Thursday, June 14, 2007

Nifong Trial, Day II

The highlights from Day Two of the Nifong ethics trial.

1.) Himan Holds Up

In Tuesday’s testimony, Officer Ben Himan dropped a number of bombshells:

  • Pointing to inconsistencies in Mangum’s stories and the lack of a toxicology report, on March 27, Nifong remarked, “You know we’re fucked.” Nevertheless, that afternoon, he launched his preprimary publicity barrage, stating with certainty that a racially motivated gang-rape occurred.
  • “Sgt. Gottlieb advised me that before we were going to do anything,” Nifong wanted to be advised and that everything had to go through the DA.
  • When he heard that Nifong planned to go ahead with indictments, Himan asked, “With what?”

  • He met individually with Nifong to discuss his concerns with indictments. Nifong blandly responded, “If you believe her story in one part, you’ve got to believe her story in another part.” As a result, Nifong sought an indictment against Reade Seligmann even though he didn’t know if Seligmann even attended the party.
  • He was “shocked” about not receiving advance notice of the Linwood Wilson interview of Crystal Mangum.

In yesterday’s cross-examination, not only did Nifong attorney Dudley Witt fail to dispute any of these assertions unchallenged, but Himan added another bombshell: that Nifong knew about Crystal Mangum’s medical history, including her psychiatric history, prior to the indictments of Seligmann and Collin Finnerty.

Moreover, SBI agent Jennifer Leyn corroborated another part of Himan’s testimony, making clear in her brief late-afternoon appearance that Nifong was the person in charge of the case. It was, she said, highly unusual for her to be speaking to the DA, and not a police officer, when giving reports during the investigation itself.

The testimony of both Leyn and Himan should provide additional ammunition to those—like Mayor Bill Bell and Councilman Eugene Brown—who are demanding a comprehensive investigation of the police.

2.) Nifong’s SOS

Witt left so much of Himan’s testimony unchallenged because he was busy implementing the apparent Nifong approach—the “Slime & Obfuscate Strategy,” or SOS.

Witt spent the bulk of his two hours repeating: Racial slurs! Broomstick! How such items related to Nifong defending himself against charges of improper public statements or withholding DNA evidence Witt never said. Nor did he mention that no one (except the wholly discredited Mangum and Nifong) ever suggested that the three falsely accused players had anything to do with the above items.

Jim Cooney, appropriately, responded, “What the defense tried to do this morning was absolutely outrageous to these young men . . . But somehow the defense is trying to imply that, because one person on a 46-member team acted inappropriately, that gave Nifong the right to indict Mr. Reade Seligmann with no evidence. It's outragous. Frankly, it's despicable that the fact that he's willing to slime innocent people in the context of his defense.”

When not sliming the players, the Nifong defense was obfuscating. Nifong co-counsel David Freedman spent the better part of 60 minutes in meandering questions of Dr. Brian Meehan that seemed to go nowhere. (Meehan’s equally meandering answers didn’t help any.) The Nifong defense seemed based on Meehan’s claim that he filed an “interim report,” a phrase that first appeared yesterday. And even that claimed was undermined when Freedman asked one question too many, and ascertained from Meehan that, of the 2000 reports he previously had filed a grand total of zero were “interim reports.”

Left unchallenged were fundamental elements of the Bar’s charges: (1) that Nifong lied to Judges Stephens and Smith when he said that he and Dr. Meehan hadn’t discussed anything beyond what was contained in Meehan’s report; (2) that Nifong failed to uphold the law when he did not provide a complete report of all test results to the subjects of a non-testimonial order. Moreover, Nifong’s “interim report” defense would allow defendants who plea bargain to never get the full results of the state’s DNA tests.

3.) The Unpredictable Dr. M

In his previous court appearance—December 15—Dr. Meehan showed himself to be a highly . . . erratic . . . witness. But he outdid himself yesterday:

  • He bizarrely rebuked DHC chairman Lane Williamson for what Meehan claimed was an inappropriate question. (In fact, Williamson’s question—which revolved around how Meehan as a juror would use the unreported DNA evidence—got to the heart of the case.)
  • He asked David Freedman to repeat a question because, he said, he was moving in his chair and didn’t hear the attorney.
  • He stopped the proceedings at one point because, he said, the light coming through from blinds (in a quite dark courtroom) was blinding him.
  • He suggested that even lawyers—much less scientists like himself—should have understood that his obscure phrase “non-probative” DNA references really meant that the tests had revealed multiple, unidentified male DNA.

And in a case characterized by absurd statements, he made what might have been the most absurd remark of the case, comparing the unidentified male DNA left on Crystal Mangum’s panties and rectal swab to . . . what might be left behind if kindergarten students touch their teacher.

He did miss his cue once. Asked how Nifong reacted on April 10, when Meehan told him that not only did the rape kit not match any lacrosse player’s DNA, but it also contained matches to unidentified males’ DNA, the doctor paused. Could Nifong have responded to another piece of bad news with a “you know we’re fucked” comment? Meehan eventually said he couldn’t recall how the DA specifically responded.

4.) Lane Williamson continues to impress

The DHC chair asks incisive questions that cut to the heart of the matter, quickly.

From Himan, Williamson ascertained that: (1) Nifong made the decision to go to the grand jury; (2) Nifong knew about Mangum’s extensive psychological history before indictments.

From a reluctant Meehan, Williamson ascertained that: (1) Meehan told Nifong "multiple times" that there was unidentified male DNA, and Nifong never asked him to follow up on the information; (2) Nifong never explicitly said that May 12 report wasn't a final report; (3) in the more than 100 rape case reports that Meehan has prepared, he never had limited his report to just reference specimens.

5.) Bannon on tap

The opening statements and Mike Nifong’s testimony probably will get more attention—but for anyone interested in the case and the legal issues surrounding it, the Brad Bannon testimony will be the highlight of the trial.

The “DNA Breaker” began his testimony yesterday afternoon, and is first up this morning, at 9am.


mac said...

Bannon had to wade through the
muck that Meehan left unstated,
and might well agree that it was
the equivalent of a rough draft,
but that the D.A. wasn't about
to ask for a final version.

Obfuscation: that's likely the
word Bannon will use for Meehan's report.

bill anderson said...

Good work. Other than trying to slime the players, I cannot think of why Freedman went with his line of questioning to Himan. The only thing I can imagine is that by establishing that Crystal was "credible" in little things, then her story was believable to Nifong.

Yet, there are two problems. First, as you have pointed out, none of the three made racial statements at all, so the comments from an unidentified, UNINDICTED player are irrelevant to the issue of guilt and innocence for Reade, Collin, and David. So, he was just trying to slime people in order to make people angry.

Second, while there were nails left in the bathroom and Crystal's purse was in the yard, neither establishes her credibility, since (a) how they got there is disputed, and (b) there were no signs anywhere of violent struggle.

It is clear that Freeman is trying to confuse the bar, and I also can see that strategy is not working. If anything, Lane Williamson seems more convinced now than ever that Nifong did everything with which he is charged -- and more.

Anonymous said...

KC, aside from the trial itself, what are your impressions in the after-hours, your sense of the place, the opinions and conversations surrounding the proceedings.

Anonymous said...

I've been reading this site obsessively for so many months that it just occurred to me this morning that I never thanked you for your work. I'm related to one of the three players and had no hope last spring. Felt so helpless.
As we wind down and move on, thank you.

Anonymous said...

Thanks, KC!

davod said...

It was my understanding that this was being heard before a judge only. If this is so why is the defence proceeding as if they have to sway a jury.

Anonymous said...

Nifong's lawyers are acting like they're presenting a case to a jury. Williamson isn't impressed. In fact, if I read his reactions correctly, he's royally pissed. Freedman and Witt aren't helping Nifong at all. Today, Brad will deliver one of the final cuts that will sever the carotid.

TaterCon said...

My two cents, answering Davod @ 8:03:

Seems to me the Nifong defense is trying the case with "jury trial style" in order to set up an argument "See, there WAS probable cause for our client to go forward with the prosecution..."

Other than such an argument being pure crap, it also misses the whole point of the State Bar's charges! Assuming arguendo that there even was a scintilla of probable cause to go forward with charges against anyone, a prosecutor still violates our canons of ethics by stirring up a community with press statements against an accused; still violates the canons by playing a shell game in the open discovery law with the exculpatory evidence; and, still violates the canons by lying and making misleading statements in open court to opposing counsel and the tribunal.

Maybe Freedman and Witt have decided the best they can do for Nifong is to get him favorable stories in the NYTimes from Doof Wilson.

Anonymous said...

This is OT, but I wonder if any locals can clear this up: on another site, I read that Victoria Peterson used to be active in "Conservative Republican" politics in Durham. Can this be so? She is obviously a race-obsessed full-mooner, is there any way a Conservative could tolerate her sorry a$$.?

Anonymous said...

Davod, the hearing is before a 3 person commission.

Anonymous said...

The defense strategy seems to have one flaw--it's painfully obvious to anyone with an IQ above that of a houseplant that: (1) Nifong knew or should have known that the case was bogus from the get-go and (2) he made inflammatory statements to the media. Thus, all the side BS about is simply smoke, and it is seen as such.

Anonymous said...

First of all, Kudos to KC for his tireless efforts. A couple of observations: First, perhaps Williamson is frustrated at the suddenly shifting defense tactics. Freedman stood before the court in opening statements and pledged that his client would NOT challenge AG Cooper's conclusion that the boys were innocent, yet that is precisely what Nifong's defense team suggested in their cross of Himan. While I'm sure that Freedman would say that he was simply trying to establish Nifong's state of mind early in the investigation, his team's "slime" tactics seemed to me to butress the "something must have happened in that house" theme of the Group of 88. Shame on Nifong's defense team!
Second, I wonder if it might have been more effective if the State Bar attorneys had let Nifong call Meehan during the defense case (they would have to) and then have Meehan on cross, rather than direct. A witness as slippery as Meehan is best probed with the benefit of the latitude of cross-examination. Compare the "leashed" questioning by the State Bar attorney with the "get to the heart of it" cross by Williamson. A stark contrast. I hope Williamson will continue to utilize his inherent authority to do aggressive clean up duty with the remaining witnesses.

Anonymous said...

I'm a little worried by Meehan's meanderings and lies, and his refusal to spell out what everyone knows -- that it was Nifong's idea to write a report omitting the "other DNA" evidence.

Meehan testified in December that this violated his lab's policy. He testified yesterday that he had never written such a so-called "interim" report in his lifetime of writing 2,000 reports.

So why would he decide, on his own, to write the report differently this one time? There can only be one answer -- Nifong's instructions.

But, the panel may have some concerns that Nifong's direct participation in the expurgated report is not proven. They may be therefor too chicken to convict Nifong on the withholding of evidence charge. And, with only a conviction for the unethical statements, they may stop short of permanent disbarment.

My hope is that they will see the truth, and know that their conclusions of guilt are supported by the totality of the record (yesterday and on December 15).

They should also realize that Nifong's clearly lying to the Judge repeatedly about not having dicussed anything else with the expert beyond what was in the report, is more than sufficient proof that Nifong deliberately withheld evidence -- regardless of why Meehan's report was written to conceal crucial results.

My gut feeling is, the panel sees the light. I hope they have the courage to do what is right.

No justice, no peace said...

“One thing which emerges strongly from any case-by-case study of intellectuals is their scant regard for veracity. Anxious as they are to promote the redeeming, transcending Truth, the establishment of which they see as their mission on behalf of humanity, they have not much patience with the mundane, everyday truths represented by objective facts which get in the way of their arguments. These awkward, minor truths get brushed aside, doctored, reversed or are even deliberately suppressed. The outstanding example of this tendency is Marx…Now come two intellectuals in whose work and lives deception - including self-deception – played a central, indeed determining role.” – Intellectuals, by Paul Johnson.

Mr. Johnson is referring to Victor Gollancz and Lillian Hellman in the opening paragraph of Chapter 11.

I came across this last night and it resonated. The parties involved in the Duke fiasco; the Gang of 88, Brodhead, Nifong, pot bangers, the MSM, Victoria Peterson, etc. are clearly not as “intellectual” as those mentioned, though they apparently subscribe to similar fraudulent game plans. That is to lie through acts of commission or omission. Also, history demonstrably proved the horrid nature of Communism and particularly Stalin’s purges in spite of the lies utilized by the likes of those that supported totalitarianism regimes.

Anonymous said...

Nifong's attorneys know his goose is cooked as far as the Bar charges go. They are simply playing to the media and the public now.

Despite Meehan's tap-dancing around the truth yesterday (BTW, "erratic witness" is a nice euphemism for "cheesy liar"), it is obvious that Nifong is guilty as charged, on all counts. The unethical (and untrue) statements he made to the media are basically undisputed. The fact that Nifong wilfully failed to comply with his discovery obligations (such as memorializing his conversations with Meehan and turning them over to the defense), and that he blatantly lied to the Court, is abundantly clear. And despite Meehan's tap-dancing routine yesterday, there is also overwhelming evidence that Meehan and Nifong agreed to withhold exculpatory DNA evidence (e.g., the fact that Nifong has offered 12 or 13 different, mutually contradictory, explanations for not turning over the material; the fact that Meehan admitted under oath in the December 15 hearing that he was acting on Nifong's instructions, etc.).

It doesn't really matter what any of the other witnesses say now. There is already enough evidence in the record to justify disbarring Nifong -- and you can bet that his lawyers (despite their apparent dim-wittedness) know it.

Anonymous said...

Sweetmick says: Go back to Meehan's testimony when he informed Nifong on April 10 that he, Meehan, had found multiple DNA on Crystal's panties and rectal swabs, none of it from lacrosse players: Meehan stated that Nifong's response was, "Good". These 2 bastards really did conspire to conceal this evidence.

mac said...

Sweetmick 11:00
Ya gotta wonder why he would have
said "good," eh? Maybe "good,
we're gonna fry three innocent



Anonymous said...

You manke me proud to be a CUNY graduate!

Anonymous said...

ALL NC lawyers are certainly watching these proceedings very carefully. And wondering if they might be next... It's about damn time - jerks.