings against me for my ethical violations; therefore, he clearly doesn't think I committed any ethical violations." Of course that backfired because it prompted Smith to very publicly note that just because he hadn't lowered the boom on Nifong yet did not mean he couldn't or wouldn't.