Saturday, February 02, 2008

Another Mosteller Article

In a question-and-answer session last month, I was asked what lessons other states could draw from the lacrosse case. I suggested that the case showed the benefits of open-file discovery (without which Mike Nifong clearly would have concealed all exculpatory evidence) and the need for all states to enact due process-friendly identification procedures.

In his second major article on the case (his previous article appeared in Fordham Law Review; this one was published by George Mason Law Review), Duke Law professor Robert Mosteller tackles the first of these issues. He convincingly argues that North Carolina’s open file discovery law made possible the discovery of Nifong’s transgressions, which in turn set up the Bar’s decision to prosecute him. In this respect, Mosteller suggests, it’s best to view the Nifong affair as one step in a continuum of prosecutorial misconduct, beginning with the Gell case and including the Honeycutt case.

Broad ethics guidelines about a prosecutor’s responsibility, according to Mosteller, are extremely difficult to enforce: “These cases, including Nifong’s disbarment, demonstrate the difficulties inherent in professional discipline of prosecutors, even in clear cases of ethical misconduct. The ethical duty to ‘do justice’ is hardly a real source of discipline.” Instead, he contends, the three cases “show the importance of concrete standards of conduct, such as an obligation of full disclosure, which apply to the mundane details of the investigation as well as the exculpatory. Such requirements have the definite advantage that they can be enforced in the first instance without relying on a prosecutor to recognize, or a trial court to find, the exculpatory potential in material in the investigative file.”

Mosteller spells out the case against open file discovery more clearly than those North Carolina prosecutors who last year attempted, unsuccessfully, to weaken the state’s law. There are three arguments, he writes, against the concept: “First, broader discovery permits criminal defendants to develop effective perjured testimony to meet the revealed details the prosecution will offer; second, broad disclosures will reveal identifying information regarding prosecution witnesses and will permit witness intimidation; and third, because the defendant is protected by the Fifth Amendment, reciprocal disclosures required of the defense will inevitably be more limited. Further summarized, the traditional argument against further discovery is that broader discovery tilts the balance of advantage, which already favors the defendant because of various procedural protections such as the requirement of proof beyond a reasonable doubt, too far or unfairly to the benefit of the defendant.”

The interests of justice, nonetheless, trump these concerns. The Gell, Honeycutt, and Nifong affairs demonstrate “the paramount importance of a broad and sure disclosure requirement in criminal cases that, in the first instance, helps prevent failures of ethical standards from ever occurring because little opportunity is allowed for misjudging what is potentially exculpatory evidence. Where an initial failure occurs, such pro-visions also assist the court and opposing counsel in learning of the failure at a relatively early stage in the proceeding”—which is exactly what occurred in the lacrosse case.

Mosteller’s argues details the Bar’s difficulties in obtaining stern discipline against the prosecutors in the Gell case (who he strongly implies deserved a harsher punishment than they received) and former D.A. Honeycutt. He spends most of his lacrosse case section analyzing Nifong’s failure to turn over the exculpatory DNA evidence. Mosteller notes the stark differences between the key sections of Dr. Brian Meehan’s two reports, the first of which was issued on May 12, 2006, the second in January 2007. The sections read as follows, with Mosteller’s emphasis added:

Individual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client. Three of the reference specimens are consistent with DNA profiles obtained from some evidence items and the analysis of these specimens is below.

Individual DNA profiles for evidence specimens (item numbers 15772, 15776, 15785, 15816-15818) consistent with male profiles that did not match DNA profiles from any reference specimens and DNA profiles for reference specimens . . . were being retained at DSI pending notification from the client . . . .

“The difference in the italicized language,” Mosteller observes, “is striking” (and is a critical reason why Dr. Meehan and DNA Security are facing a civil suit). “Elsewhere in the report these specimen numbers are identified as obtained from the panties, the rectal swabs, and the combing of the pubic area. The language of the first report suggests inconsequential results; the revised report’s language speaks of significant and exculpatory conclusions.”

The State Bar’s grievance committee brought charges against Nifong for two reasons (the DNA withholding and the improper public statements), but Mosteller contends that “the lion’s share of the work [in exposing Nifong] was done by the discovery statute. Its routine application produced the basis for further requests, and its standard requirement of full disclosure established an expectation of compliance that the trial judge treated as routine. The persistent work of excellent counsel moved the process of further disclosure forward step by step and established, in the process, a record of Nifong’s deceptive statements in court that was at the center of his undoing.”

Mosteller praises the defense attorneys for repeatedly pressing the issue with Nifong in court hearings—giving the DA an opportunity to come clean or seal his own fate by repeatedly lying. He astutely suggests that Nifong’s weeklong delay in handing over the underlying DNA test results (which were due on October 20, 2006, but which weren’t delivered until October 27, 2006) probably had a political motivation—the DA worried his failure to turn over exculpatory evidence would be revealed before the election.

Even once Nifong turned over Meehan’s files, Mosteller notes, “few defense attorneys, most of whom like [Brad] Bannon have minimal scientific training, would have had the ability to do what he did even if they had the perseverance and could commit that amount of time to the task, which he believed was only gaining a better understanding of incriminating but ambiguous scientific results.” The lesson: “for indigent defendants, trial courts should freely grant requests for expert services to help the defense understand the significance of the evidence. Disclosure of data under Brady means little if it cannot be understood. Moreover, if as this case demonstrates, prosecutors may not flag the significance of the data, ready access to expertise is the only meaningful alternative.”

What’s the overall legacy of not only the lacrosse case but also the Gell and Honeycutt affairs?

“Full disclosure solves, or at least helps solve, Brady issues. With regard to all these cases, there is no clear indication that any evidence was given to the defense because the prosecutor chose to provide exculpatory evidence or any court ordered the production of Brady evidence. As best I can determine, even in the Duke Lacrosse case, I can find no discretionary ruling that the trial court made in terms of discovery that was tilted in favor of the defense. Rather, the judges accepted the representations of the prosecutor and denied the innovative or unusual requests of the defense.” [Recall the rejected requests by Judge Stephens to require Meehan to memorialize his conversations, or by Judge Smith to require Nifong to specify when, exactly, he believed the “crime” occurred.] “The judges only granted what the discovery law required and did so in step by step fashion as the defense demonstrated the existence of the evidence and the law’s application to it.”

In Mosteller’s opinion, quite beyond Nifong’s complete lack of ethics, a structural problem exists: “Ethical principles, Brady, and our adversary system require a prosecutor to operate with a type of split personality.” On the one hand, the prosecutor is supposed to do justice and hand over exculpatory material. But “for a prosecutor who has reached the conclusion that the accused is guilty, which obviously should be updated as new evidence is received, there can be no true exculpatory evidence.”

The solution: full open-file discovery, which “is obvious as a remedy for the difficulty of subjective choice in a competitive adversarial environment.”

Mosteller’s conclusion is well-taken:

The disbarment of Nifong will likely help. The sanction imposed sends a strong message, and surely it will encourage future disclosures of potentially exculpatory evidence. However, the message to be taken from North Carolina’s experience, including both its failures and triumphs in prosecutorial discipline, is that broad disclosure laws make the real difference.

I will keep this post up for a few days before folding it behind the glossary; the next major posts will come in around nine weeks, unless something significant in the case occurs before then.

35 comments:

Gary Packwood said...

February 02, 2008

...Broad ethics guidelines about a prosecutor’s responsibility, according to Mosteller, are extremely difficult to enforce: “These cases, including Nifong’s disbarment, demonstrate the difficulties inherent in professional discipline of prosecutors, even in clear cases of ethical misconduct. The ethical duty to ‘do justice’ is hardly a real source of discipline.” Instead, he contends, the three cases “show the importance of concrete standards of conduct...
::
I read this as Mosteller affirming old school wisdom that ethics begins where the law ends and guidelines for prosecutor's responsibility belong in the arena of the law and not ethics.

Mosteller may be correct but hopefully he is recommending at the same time, that guidelines for the recording of grand jury proceedings be written and enforced as a matter of law.

If action is not taken by the Bar with respect to recording grand jury proceeding and prosecutor's responsibility, I fear congress will become involved and we may be faced with the possibility of politically appointed prosecutors and juries.

Whatever the eventual outcome, North Carolina should understand now that there are large numbers of officials and citizens in Durham and at Duke who are living proof that you just can't legislate common sense.
::
GP

kbp said...

Thanks KC

Did I overlook the link to this "second major article"?

Anonymous said...

Believe it or not category:

Moo, Gregory is a dentist in South Bend, IN.

I miss Tortmaster.

Debrah said...

More great work and analysis by Mosteller.

"....if as this case demonstrates, prosecutors may not flag the significance of the data, ready access to expertise is the only meaningful alternative.”

But who is going to ensure that the system will work this way?

Will funds really be available to hire the "experts" for all accused who cannot afford them?

Who will monitor such a program?

I find it particularly chilling, but of course, realistic, when Mosteller says that when a prosecutor has already reached the conclusion that the accused is guilty, there can be no exculpatory evidence.

Nifongian to the core.

Debrah said...

You guys have to check out DSEDuke for their spoof on the campus Sex Workers Art Show.

LIS!

Anonymous said...

Hi, KC

Off-topic: How is your Israel experience? I am not Jewish, but I am not surprised that a man as upright as you is NOT an Israel-basher.

miramar said...

It seems amazing to me that Meehan and DNA Security apparently broke no laws by withholding key evidence in the case. They have been named in the civil suit, but there have been no charges of perjury or obstruction of justice or anything else. I suppose that Meehan's career has been ruined, which is certainly a form of punishment. Nevertheless, Mosteller points out that it was highly unlikely that anyone would figure out what Meehan was up to, so these labs seem to operate with minimal oversight or liability.

Gary Packwood said...

ONE YEAR ANNIVERSARY

Today (actually tomorrow February 4th) is the one year anniversary of the Concerned Mothers Walk of Support in Durham.

What a wonderful event.

I hope the organizers and participants don't think their work and effort has been forgotten.
::
GP

river rat said...

Mosteller's postmortem would be more impressive -- had he spoken up while the crimes against Justice were being committed.

He had a front row seat, but from my recollection - remained silent!

What is his explanation for not addressing the "Gang of 88" or President Brodhead while they were violating the rights of the accused?

William Jockusch said...

Enforcement against police and prosecutors who frame innocent defendants is slim to nonexistent. Consider the present case. Despite all the media attention, and your blog, the sum total of the criminal punishment for all of the culpable parties is one night in jail.

William Jockusch said...

I might add -- I am not convinced that open file discovery is overall a good idea. I think a better world would lack open file discovery, but would have serious enforcement against police and prosecutors, with significant criminal punishment, actually enforced, against wrongs such as those in the Duke case or the Alan Gell case.

Debrah said...

Too much!

Even for the Diva.

LIS!

Anonymous said...

This is when I really miss DIW.

"Sex Workers as Art" is presented at Duke and I really need someone to put it in some kind of perspective.

I am simply at a loss to understand. "Wonderland" is way too nice a description for a place overrun by the lunatic fringe.

John said...

None of these solutions are mutually exclusive.

Open file, a record of Grand Jury proceedings, clear and unbiased ID procedures, and attorney discipline, all need to be strengthened.

So should the private right of action remedy. But absolute immunity prevents it. The argument for strong immunities is facially valid. Prosecutors do a public duty as an instrument of the people and they oughtn't to have to face civil law suits every time they put someone in jail.

But immunity doctrines, especially in conservative circuits, have been expanded to the point where DAs have very little reason to be concerned that any misbehavior, no matter how egregious, ever will be subject to sanction.

A DA has a policy-based duty to exercise prosecutorial discretion in the interests of justice - not just to be a pit bull litigator. There out to be some standard - reckless disregard or gross negligence of that duty - that once established by objective facts would loosen the absolute immunity.

This prospect seems unlikely. So the objective of the Mosteller articles seems to be to create objective rules for individual aspects of criminal proceedings that force a prosecutor to behave as if he takes both aspects of his dual oath seriously, whether he/she actually believes them or not.

Debrah said...

A chat on Congressman David Price.

haskell said...

More on Duke's Offical Strippers.

Sex Show at Duke

Can I turn in my diploma somewhere?

Anonymous said...

Yes the Sex Workers Art Show is a new low in Durham. There's nothing quite like a scantily clad prostitute screaming, "I take it up the butt" at the top of her lungs in the school auditorium to go along with your policy against strippers.

Congratulations should go out to the Broadhead Administration. It's quite a mark they have made on Duke.

Debrah said...

The name Jamie Gorelick rings a bell....from back in the '90s.

Don't remember now, but I think she carries some negative political baggage of some kind.



Duke bolsters legal team in fighting lawsuit

By Ray Gronberg : The Herald-Sun
Feb 6, 2008

DURHAM -- Duke University has added a former deputy attorney general of the United States to the legal team that will defend it against a federal civil-rights lawsuit filed by three members of the 2005-06 men's lacrosse team.

Court papers filed this week indicate that Washington, D.C., attorney Jamie Gorelick will assist two Greensboro litigators in representing the school. They're also the attorneys of record for the Duke University Police Department, Board of Trustees Chairman Robert Steel, school President Richard Brodhead and numerous other university officials.

Gorelick was deputy attorney general during the Clinton administration, and in that capacity was responsible for supervising the country's appointed federal prosecutors.

More recently, she served on the 9/11 Commission. She was a controversial choice for that panel because of allegations she'd helped set rules limiting the ability of federal agencies to exchange intelligence information before the attacks on New York and Washington.

She and the Greensboro lawyers, Donald Cowan Jr. and Dixie Wells, will help Duke try to fend off allegations made by current or former lacrosse players Breck Archer, Ryan McFadyen and Matt Wilson.

The players and their lawyer, Durham attorney Bob Ekstrand, essentially contend that the Duke administration conspired with city officials and former District Attorney Mike Nifong to frame members of the 2005-06 lacrosse team on false charges of rape.

Archer, McFadyen and Wilson avoided indictment, but teammates David Evans, Collin Finnerty and Reade Seligmann did not. They reached an out-of-court settlement with Duke but have filed a lawsuit of their own targeting Nifong and the city.

The two lawsuits have attracted some of the country's best-known litigators. Gorelick is the biggest name involved in the Archer/McFadyen/Wilson case.

But the legal team for Evans, Finnerty and Seligmann includes Barry Scheck, founder of the Innocence Project, and Brendan Sullivan, the one-time lawyer for former Marine Corps Lt. Col. Oliver North.

Lawyers representing the city and Durham Police Department officers in the Evans/Finnerty/Seligmann case have asked a judge to dismiss the players' claims against those defendants. Among other things, they say the city and police weren't responsible for Nifong's misconduct. The players' legal team has until mid-April to respond.

The various lawyers involved in the Archer/McFadyen/Wilson case are still weeks away from trading motions. Ekstrand filed the lawsuit on Dec. 18.

The news of Gorelick's addition to Duke's legal team came this week as the school's dean of undergraduate education, Steve Nowicki, was passing the word that he'd suspended a review of the practices and policies that govern the discipline of Duke students.

Nowicki on Tuesday said he made the decision after Duke's senior in-house counsel, Pamela Bernard, advised him that if the review goes forward now, the 15 students, faculty members and administrators conducting it could wind up having to give depositions in the Archer/McFadyen/Wilson case.

Ekstrand's 404-page filing on the players' behalf alleges that Duke worked with the city to implement a "zero-tolerance" policy against students accused of off-campus misbehavior. He also contends that Duke officials subjected Wilson and Archer to unfair disciplinary action both before and after spring 2006 team party that produced a stripper's false rape allegation.

Nowicki said he hadn't given the people involved in the policy review any warning that "they could be entangled in" the lacrosse case, and so didn't think it was fair to them to let that happen.

He added that he intends to continue the review somehow and is now trying to assemble a strategy for doing so. Nowicki also denied that Bernard ordered the suspension or that the move was meant to help Duke's defense.

Debrah said...

The Sex Worker as art video was really kind of creepy.

They could have at least tried to dress it up.....and try to give it a Neiman Marcus look, but it was just very common.

Even the pole dancer had tiny little boobs. LOL!!!

Was that supposed to be a "pole dancer for intellectuals" or something?

Perhaps Gang of 88's Michael Hardt--the Duke expert on love--can tell us.

You really have to wonder...in light of all that has happened....what the Gang of 88 think about these strippers coming to campus for the pleasure of men.

All those "female bodies", as Farred would say.

LOL!!!

This whole thing is really quite insane.

I want KC to comment on this.

We've never had KC's comments on the topic of sex.

Debrah said...

This Diva letter was in the N&O yesterday:


True and false

Many supporters of John Edwards' former candidacy for president wish to cast blame on the media -- and on The N&O specifically -- for his poor showing. Although the media are often to blame for grotesque bias, this factor did not contribute to the demise of Edwards' candidacy. In fact, The N&O consistently gave him prolific and glowing coverage.
Even former supporters point to the fact that in 2004 Edwards ran as a moderate but this time around shed what he had believed in and assumed a position on the far left. Moreover, disclosures -- in a book by Democratic consultant Bob Shrum -- about John Kerry's experiences with Edwards don't exactly show a man who is authentic.

Another peripheral, yet troubling quirk for voters to overcome was the video clip of Edwards' spending an endless amount of time in front of a mirror touching up his hair. What was that all about?

There was an overabundance of incongruent messages over the years; however, the real reason that Edwards could get no traction is much simpler: The charisma of Barack Obama easily eclipses his fellow candidates.

Like Caroline Kennedy, many of our generation are yearning for someone who is able to bring this country together -- that one "true thing."

Debrah (the one and only Diva!)

John said...

Much like people who are uniformed about the Duke case who still say they think "something happened," it would be wrong to slam Gorelick based on a memory of "negative political baggage."

Gorelick is a fine lawyer and held a key post in the Clinton Justice Department.

As a member of the 9/11 Commission she was criticized for creating the "wall" between the FBI and the foreign intelligence services (NSA and CIA) under the FISA. But in fact, there was no wall. It was more like a Dutch door, where the bottom half was closed when the CIA had info from foreign surveillance that it wished to share with the FBI, and vice versa.

The Bush FBI and CIA chose not to share, even when there was a clear path for them to do so. Many think it was for bureaucratic turf reasons, but after the fact (when the voluminous pre-9/11 signs upon which they took NO action were revealed) they complained that the higher FISA standard for sharing was too onerous. So we got the Patriot Act.

Indeed, when the right wingers in Congress were pressuring for Gorelick to resign from the 9/11 Commission, Republican commissioner John Lehman, Reagan's former Navy secretary, was quoted saying she should not. "Jamie Gorelick has made a very good contribution and she's one of the really savvy, nonpartisan of the bipartisan members," Lehman said.

Also, 9/11 Commission Chair Thomas Kean, former Republican governor of New Jersey, said: "She is in my mind one of the finest members of the commission, one of the hardest working members of the commission and, by the way, one of the most nonpartisan and bipartisan members of the commission, so people ought to stay out of our business."

Debrah said...

H-S:

Foreign aid for Duke

Feb 7, 2008

Duke University is fortunate to have good friends like Bruce and Martha Karsh.

The power couple from Los Angeles, both Duke alums, announced recently plans to give their alma mater a $20 million gift to start an endowment to support undergraduate students from other nations.

The gift is a critical component of Duke's effort to attract the best and brightest students from around the world, some of whom need financial assistance. The Karshes' gift will allow Duke to increase the number of international undergraduates receiving aid to around 90. There are currently 416 international students enrolled in Duke's two undergraduate schools.

"In the past, while we have had some aid for international undergraduates, we have been open mainly to those who could afford Duke," said President Richard H. Brodhead. "We will now be able to admit many more who require financial aid.

Bruce Karsh is chair of the board of directors of Duke Management Company, which manages Dukes endowment, and is a member of the board of trustees' executive committee. The $20 million gift isn't the first he and wife Martha have made to support student aid initiatives. In 2005, the couple gave $12 million to support the university's need-based financial aid endowment for domestic undergraduate students.

The Karshes generosity knows no borders.

Anonymous said...

Another Duke faculty member who supports the Gang of 88: Dante James. See the interview here (Insight News). Quote from the interview:

Interviewer: Has everything settled down at Duke and in Durham now that the lacrosse team controversy is behind you?

Dante James: On the surface, things are back to normal but, unfortunately, both the university and some of the professors who had the courage to confront the issue are dealing with various lawsuits.

LarryD said...

The name Jamie Gorelick rings a bell....from back in the '90s.

Don't remember now, but I think she carries some negative political baggage of some kind.


Oh, yeah. Clinton administration, Deputy AG, "the wall", 9/11 commission, could be the same one.

Anonymous said...

KC, Did you catch the news related to the "Sex Workers Art Show" at Duke on Sunday ? Sponsored by the "Angry" Women's Studies Dept, Duke Women's Center, Sexual Assault Support Services, and the Student Health Center.

This has to be the absolute pinnacle of irony and stupidity. Here is Moneta's comment when asked why Duke would hold this show after the LAX case:

"Larry Moneta, Duke's vice president for student affairs, said the performance "raised issues for discussion." Asked about the difference between the art show and the lacrosse team's hosting strippers, he said, "one served the purpose of personal gratification and the other had educational value."

The show, according to Shalin and Larrey's description, and clips posted on YouTube, was well received by the audience. The head of the show, who goes by the name Annie Oakley, said most of the performances were readings that described performers' experiences in the sex industry. The performances also included a male stripper who crouched on his hands and knees in a kiddie pool and appeared to put a lit sparkler in his rear end. "

I guess Moneta thinks a sparkler in a guy's butt is educational. The Duke Adminsitration certainly brings a whole new meaning to the term "Assclown".

Think of the outrage if the current men's Lacrosse team decided to sponsor this exact event.

Anonymous said...

KC> can you comment about the latest story coming out of Duke about a sex industry show they had last weekend? The hypocrisy of the Administration is astounding!

Kyle Hays said...

Jamie Gorelick was the lawyer who wrote the policy that kept federal agencies from sharing information pre-9/11 on the hijackers that destroyed the WTC.

http://en.wikipedia.org/wiki/Jamie_Gorelick

AF said...

Alas, Duke, Johnny Boy Burness, and the honorable Prez-i-dent BroadHead strikes again. A sex worker's art show at Duke. How ironic. What were they thinking??????????????
Undoubtedly, this "exposure" was sponsored by the Gender and Anger Studies departments. It seems to me that Duke has a bit of a double standard when it comes to a strip show--school sponsored is acceptable, student sponsored is sexploitation.
If this isn't clear evidence that the current administration and most of the faculty are unfit to serve, what is? This crowd has serious issues. Then again, parents who continue to allow their children to attend this insanity have issues as well.
Get a life. Take care of your kids. Don't send them to floor 0 of the Duke Care Clinic! Oops, that's where the administration is located.

AF said...

I will never cease to be amazed by the City of Durham's response that the DA was responsible and not the PD or city council. I would love to search police records for aiding and abetting. Anyone who was charged or convicted should immediately sue Duhmb for a double standard. OK, they couldn't monitor everything Mikey did but, hey, it was not a one shot wonder. This debacle took place over MONTHS. Blind, deaf, and dumb is not really a valid defense. Time for them to suck it up and change policy. If they don't want to fork over big bucks, they need to reign in an out-of-control PD and DA's office and then put their own house in order. It is highly probable that all the three student-athletes and their families want is the assurance that no other families endure the horror that they endured for nearly two years.
Chew on that Council members. Take a reality pill and get a life.

Debrah said...

Mikey has guitar equipment valued at $5,000. Such hot frets and strings!

And now he's removed himself from his mother's will.

Nothing can stop Mikey from becoming a true bohemian!



H-S:


Durham's disgraced former DA provides details in bankruptcy case

Feb 8, 2008

DURHAM, N.C. -- Disgraced former prosecutor Mike Nifong said Friday he was removed from his mother's will amid lawsuits stemming from his prosecution of three innocent Duke University lacrosse players on rape charges.

The former Durham County district attorney provided details about his property and other assets during a hearing into his $180 million bankruptcy protection filing. Nifong said he will not get an inheritance because he asked his mother to take him out of her will.

Nifong also discussed land that his wife owns in Ashe County and estimated that he has guitar equipment was worth $5,000.

Nifong filed for bankruptcy last month citing more than $180 million in liabilities, most of it the estimated damages in a lawsuit filed by the three falsely accused lacrosse players. If the bankruptcy judge determines Nifong willfully and maliciously injured the players, bankruptcy rules won't protect him from civil litigation.

No decision was made Friday. Nifong and attorneys involved in the case declined comment after the hearing.

The lawsuit accuses Nifong, the City of Durham, police investigators and others of conducting "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history."

Charles Davant, a lawyer representing former players Collin Finnerty and Dave Evans, asked Nifong during the hearing whether he disagreed with the accusations in the lawsuit.

"It's certainly disputed," Nifong said.

Last month, a judge removed Nifong as a defendant in the players' lawsuit but said Nifong could again be added to the suit depending on the outcome of his bankruptcy case.

Nifong won indictments after a stripper hired to perform at a March 2006 lacrosse team party reported being raped, but the case unraveled amid the accuser's constantly changing story and a lack of evidence.

State prosecutors eventually took over the case and dropped all charges against Finnerty, Evans and Reade Seligmann. Attorney General Roy Cooper went a step further, saying the players were innocent victims of Nifong's "tragic rush to accuse." Nifong was later disbarred for his handling of the case and spent a night in jail for lying to a judge.

In his bankruptcy filing, Nifong lists liabilities of $30 million for each of the cleared players as potential damages in their lawsuit. Another $90 million in liabilities is cited as possible damages in a second lawsuit filed by three other players who were not charged but allege emotional distress.

Debrah said...

A programming note to all Wonderland readers:

HBO debuts tonight at 8 PM the movie "Bernard and Doris" starring Susan Sarandon (as Duke) and Ralph Fiennes (as her butler Bernard Lafferty).

This film examines the life of the tempestuous tobacco heiress and her final relationship.

"Bernard and Doris"........is a tale of the bond that developed between two damaged souls after the alcoholic Irish butler showed up in 1987 looking for a job from Duke, whose wealthy father, James B. Duke, was benefactor of Duke University.

mac said...

Gorelick's issue of information-sharing likely has it's roots in the Posse Comitatus Act of 1878.

It was likely made an issue by the FBI's use - (under Janet Reno) - of drug interdiction laws used against the Branch Davidians, as there were Army forces (helicopters, tanks etc.) used against private citizens on the provably false premise that the Davidians were manufacturing methamphetamines and other illegal narcotics.

This separation was untimely, and the eventual events of 9/11 can be tied to reaction against the misuse of federal forces employed at the expense our own civilians, the reaction of the country to this misuse of federal forces, and the resulting informational firewall itself, promulgated by the person of Janet Reno and Louis Freeh: these led to the further collapse of communication between relevant agencies.

mac said...

Addendum: the Posse Comitatus Act was primarily used to keep armed services personnel from being forcibly recruited into local law enforcement - something that happened at Waco, as a local issue was broadened by an incompetent ATF
(incompetent because they knowingly sent their own men into an ambush) and what was arguably was a local issue became a federal issue.

Still, drug laws were made with this in mind, as local law enforcement was allowed to interdigitate their efforts with federal drug enforcement policies.

Unfortunately, every action has unintended consequences, and Gorelick et al likely attempted to hermetically seal the CIA from performing its duties against American citizens within the United States.

Some of these - Gorelick perhaps - would argue that the use of Federal resources against the conspirators of the Duke Hoax would constitute a kind of breach of the Posse Comitatus Act, and one might expect those kinds of arguments against the federal prosecution of the accused collaborators.

However, I would argue that the Hoaxers used fabrications manufactured beyond the borders of North Carolina (the media, Nancy Grace, New York Times et al) to secure the Hoax, and as such would rightfully invite federal interdiction.

Debrah said...

The N&O has lots of Triangle blogs. One is called "Bull's Eye" which relates to Durham.

I was skimming the site and could not resist leaving a post.

I know it's naughty, but how else can one get a response from the editors as to why this woman wasn't fired long ago?

Here's the post....for it might be taken off the site as soon as she sees it.
*********************************************

Sunday, February 10, 2008
Durham. The windy city. (Today, at least).
Hold onto your hats, people, it's crazy windy outside.

As of 2 p.m. today, several trash cans from the Mobil gas station on Hillsborough Road had been blown into neighboring businesses and the traffic light at 9th and Main was out.

Forecasters said yesterday that wind speeds could reach 40 mph today. If my flying hair and wobbly car told me anything, I would say their estimates were about right.

That's all for my non-scientific weather update. Stay warm out there!

Posted at 02:30 pm by Samiha Khanna in Just for Fun Bull's Eye
1 comment | Permalink



The Diva left this reply:

Thanks, Ms. Khanna.

Indeed, the entire Triangle was subject to strong winds on this day.

May I make a suggestion?

Please stick to reporting on the weather.

Judging by the horrific damage resulting from your brand of "reporting" on the Lacrosse Hoax in the Spring of 2006, many of us N&O readers didn't expect you to still be employed by any reputable news organization.

By the way, did you ever apologize for the inept and unprofessional story you wrote about that "student" Crystal Mangum? That anonymous "victim"?


The N&O certainly has extended enormous largesse your way and many have been repulsed by this fact.

Gary Packwood said...

Difficult to get a straight answer from attorneys about grand jury members who may aggrieved with the DA.

Apparently Grand Jury members can sue!

Should we assume that Grand Jury members in Durham may do the same?


Feb. 13, 2008, 6:22PM

Jurors file suit to disclose evidence in Medina case

By BRIAN ROGERS
Copyright 2008 Houston Chronicle

Members of a Harris County grand jury who indicted Texas Supreme Court Justice David Medina and his wife in January on charges stemming from the fire that destroyed their Spring home have filed a lawsuit for the right to publicly disclose evidence they considered in handing up the indictments.

By law, proceedings before grand juries are usually required to be kept secret.

Hours after the Medinas were indicted, Harris County District Attorney Chuck Rosenthal said the charges would be dismissed due to "insufficient evidence."

Assistant District Attorney Vic Wisner has repeatedly said he continues to investigate the circumstances of the fire.
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