Wednesday, June 27, 2007

Freedman: Communication Matters

Anne Blythe has a summary of an afternoon panel on prosecutorial misconduct in which Jim Coleman and Michael Tigar joined NCCU law professor Irving Joyner (who had regularly defended Mike Nifong until several weeks ago) and David Freedman (who defended Nifong at the just-concluded ethics trial).

Freedman argued that communication between prosecutors and defense attorneys was critical. Given that he represented someone who said he didn't feel obligated to meet with defense attorneys to consider exculpatory evidence--and, in fact, had refused to do so in this case--Freedman probably was not the best messenger for this argument.

Jim Coleman had the most important comment: pointing out Nifong's extraordinary line of defense--that he hadn't read critical documents in the case--Coleman observed, “It seems strange to me that any prosecutor would go forward in a serious criminal case without having reviewed a file. In private practice, a lawyer who did that would be fired. I think it reflected indifference.”


miramar said...

It's a amazing to me that a Nifong enabler like Irving Joyner would have the gall to join this panel. What would he actually talk about, why some law professors would be dumb enough to believe anything a DA tells them?

My all time favorite Joyner quote: since the lawyers were tearing Nifong to shreds in the media, Joyner observed that just because they were dunking in practice, that didn't mean they would be doing it in the game. Care to revise that comment, Coach Joyner?

If you ever wonder which Durham law school is better, think of Jim Coleman and Irving Joyner.

Anonymous said...

Should a DA communicate with accusers?

Anonymous said...

Would have been nice if Blythe mentioned what Joyner had to say for himself. Not that he could say too much that wouldn't pass the laugh test. What a maroon!

Anonymous said...

Where does one go to get the "maroon" joke?

Anonymous said...


you get the point, moron

Anonymous said...

Yes, perhaps Nifong's failure to read the case reflected indifference, but at what was that indifference directed. It was an indifference that reflected his own hubris, but more than personal hubris, it reflected the power of the district attorney under the North Carolina sysetem, the power to bend the law to be "whatever they want it to be." It is what the Duke administration has done. It is what the Duke faculty has done as has a greater part of the Durham police involved with this case. They have made it what they wnted it to be. Listen to them as they have all become "potbangers" to the case and are indifferent to its results except as they have been found out in their bias and indifference toward others not like themselves.

No justice, no peace said...

Inre: "Jim Coleman ... observed, “It seems strange to me that any prosecutor would go forward in a serious criminal case without having reviewed a file. In private practice, a lawyer who did that would be fired. I think it reflected indifference.”

This assumes Nifong is telling the truth about not reading/reviewing the file. What has Nifong done to convince people that he did NOT read the files?

I'm beginning to think that people can't get their arms around the fact that some people may be so evil and repugnant that they will in fact lie about everything.

The notion that people seem to think this is an aberration is extraordinarily odd to me. He has shown a propensity to lie multiple times when answering to many questions. Why would one assume this exceptional behavior?

Based upon that alone, Nifong's prior cases, expense reports, hiring/firing records and anything he signed should be reviewed.

Anonymous said...

It just goes to shows that he never even cared about the facts from day 1. His 'indifference' just reflects that he was out to get the lax students no matter what. The 'meta' narrative was in place, and that is all that mattered to him... that and making sure he won the election....

Ralph Phelam said...

"Where does one go to get the "maroon" joke?"

Warner Brothers classic cartoons. Bugs Bunny said it all the time.

Ralph Phelan said...

"Freedman argued that communication between prosecutors and defense attorneys was critical. Given that he represented someone who said he didn't feel obligated to meet with defense attorneys to consider exculpatory evidence--and, in fact, had refused to do so in this case--Freedman probably was not the best messenger for this argument"

I disagree.

"My client broke this rule, and look what happened to him!"

Anonymous said...

Not to disagree with Jim Coleman, but I don't think it reflected indifference. It reflected that Nifong is totally full of shit.

Anonymous said...

I am sure he was only being polite and taking Nifong at his word when Coleman mentioned his assertion of not reading files.

Personally I can't buy into it. Nifong was under tremendous scrutiny and in the fight of his life with the election. If I had to bet I'd say Nifong read everything and read it and read it some more.

In fact, I'll bet Nifong sat in bed at night reading this stuff and knew it inside and out. Nifong is not dumb, just filled with hubris as other posters have noted.

He knew all the stories and all the ins and out and reasons he should not have charged the players. Yet he charged ahead anyway. He was the DA after all.

Not reading reports is just the excuse that makes him look the least evil. Personally I think he knew all the facts better than anyone and decided he would do what he thought was best for him. He thought he was untouchable....I am glad to say he was wrong.

Anonymous said...


I agree, Freedman in representing Nifong saw first hand what havoc a crooked DA could cause on a justice system not designed to cope with a dishonest prosecutor. Freedman after all had the unenviable task of defending Nifong. Not even Denny Crane could come up with a defense for Nifong's actions. I suspect Freedman asked Nifong on many occasions why he didn't consider looking at the evidence or even speaking to the defense lawyers.

Anonymous said...

5:22 Ya gotta be a fan of WB Bugs Bunny. It's his way of saying "moron."

Anonymous said...

I seriously think Nifong thought as long as Crystal was making allegations, he could proceed and no one would touch him. He appears to be claiming that as long as Crystal was alleging she was raped, and if she could ID whoever it is was supposed to have raped her, he had a case. If Crystal made different allegations (in december, when she said she was not sure what was used), he would just amend the charges. I guess if she changed the allegations to something else, he would charge the men with something else. Maybe he really thinks this is how DA is supposed to do his job.

Anonymous said...

5:51 PM

I made a comment on another posting about the Group88 being frauds. The comment to the lacrosse coach that it wasn't about the truth anymore is a painful reminder of the current state of academia. It's a long way from the ex libris veritas of my college days.

Anonymous said...

i agree with the posters who believe that freedman is the perfect messenger on the prosecutor/defenselawyer communication issue...i think it is a bit of a mea culpa from freedman...on behalf of the "administration of justice"...and i agree that freedman most likely tried to elicit rational explanations from nifong to assert at the bar hearing...can you imagine what it must have been like for freedman as he prepped for the bar trial?...the man deserves a purple heart!

Anonymous said...

It astonishes me that even at this late date, people who should know better are pussyfooting around Nifong’s trespasses – in spite of empirical sense and common experiences.
Communication breakdown with defense attorneys, and indifference? Get real. Nifong did not talk to the attorneys about the alibis because doing so makes his claims ridiculous. He already knew that the students were innocent. But he still needed to railroad the students to win his election. Why would he want to have on records that he knew about the alibis? And of course he read that report. How else could he ensure that the exculpatory evidences were excluded from it?

Anonymous said...

They all read the blogs and knew exactly what was going on in the case. Nifong didn't have to review the documents KC gave him a daily synopsis.

Duke1965 said...

5:51 #2:

I agree that Nifong thought that as long as he had an accuser, he could simply flip the case over to a jury and let them take the heat. I think he saw it as a "win-win" situation, where he would be seen as having stood up for the "victim", and the jury (assuming they didn't convict) would take the heat for a not guilty verdict. If that was indeed his perspective, it wasn't so much an active "frameup" as complete indifference to the facts, because the facts to him were irrelevant at the pre-trial stage. Unfortunately for him, he forgot about a little thing known as pre-trial due process and the prosecutor's ethical obligation to seek justice, not simply flip a case to a jury. Interesting to note that a number of the "lynch mob" commentators said the same thing, that Mangum should have her day in court, nothing less...... the difference of course, is that Nifong should have known better with his 27 years of experience as a prosecutor. Pre-trial due process is indeed critically important, as this case so aptly demonstrates.

Anonymous said...

Nifong recklessly disregarded the facts, and that's the best spin we can put on his conduct. Taken at his word, Nifong read none of the reports, took few notes, and did not pay attention in meetings. He must not have asked many questions of the expert he did have. Yet, we have testimony from the SBI lab analyst and "Mr. Obfuscation" that Nifong was deeply involved in the forensic evidence portion of the case. Whom to believe?

A diligent lawyer would behave differently. Which probably explains why the disciplinary case is exceptional.

What can we take from this fiasco? Power corrupts, absolute power corrupts absolutely. It did not take long for the great power of the DA's office to corrupt Mike Nifong. Thus, there need be far more checks on a DA's power.

Walt in Durham

Anonymous said...

Indifference... yes. Indifference to any truth, that might have come between Nifong and his political ambitions.

Anonymous said...

Who is this Crusty individual and what does he/she have to do with this case?

Anonymous said...

Crusty is Cedarford's name for Mangum.

Anonymous said...

Oh yep. N&O and Heruld Sun both argued that Mangum deserved her day in court very late into the game.
Nifong is not alone in thinking that as long as woman makes allegations, she got to have her day in court, no matter how ridiculous/incredible those allegations are.
So far Nifong has been the only one to pay the price.

Anonymous said...

What happened when a ship carrying a cargo of red paint collided with a ship loaded with blue paint?

The sailors all got marooned.

Anonymous said...

Off topic, but Pressler's book is now at 28 in the NYT nonfiction best sellers list -- one spot above John Grisham and one below Woody Allen.

Duke1965 said...

I can see a non-lawyer thinking, "Hey, let her have her day in court" without really understanding pre-trial criminal procedure and all of the due process safeguards that are supposedly built into the system prior to trial. But a lawyer is specifically trained in criminal procedure, as I'm sure Nifong was. The fact that he chose to ignore these safeguards is, in my view unforgivable.... as Lane Williamson noted, the system didn't right itself until "backup" systems were put into play.... and those backup systems should not have been needed. The really scary part of all of this is how close these young men came to a jury trial in a frenzied "Hang 'em high" atmosphere, where "jury nullification" was a real possibility..........

Anonymous said...

Nifong's only regret is that he was caught.

mac said...

It'd be interesting to ask Freedman
how he prepared for the Bar hearing:

Examiner: Mr. Freedman, how many
times did you meet with Mr. Nifong.

Freedman: Um, to the best of my recollection,
about 4 times, most of them right
before the hearing.

Examiner: What do your notes say
about his rationale for pursuing
the case in question?

Freedman: Sir, I didn't feel as
if notes would be profitable at
that particular juncture; I didn't
want to prejudice my thinking.

Examiner: Is this why you waited
until so close to the hearing to
meet with Mr. Nifong, that you
didn't want to "prejudice your

Freedman: Exactly, your honor:
I wanted to be able to offer a
fresh opinion on his guilt or
innocence, based upon my last-
minute observations.

Examiner: What did Mr. Nifong think about that?

Freedman: I don't know, but I
surmised that he thought he wouldn't
need my services, since he was
innocent of all accusations and

Anonymous said...

Hey, I would be all for letting her to have her day in court-in a defendant's chair. Unfortunately Cooper claimed special prosecutors thought she might believe her many stories, so that's not going to happen.

mac said...

Hope everybody realizes that this
(my 7:48) is satire.
But that's how it should have been
handled by Freedman, if there were
any justice.

Brian said...

Mr. Johnson,

It wasn't indifference of behalf of Mr. Nifong. It was for plausible deniability later on. And we see how that worked out.

By the way, I also loved Nifong's argument that the DNA materials and his meeting with the guy were "work product." Nice to know that a career prosecutor care nothing about Brady.

I'd loved to tell my boss I didn't read a file in a case where $1,500 is at stake. I'd get that "paper route I always dreamed about."

Anonymous said...

Nifong was playing the odds. They gave him self-confidence he could pull this off. Out of thousands of prosecutorial misconduct cases, it is hard to find ANY that have suffered a harsh consequence. Even when the misconduct found that an innocent person had been convicted and sent to prison, even when the accused has spent decades in prison --DAs get slap on the hands.
Since Nifond needed money for his campaign (about 30K debt), it probably was worth a slap on the hands. After all, that's what some of his colleagues got--one even became a judge.

Anonymous said...

Even Joyner now appears to be doing some back pedaling on Nifong. Not much, but some...

Anonymous said...

Did they arrest CGM yet?

Anonymous said...

Believe it, Nifong read every word, again and again...and BTW, the assumption that a Durham jury would have tossed this case is based on what? Common sense? Logic? The complete lack of evidence?

Perhaps the idea that any jury would have been ashamed to convict based on this obvious pack of lies?

Ah. Because Durhamites are noted for their sense of shame.

Nifong was prepared to send all of them to prison, nothing less, and he came very close. The injustice wasn't gonna be his fault, and he personally deserved a nice break, to go out on a high note... because his sterling qualities and superior brainpower had never been properly appreciated.

Anonymous said...

Who is assuming Durham's jury would have tossed this case?

Anonymous said...

Duke 1965: "...I think he saw it as a "win-win" situation, where he would be seen as having stood up for the "victim", and the jury (assuming they didn't convict) would take the heat for a not guilty verdict."

mac said...

A jury from the land of Durhh
would ask for entertainment by the
Ubuntu Dancers and a ritual strangulation
of privileged rich whiteboys
with enormous prowesses...
Plus lots of chicken blood and a
Voodoo ceremony...
Led by the Chaplain at Duke...
While Brodhead used a flagella
on himself, apologizing for his race...
And Kim Curtis would sing mea culpas
to the Jury for being "privileged."

Guess that's the moral/racial
equivalent of those who continue
to say:

"Something happened."

mac said...

"Something happened," BTW,
is the new equivalent of the "N"
word, applied to privileged whites.

I wish it weren't so.

mac said...

"Perceived privileged whites."

Anonymous said...

The part that was probably so scarry to the Duke 3 is that once you are convicted, a lot of avenues are closed to you.

I mean it took D Hunt ten years to get out. He got a lot of publicity, it went all the way to the governor's desk, and yet he still sat in jail.

No wonder Nifong thought he could get away with this.

Anonymous said...

Well, I think the part that was scary to Duke 3 that once you are convicted in NC you go into NC prison.

Duke1965 said...

My post didn't imply that I thought a Durham jury would toss the case............ in fact, just the opposite............ as I said, jury nullification was a real possibility.....

Michael said...

Nice opinion piece by Mayor Koch.

Anonymous said...

Kc you've done an awesome job, i do agree some of the recent bloggers have gone too far and should be showing the fairness we have all prayed for toward the 3 victims to the now accused.
It is the strangest series of events, I can't stop reading your comments, but the bloggers are no longer being fair.
I'm glad you stopped the post on Mr. Nifong's disappearance. He is obviously going through a terrible time. I have no sympathy for him, but I understand why he might be acting irrationally.
He did alot of bad things.

Anonymous said...

11:44 "[Nifong] did a lot of bad things"

I won't even bother to comment on that.

Isn't it time we started making suggestions for fixing this mess?

I sincerely think that integration doesn't work, so why not give the blacks Florida and Georgia. They'll probably call it Africa. That's fine with me.

Anonymous said...

No - North and South Dakota

Anonymous said...

Koch, commending the MEDIA?!

Please ... you're telling me that the media came to the aid of these falsely accused?

Koch is an idiot, and he was a feckless, pathetic mayor.