Sunday, December 31, 2006

The Wendy Murphy File

To suggest [the indicted players] were well behaved: Hitler never beat his wife either. So what?
--“The Situation,” 5 June 2006

I bet one or more of the players was, you know, molested or something as a child.
--“CNN Live,” 3 May 2006

I never, ever met a false rape claim, by the way. My own statistics speak to the truth.
--“The Situation,” 5 June 2006

Three elements of this case distinguish it from its high-profile criminal counterparts. First, the behavior and statements of the students’ own professors were cited as grounds for a change of venue—an action all but unprecedented in modern American criminal law. Second, blogs have played an important (and, I would argue, helpful) role. Third, the 24-hour cable news networks seized upon the case from the start, and have continued commentary more sporadically thereafter.

Sometimes, these shows have offered quality commentary—the “Abrams Report” early on, some broadcasts of “Greta” in recent weeks. Often, however, these programs feature little more than talking heads, with one adopting a pro-prosecution slant and another praising the defense.

A frequent guest on MSNBC, FOX, and CBS has been Wendy Murphy. Usually described as a former “sex crimes prosecutor” and law professor at Boston’s New England School of Law, she’s actually an adjunct professor, an inconvenient fact she rarely, if ever, reveals. Murphy defended Nifong in a recent USA Today op-ed—and her remarks were eviscerated by Liestoppers.

Murphy’s bizarre claims to USA Today prompted me to perform a Lexis/Nexis search of her myriad case-related appearances. The results were deeply disturbing. In addition to the outrageous quotes highlighted above, on at least 18 occasions over the past nine months, Murphy has made demonstrably untrue statements. She also has engaged in a pattern of wholly unfounded speculation and has routinely denigrated due process.

Given that the preamble to the Massachusetts State Bar’s Rules of Professional Conduct states that “a lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice,” Murphy’s behavior raises some serious questions:

  • What sort of network would put such a figure on the air?
  • How could the Massachusetts Bar license such a figure to practice law?
  • How could Dean John O’Brien of New England School of Law allow such a figure to teach future lawyers?

Untrue Statements

Section 3 of the Preamble to the Massachusetts State Bar’s Rules of Professional Conduct states: “As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.”

Murphy, on the other hand, has regularly gone on national television and cultivated not knowledge but its opposite, over and over again offering factually inaccurate statements.

1.) (22 December 2006) “One of the reasons I think she should be thought of as fairly credible is that she rejected a 2 million dollar plus offer by people on behalf of Duke at the outset.”

In fact, the accuser told police on June 30 that she had never been offered any money, by anyone, to drop the case.

2.) (1 May 2006) “All the photographs showing how really fine she was when she left scene were doctored, where the date stamp was actually fraudulent.”

In fact, these photographs have been cited in various defense motions, and even Nifong hasn’t challenged their veracity.

3.) (11 April 2006) “You know, these guys actually . . . some of them have been, according to neighbors, reportedly been involved in not only carousing activity but other sexual offenses.”

I am aware of no statement, by any neighbor, accusing any of the players of involvement in “other sexual offenses”; the Coleman Committee Report established that they had no such records.

4.) (19 April 2006) “All of them took the Fifth. All of them refused to cooperate. All of them refused to give a DNA sample, until the court produced an order compelling them to do so.”

In fact, Dave Evans, Dan Flannery, and Matt Zash gave multi-hour statements to the police, voluntarily gave DNA samples, and offered to take lie-detector tests. No player has invoked the Fifth Amendment at any point in this case.

5.) (17 April 2006) “These kinds of [photo] time stamps . . . could be off by a wide margin. But it’s important to note here the other woman involved here has heard this spin, if you will, by the defense, and has said ‘That timeline is way off.’”

In fact, while in two early interviews Kim Roberts criticized the players and their attorneys, she never made the statement, or anything resembling it, that Murphy attributed to her.

6.) (19 April 2006) “If you think that I would believe for a minute the spin coming out of one of these defense attorneys, given their silence around the DNA report, their deafening silence and lawyering up in the immediate aftermath of the crime.”

In fact, most of the players waited more than a week after the party to retain counsel.

7.) (17 April 2006) “Brett and Matt happen to be the real names of two of the captains who lived in that home.”

In fact, the three residents of the house were named Matt Zash, Dan Flannery, and Dave Evans.

8.) (21 April 2006) “It could have helped her, if she had been drunk . . . but she clearly wasn’t.”

In fact, the accuser informed UNC doctors that not only was she drunk, but she followed the dangerous course of consuming alcohol while taking Flexeril, risking side-effects that included badly impaired judgment.

9.) (27 April 2006) “It was because a broom handle was used, which by the way, doesn’t produce DNA when you put it inside someone.”

The search warrant for the lacrosse house contained no mention of a broom; and at no point in her myriad stories did the accuser claim assault by a broom.

10.) (2 May 2006) “The broomstick DNA has not yet been revealed.”

In fact, no “broomstick DNA” exists, since the police never seized a broomstick.

11.) (5 April 2006) “She had a torn genital area.”

In fact, in a recent court filing, even Mike Nifong conceded, “There is no scientific or other evidence independent of the [accuser’s] testimony that would corroborate specifically” a charge of rape.

12.) (24 May 2006) “Over 99 percent of cases indicted are in fact legitimate; the guys are guilty.”

In fact, no credible study exists contending more than 99 percent of people indicted are guilty.

13.) (16 May 2006) Remember, this is the guy [Dave Evans] who the victim said she’s 90 percent certain he assaulted her, and then as it turns out, she also apparently described that she scratched him, and we find his DNA under her fingernails.

In fact, the DNA report could not exclude Evans; no definitive match existed, as Dr. Brian Meehan made clear in his December testimony.

14.) (11 May 2006) “According to Durham president, the president of the university [Duke?], he said March 22 in a press release, many players weren’t there that night. Well, what does that tell us? It tells us the defense motion [on the lineup] is a bunch of nonsense, because if many players weren’t there, it’s a darned good chance if this was a hoax that she could have gotten it wrong.”

In fact, Richard Brodhead made no statement, of any kind, about the case on March 22; and he never claimed, one way or the other, to possess knowledge on who did or did not attend the party.

15.) (2 May 2006) “She was under the influence of a date rape drug.”

In fact, a toxicology report indicated no such finding.

16.) (13 June 2006) “The defense, very early on, filed a motion--I’ll call it a motion to shut up the prosecutor--so the prosecutor could suffer a suppression of evidence, a motion to dismiss the charges, as punishment for speaking publicly.”

In fact, as this library of defense motion reveals, no such motion exists.

17.) (22 June 2006) “The defense today, if this really is a big hoax, could have said to the judge, in writing or verbally, ‘Judge, I want a trial date ASAP.’ Call it a speedy trial motion; call it whatever you want. They had a right today to ask that this case go to trial immediately. And the whole thing would be over by August.”

In fact, North Carolina does not grant defendants such a right—and, contrary to Murphy’s repeated assertions, Reade Seligmann’s attorney, Kirk Osborn, filed such a motion.

18.) “And maybe what she said, which makes her particularly credible, is, ‘These guys didn’t ejaculate on or inside of my body,’ which means she deserves extra credibility because no one’s suggesting that she lied about whether there would be DNA found on her person.”

In fact, depending on which story she happened to be telling, the accuser claimed that either one or two of her alleged attackers ejaculated.

The above 18 items involve incorrect statements of fact, not peculiar opinions. Again, I ask:

  • What sort of network would put such a figure on the air?
  • How could such a figure be licensed to practice law?
  • How could New England School of Law, which describes itself as an “educational community characterized by substantive instruction with a strong foundation in ethics,” allow such a figure to teach future lawyers?

Wholly unfounded speculation

Quite beyond her factually inaccurate statements, Murphy has engaged in a pattern of wholly unfounded speculation—imagining evidence that she would have no reason to believe exists, or events that she would have no reason to believe occurred. Examples include:

1.) (19 June 2006) “Let me tell you what I think [Nifong] probably has—statements from some of the players who are probably cooperating because they actually have a conscience and think it matters when you tell the truth. And I bet she has GHB in her blood.”

2.) (26 Dec. 2006) “There’s a good chance a few of [the players] actually saw what happened and may well be cooperating.”

3.) (26 Dec. 2006) “Are there photographs? We know there were before photographs and after photographs. There’s a chance there are during photographs.”

4.) (5 April 2006) The players were “thinking, ‘I was entitled to do this. I’m a member of a wealthy white boy’s school in a community that allow me to do what I want when I want. They’ve gotten away with a lot for a very long time. Why not go home and celebrate?’ . . . The e-mail shows that these guys were of the mind that whatever had happened to this woman was just another day at the beach. They’ll rape her, sodomize her and tomorrow they’ll kill her.”

5.) (6 April 2006) “Either [Coach Mike Pressler] didn’t tell [Duke administrators] the whole truth about what happened, he helped the guys cover up or encouraged it.”

6.) (11 May 2006) “[The accuser] said I’m 100 percent certain it was this guy and that guy. And the third guy I think who’s about to be indicted is apparently named Dan. There are four Dans on the team. I want to put some money on the fact that a Dan will be indicted next week.”

7.) (9 April 2006) “If the DNA isn’t going to match, they wouldn’t need to do this. It’s almost comical that they think a photograph is proof positive that a rape didn’t happen. It’s not a smoking gun. It’s a muddying of the waters.”

8.) (10 April 2006) “What [the players] did was clam up and say, ‘Let’s stick together so we can get away with this.’”

No evidence exists to substantiate any of the above statements.

Denigrating Due Process

Section 3 of the Preamble to the Massachusetts State Bar’s Rules of Professional Conduct states the following: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

Murphy, on the other hand, has exhibited what borders on contempt for due process, as the examples below suggest.

1.) (August 7) “How about the defense attorneys shutting up.”

2.) (May 2) “Stop with the presumption of innocence. It doesn’t apply to Duke . . . When they make administrative decisions about student behavior they don’t owe them any due process.”

3.) (May 1) “I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you’re a liar.”

4.) (May 1) “Defense attorneys lie with impunity.”

5.) (April 10) “These guys, like so many rapists—and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”

Occasionally, Murphy has offered statements that, with passage of time, come across as unintentionally ironic.

On August 7, for instance, she asserted that “the defense attorneys are hiding [DNA reports].” We now know that someone was hiding DNA material—but it wasn’t the defense. And on June 19, she stated, “I want to vote [Nifong] up. Whatever, you know, next rung of the ladder prosecutors can go at, he deserves to be promoted and celebrated.” In light of the state bar’s filing of ethics charges, I doubt many people would consider Nifong a suitable candidate for promotion.

Again, I ask:

· What sort of network would put such a figure on the air?

· How could such a figure be licensed to practice law?

· How could New England School of Law allow such a figure to teach future lawyers?

Saturday, December 30, 2006

Washington Post: Drop the Charges

There aren’t many divisive issues on which the Washington Post and Washington Times fully agree. But in a stunning editorial in today’s paper, the Post demands that Nifong drop all charges and accuses him of prosecutorial misconduct.

The editorial, thoughtfully, plays off a quote from former Attorney General and Supreme Court Justice Robert Jackson:

The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.

These words, the editors realize, “ring disturbingly true today” about Nifong’s conduct. “It’s been clear for months that Mr. Nifong’s case—to the extent he has a case—is riddled with flaws that raise serious questions about his motives and ethics.” (It would have been nice to have heard from the Post on this score before the election.) As have many editorial boards, the Post seizes upon the investigation’s most serious procedural violation—the “shockingly shoddy,” no-wrong-choices lineup. And the editors make clear they don’t buy Nifong’s excuse that his refusal to turn over the exculpatory DNA evidence was an innocent oversight.

More broadly, the Post correctly observes that Nifong “badly misconceives his job as a prosecutor, which is not simply to robotically prosecute claims or seek a conviction at all costs but to make an independent analysis of whether justice would be served by continuing with the case.”

With the voices of the Capitol’s left and right speaking as one, AG Gonzales has more than enough political cover to launch a federal investigation into Nifong’s misconduct.

"The Prosecutor Is Guilty"

After long ignoring the grossly unfair treatment of a resident of its state, Reade Seligmann, the Newark (N.J.) Star-Ledger weighed in this morning with a blistering editorial about Mike Nifong, whose behavior, the editors contend, can only be explained as “the product of incompetence, overzealousness or outright misconduct.”

The Star-Ledger contends that Nifong apparently forgot that “prosecutors are supposed to put justice first—not winning re-election.” The editorial runs through a list of Nifong’s misconduct, culminating with his entering into an agreement with Dr. Brian Meehan to intentionally withhold exculpatory DNA evidence from the defense.

As for now, the Star-Ledger demands that Nifong “be removed from the case,” and it concludes with an even stronger recommendation:

North Carolina law allows the trial judge to drop charges, remove lawyers from a case and, in the extreme, remove a district attorney from office for “willful misconduct.” Serious consideration should be given to the latter.

Three thousand miles away, the editorial board of the San Diego Union-Tribune reached a similar conclusion. The paper welcomed recent developments, wherein “the spotlight finally can shift to the most troubling behavior in this matter: the DA’s repellent assault on the civil rights of the Duke trio.”

The Union-Tribune editors understand the magnitude of Nifong’s misconduct, and what distinguishes his behavior from normal prosecutorial wrongdoing: “Among a stunning list of ethical transgressions, Nifong can be accused not just of withholding exculpatory evidence but of manufacturing damning evidence.”

The editors correctly recognize the key procedural flaw of the case: the April 4 lineup, and Nifong’s order to police that it be confined to lacrosse players. And as for Seligmann’s “airtight alibi”? Nifong “simply didn’t care.” The admirable conclusion:

This isn’t just bad judgment. It’s a shocking abuse of power. Given his plain motive – Nifong won re-election by depicting himself as the crusader who wouldn’t let privileged white kids get away with brutalizing a young black woman – it is also despicable in its raw demagoguery. All this is why we look forward to the Durham DA having his own day in court.

The Last 200 Hours

The last 200 hours have witnessed a tumultuous turn of events in the case.

(1) In a move that seemed a desperate response to the Meehan DNA revelations, Mike Nifong dropped rape charges and provided a theory of the crime that contradicted all previous accounts of the accuser.

(2) Apparently deciding that enough was enough, the state bar publicly filed an ethics complaint, asserting that “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . .”

(3) In the second half of a devastating one-two punch, the North Carolina Conference of District Attorneys, Nifong’s peers, announced that “it is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority.”

(4) The defense filed a motion to summon Brian Meehan as its own witness, blocking Nifong’s effort to pursue the case the “good old-fashioned way” by pretending as if DNA evidence didn’t exist.

A few items of note:

The State Bar’s complaint. Bar procedures require a trial to occur between 90 and 150 days of filing the complaint (i.e., anytime between March 28 and May 27). Disciplinary trials normally are open, with cameras allowed in the courtroom.

The timing of the complaint raises another interesting question: What did Nifong reveal to his political allies before Election Day? The district attorney obviously knew that he was under investigation well before November 7. When he appeared before the Durham Committee on the Affairs of Black People to solicit its support, did he inform the city’s African-American leadership that the Bar likely would bring charges against him? If not, does the Committee now feel deceived by Nifong?

What of the People’s Alliance, Durham’s self-styled good-government organization? The so-called pro-gay rights group enthusiastically backed the candidacy of a DA who welcomed an outspoken homophobe into his inner circle. Will the P.A. now abandon its good government credentials as well, or will it demand Nifong’s resignation?

And will the Group of 88’s professorial wall of silence crumble? Will even one of these professors, who so gleefully rushed to judgment last spring, now retract their signatures from the document?

The District Attorneys’ Conference. Even more than the publication of the State Bar’s complaint, this action is unprecedented.

Intriguingly, the Conference didn’t demand that Nifong recuse himself from the case solely because of the ethics complaint—the letter deemed Nifong’s recusal necessary “in light of all the developments of the Duke Lacrosse case, including the filing on December 28, 2006.” [emphases added]

Conference president Garry Frank described the document as “the unanimous statement of the officers of the Conference of District Attorneys,” and confirmed that the executive board reviewed Nifong's handling of the entire case.

The defense motion. Continuing his sycophantic attitude toward Mike Nifong’s misconduct, NCCU law professor Irving Joyner (the NAACP’s “case monitor”) proclaimed that the dismissal of the rape charges could enhance Nifong’s case. Said Joyner:

Now, they don’t have to establish that there was penetration committed against the accuser . . . In addition to that, now they don’t have to deal with the DNA or the lack of DNA evidence. And with the rape shield statute, it’s unlikely that information will even come before the jury to consider.

Some might wonder how inventing a wholly new story nine months after the fact could strengthen Nifong’s case. Anyhow, the defense motion gives the lie to Joyner’s assertion that Nifong’s manipulation will allow DNA to vanish from consideration.

Mike Nifong, of course, wasn’t always so dismissive about the importance of DNA evidence. After all, this is the same man who stated:

· March 23 motion: “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

· March 28: “There won’t be any arrests before next week. I have decided not to make arrests until DNA evidence is back.”

· March 29: “We are awaiting DNA results from tests that have been done so far. We expect those next week, and depending on the results of that, it may be necessary to extend the scope of the search, but we at least have an idea of the direction which that would go.”

Nor was Nifong always so dismissive of the significance of Dr. Meehan’s findings. On May 3, for instance, he commented to WRAL, “My guess is that there are many questions that many people are asking that they would not be asking if they saw the [DNA] results. They’re not things that the defense releases unless they unquestionably support their positions.”

And think back to John Stevenson’s front-page, August 1 opus in the Herald-Sun—which obviously came from leaks from Nifong’s office. The article breathlessly discussed “previously undisclosed [sic] matches” of DNA, while obtaining quotes from two figures eager to spin matters in a pro-Nifong direction—Joyner and lawyer John Fitzpatrick, a Nifong campaign contributor. Fitzpatrick asserted that DNA evidence would give “more credence to the prosecution’s theory that something happened. It is a potential link to a crime. It is a big thing.” To Joyner, DNA results “would tend to support the prosecution’s case.”

Neither Joyner nor Fitzpatrick, of course, any longer celebrate the importance of DNA to the case.

The defense motion offers a sense of why Nifong, too, no longer wants to talk about DNA. The motion opens with a devastating summary of Meehan’s equally devastating December 15 testimony. It notes that, according to Meehan, “the best way to approach forensic DNA analysis of evidentiary items is first to determine who can be excluded as a source.” In this case, the three players targeted by Nifong, along with all other members of the 2006 Duke lacrosse team, would comprise the excluded group.

The motion then walks the reader through the specifics of Dr. Meehan’s testimony, with six items of the rape kit showing evidence of the DNA from anywhere between one and four unidentified males. One of those males, ironically, appears to have been Meehan himself, showing how easily transference of DNA can occur—in a lab with many protections, or in a bathroom trashcan with none.

The motion concludes that Dr. Meehan’s testimony would impeach the myriad, mutually contradictory, versions of events presented by the accuser (most or all of which appear to have claimed no sexual contact for a week prior to the party). Moreover, the defense motion states Meehan would be expected to discuss the rationale behind the decision he entered to with Nifong (a/k/a the “client”) to intentionally not report the exculpatory DNA evidence.

No doubt Professor Joyner will soon explain why all of this information is irrelevant to Nifong’s case—along with how the joint censure from the Bar and the DA’s Conference is routine business. But few others seem willing any longer to adopt that view.

Friday, December 29, 2006

Conference of D.A.'s: Recuse

In yet another extraordinary development, the North Carolina Conference of District Attorneys has issued a public letter to Mike Nifong, demanding that he recuse himself from the lacrosse case:

It is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority.
I am unware of any such document, in any state, issued to a district attorney prosecuting a case by his fellow chief prosecutors. The symbolism of this move is obvious: the state's elected District Attorneys have issued a public statement of no confidence in Mike Nifong.

The Reaction

The lead editorial in the New York Daily News—whose editorial board has a centrist, center-left bent—states, “It has become plainly obvious that a gross miscarriage of justice has been perpetrated against the three Duke University lacrosse players who were charged last spring with raping a stripper at a raucous house party.”

Collin Finnerty, Reade Seligmann, and David Evans, the editors assert, “are the targets of an irresponsible prosecution by a race-baiting, politically craven district attorney.” After reviewing the mounds of exculpatory evidence and the district attorney’s procedurally “outrageous” behavior, the Daily News concludes: “Yes, there was a crime here. And Nifong committed it.”

The editorial page of the Charlotte Observer opens with a cartoon lampooning Nifong’s habit of “hiding the evidence.”

The N&O quotes former state Supreme Court chief justice Burley Mitchell, who termed the complaint “truly extraordinary.” He added, “From the time I was Wake County’s elected district attorney until I was chief justice, I can’t recall the Bar filing a complaint against a district attorney for pretrial publicity.” And former Nifong associate Lisa Williams (who earlier in the case offered pro-Nifong remarks) predicted, “I feel like this is the first shoe. And the second shoe is coming.”

The Herald-Sun, which at long last has discovered the existence of Jim Coleman, features the Duke law professor offering a blunt analysis: “I think that early in the case, his conduct clearly violated the rules. I don’t think any explanation he makes can fly.” He predicted that the DHC would find Nifong guilty and sanction him. ““Mike Nifong used to have an excellent reputation among lawyers,” Coleman noted. “For some reason, it seems he lost it on this particular case. It’s too bad it’s come to this.”

Both Coleman and Duke spokesperson John Burness also demanded that Nifong step aside.

John Stevenson: Reporter

In his article on the ethics complaints against Mike Nifong, Herald-Sun reporter John Stevenson implied dubious behavior by the Bar. Wrote Stevenson: “L. Thomas Lunsford II, the State Bar’s executive director, said Thursday’s 17-page complaint to a Disciplinary Hearing Commission ‘speaks for itself.’ But the document was not made public.”

No doubt Stevenson’s usual source, Nifong, didn’t want to release the document. But the N&O had posted it at least five hours before Stevenson wrote his article. So had WRAL.

It would be nice to see the H-S at least go through the motions of journalism.

Analyzing the Complaint

“Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . .”

--The North Carolina State Bar v. Michael B. Nifong, p. 16.

In yet another extraordinary turn of events in a case that has involved many such turns, yesterday afternoon, just after 5.00pm, the North Carolina State Bar announced that it had filed an ethics complaint against Mike Nifong. The filing focused solely on his procedurally improper public statements, which the Bar (correctly) contends violated Rule 3.8(f) of the Code of Professional Responsibility. That provision requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Importantly, the bar complaint also alleges that Nifong’s violations of 3.8(f) were of such magnitude that they ran afoul of Rule 8.4(c) and Rule 8.4(d), which state that prosecutors cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”; or “engage in conduct that is prejudicial to the administration of justice.”

1.) The Timing

The bar was not required to publicly release its complaint. Indeed, the bar could have filed the complaint under seal, with the understanding that the Disciplinary Hearing Commission would address the Nifong matter after the lacrosse case ended.

That the bar acted publicly—and did so out of the blue, not even waiting for its next scheduled meeting, in mid-January—can only be interpreted as an unequivocal repudiation of Nifong by the legal leadership of his state. It is no coincidence, in short, that the complaint was publicly released less than a week after Nifong’s most bizarre move to date—his manipulation of the evidence to drop charges of rape but retain allegations of sexual assault, in light of the December 15 hearing.

In some respects, the symbolism of the filing is almost as important as the substance.

That the bar would act in this manner suggests that the complaint is only the first shoe to drop, and that other actions will be taken against Nifong. If the bar found Nifong worthy of discipline for his extra-judicial comments, then it surely would have to consider an ethics complaint against Nifong for his conspiracy with Dr. Brian Meehan to hide the exculpatory evidence. Given the recent nature of this revelation, no public filing on this matter could occur at this stage, since procedurally, Nifong is entitled to a response period before the bar decides whether to move forward.

Also, the bar would at least have to consider ethics complaints on issues relating to Nifong’s ordering the police to violate their own procedures in the flawed April 4 lineup. Yet it would be unlikely that a complaint would be filed as long as the matter is pending before Judge Smith.

2.) The Specifics

The complaint divides Nifong’s comments into six types of violations. The worst type, it contends, involved the D.A.’s public speculation that a condom might have been used, when he knew or should have known that the accuser had explicitly stated that her alleged assailants did not use condoms (at least in the version of events she was offering at the time).

The two remarks the bar highlights:

(March 31, MSNBC): “If a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.”

(April 11, Charlotte Observer): “I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex.”

With these remarks, according to the bar, “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The bar correctly kept in mind the context of DNA and Nifong’s public statements. In the March 23 NTO and then in public statements on March 27 and March 28, Nifong had repeatedly asserted that DNA existed and would both clear and innocent and identify the guilty. Then, suddenly, the DNA tests came back without a match—and, according to the bar, the D.A. decided to engage in “fraud” and “deceit” to explain away the results.

Consider the ramifications of this wording, and how it would affect any trial or even the February 5 hearings. Defense attorneys do not need to undermine Nifong’s credibility—the State Bar has already publicly associated him with such characteristics as dishonesty, fraud, deceit, and misrepresentation.

In the 17-page complaint—the ethics equivalent of an indictment—the bar laid out the five other ways in which Nifong’s improper statements affected the proper administration of justice:

  • Improper commentary on the lacrosse players’ invocation of their constitutional rights;
  • Improper commentary on the evidence to be presented in the case;
  • Improper commentary about the guilt of the accused;
  • Improper commentary about the “character, credibility, and reputation of the accused”;
  • Improperly making statements that heightened public condemnation of the accused.

In the process, the complaint detailed many of the quotes that close followers of the case long had have found outrageous—and, indeed, that were many months ago indexed, in one of the most important archival developments of the case, by Nancy Kidder.

Cited statements included:

  • “I’m disappointed that no one has been enough of a man to come forward.”
  • One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”
  • There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital. And her general demeanor was suggestive of the fact that she had been through a traumatic situation.”
  • “Somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe, and it was in the course of that struggle that the fingernails—the artificial fingernails broke off.” (the infamous “chokehold” interview)
  • “The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”

The motion itself is here. The cumulative effect of these quotes—inflammatory statement after inflammatory statement; misleading assertion after misleading assertion; inaccurate claim after inaccurate claim—is extremely powerful.

3.) The defendant (Nifong) has a very weak case.

Nifong has offered a variety of defenses for his actions: (1) that he didn’t “accuse anybody of any crime”; (2) that he just wanted to encourage people to “cooperate with the investigation”; (3) that he sought to “effectuate a more accurate public discourse on an issue with great social resonance”; (4) that Rule 3.8(f) doesn’t apply until people are indicted; and (5) his speaking out reassured people that “the community was in good hands with respect to this case, and they did not need to worry about it.”

Item (5), of course, is transparently absurd in light of the bar’s filing. The bar makes short shift of items 1-3, as well.

The complaint spends some more time with item (4), noting that Nifong made at least 10 procedurally improper statements “after suspects had been identified.”

4.) Nifong has become a pariah among serious thinkers about the law.

Two hours before the ethics complaint became public, the AP’s Aaron Beard filed a story filled with condemnations of Nifong from prominent law professors. Beard apparently couldn’t find any law professor to defend Nifong.

Loyola Law’s Stan Goldman: if Nifong succeeds in getting the case to trial, “This guy would be the poster child in public defenders' offices around the country as the quintessential bad DA.”

Duke Law’s James Coleman, the shining light of this case: “I don’t see how any member of the public can have confidence in this case. I think it’s making a mockery of our criminal justice system to permit this guy to keep fumbling along. It’s either total incompetence or it's misconduct on a scale that is extraordinary.”

According to the AP article, even former Nifong enablers such as Woody Vann and Norm Early have essentially ceased defending him.

5.) By making the complaint public, the bar has presented Nifong with a conflict of interest in remaining on the case, since he is now a defendant on ethics charges growing out of his conduct in the case.

The result: he likely will be recuse himself or be removed as prosecutor. Since any member of his office would face the same conflict of interest as Nifong, it’s hard to see how Judge Osmond Smith could allow a Durham assistant district attorney to prosecute the case.

Such a development would bump up the case to the special prosecutions division of the Attorney General’s office. But why would Roy Cooper want to take over a sinking ship? And would any other DA in the state be willing to step in and prosecute the case if Cooper refuses to involve himself? In short, the bar’s actions raise the possibility that this could become the case without a prosecutor—setting the stage for a dismissal.

A final note: readers of the comments section of this blog should recall that DIW reader Kemperman spoke personally with a member of the bar’s executive board several weeks ago, and foretold of this move by the bar. A major hat tip is in order.

A few weeks before the election, Friends of Duke spokesperson Jason Trumpbour predicted that Governor Easley would choose the next D.A.—immediately if Lewish Cheek prevailed, sometime thereafter if Nifong won, given the likelihood of ethics charges. In light of the bar’s actions, Trumpbour looks prescient.

Thursday, December 28, 2006

The Complaint

Some quick reactions, with more detailed analysis to follow.

1.) This filing is the beginning of the end of Nifong’s career as Durham D.A.

The filing focuses solely on his procedurally improper public statements, which the Bar (correctly) contends violated Rule 3.8(f) of the Code of Professional Responsibility. That provision requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Importantly, the bar complaint also alleges that Nifong’s violations of 3.8(f) were of such magnitude that they ran afoul of Rule 8.4(c) and Rule 8.4(d), which state that prosecutors cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”; or “engage in conduct that is prejudicial to the administration of justice.”

2.) There is no reason to believe that the bar will not take other actions against Nifong.

The bar surely would have to consider filing an ethics complaint against Nifong for his conspiracy with Dr. Brian Meehan to hide the exculpatory evidence; given the recent nature of this revelation, no public filing on this matter could occur at this stage.

Also, the bar would at least have to consider ethics complaints on issues relating to Nifong’s ordering the police to violate their own procedures in the flawed April 4 lineup. Yet it would be unlikely that a complaint would be filed as long as the matter is pending before Judge Smith.

3.) The bar dismisses Nifong’s canard that Rule 3.8(f) applied only once he had obtained charges against Reade Seligmann and Collin Finnerty.

First, the complaint notes that many of Nifong’s procedurally improper statements occurred after charges were filed.

Second, the complaint correctly reasons that nothing in the wording of Rule 3.8(f) suggests that it applies only after indictments have been obtained, rather than (as occurred here) once suspects have been identified.

4.) The 17-page complaint—the ethics equivalent of an indictment—is detailed.

The bar contends that Nifong’s improper statements affected the proper administration of justice in at least six ways:

Improper commentary on the lacrosse players’ invocation of their constitutional rights;
Improper commentary on the evidence to be presented in the case;
Improper commentary about the guilt of the accused;
Improperly using hypothetical comments to explain away the existence of exculpatory evidence;
Improper commentary about the “character, credibility, and reputation of the accused”;
Improperly making statements that heightened public condemnation of the accused.

5.) One set of these violations was worse than all the others.

“Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation” in his speculation that a condom might have been used, when he knew or should have known that the accuser had explicitly stated that her alleged assailants did not use condoms.

6.) It’s hard to see how Nifong can remain on the case when he is a defendant on ethics charges growing out of his conduct in the case.

The Hammer Drops

State bar files a complaint against Nifong. Analysis to come, posted by 7pm.

This complaint involves solely the procedurally improper public statements; it's entirely possible that there could be more to come.

Wilmington Star Demands Resignation

The Wilmington Star has become the first North Carolina newspaper to demand Mike Nifong’s resignation as district attorney.

The Star editorializes,
Mike Nifong has demonstrated that he is not ethically or professionally fit to prosecute a littering case, much less the sexual assault case involving three Duke lacrosse players . . .

Hiding behind paper hung over the windows of his office, Nifong issues written statements and refuses to talk with North Carolina reporters. Yet Thursday he gave a three-hour interview to The New York Times.

Nifong doesn’t owe an explanation to the readers of a national newspaper. He owes an explanation to the people who elected him. He owes it to the people of this state.

But he owes them more: his resignation.

Mike Nifong, on the Rape Evidence

In his own words:

December 22: “There is no scientific or other evidence independent of the [accuser’s] testimony that would corroborate specifically” a charge of rape.


March 27: “The information that I have does lead me to conclude that a rape did occur.”

March 29: “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

Nifong would not obtain the SANE nurse report until April 5.

March 29: “The circumstances of the rape indicated a deep racial motivation for some of the things that were done.”

March 29: “There’s no doubt in my mind that she was raped and assaulted at this location.”

These four statements all occurred before the accuser gave her oficial statement to police, on April 6, so Nifong could not have been referring to that statement when he made the above four remarks.

April 12: “I’m not going to allow Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.”

Rule 3.8(f) of the North Carolina Rules of Professional Conduct requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Procedures exist for a reason.

A Switch in Times?

The Times published three articles on Mike Nifong’s latest manipulation of evidence—dropping the rape charge, changing his theory of the crime, maintaining the other charges. The first of the three listed “Duff Wilson and David Barstow” as authors. The other two flipped the names, with Barstow designated lead reporter. The difference in quality as a result of the shift was notable.

The Wilson-led piece appeared on the Times website on the afternoon of December 22. The article noted that Nifong had dropped the charges after Linwood Wilson had interviewed the accuser; it contained no mention that, for inexplicable reasons, this discussion was the first between the accuser and a representative of Nifong’s office about the alleged events of the evening.

The article also seemed to violate the Times’ own policy regarding the use of anonymous sources, granting anonymity from a source “close to the investigation” to offer legal analysis. (I had speculated the source was Linwood Wilson, but someone whose knowledge of the case I trust disputed this guess.) In addition, Duff Wilson included a lengthy quotation supporting the prosecution from Victoria Peterson, who was described as “active in the black community in Durham and . . . a friend of the accuser’s family.” Amazingly, the article never mentioned that Peterson had served as citizens’ committee co-chair for Nifong.

By what possible journalistic standard could noting that Peterson is “active in the black community” be more important than mentioning her intimate connection to Nifong’s campaign?

In the next morning’s article, an interesting change had occurred: Barstow was now listed as the lead reporter, as he would be in the piece that appeared December 24. This article stated that Nifong “has faced relentless and rising criticism for his handling of the case.” After Wilson ignored the effect of Nifong’s action beyond a quote from Joseph Cheshire, The Barstow-led piece stated that the manipulation of the charges “intensified questions about Mr. Nifong himself” from “defense lawyers, defendants’ families and friends, bloggers and many experts.” [emphasis added] In his August magnum opus, Wilson had gone out of his way to avoid any mention that numerous legal experts, wholly unconnected to the case, had criticized Nifong's misconduct.

The Barstow-led articles also, fairly, listed critical aspects of Nifong’s procedural misconduct:

  • The fact that the only player twice identified with 100 percent accuracy wasn’t even in Durham the night of the party.
  • The fact that Dave Evans, despite the accuser’s claims, never had a mustache.
  • The fact that even the normally sycophantic Irving Joyner, Woody Vann, and Herald-Sun editorial page had criticized Nifong (if mildly) in recent days.
  • The fact that Nifong had repeatedly (and, as it turned out, falsely) assured the court, during the spring and summer, that the Meehan tests contained nothing more than what was disclosed.

The piece also, fairly, summarized the depth of defense anger with Nifong’s tactics.

The Times obtained a three-hour interview from Nifong, no doubt a reward for Wilson’s previously fawning coverage. In contrast to earlier Wilson articles, the Barstow-led piece presented the Nifong quotes in an unvarnished fashion, without a pro-Nifong spin. And Nifong unvarnished doesn’t look good. Times readers learned that:

  • Nifong cares little about prosecutorial discretion: “If she came in and said she could not identify her assailants, then we don’t have a case,” but “if she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”
  • Nifong believes in-court IDs months after the fact are superior to contemporaneous photo lineups: “You can’t always tell from a photograph,” since “the only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”
  • Constructing a lineup confined to suspects was OK, because, Nifong mused, “What is a lineup? What if I have no idea who did the assault?”
  • Nifong referred to the accuser as “my victim.”
  • Nifong contended that, summarized the Times, “the defense attack on the DNA report revealed a ruthless strategy aimed at vilifying him and intimidating a victim of a brutal assault. ‘The whole point was the vilification of the district attorney, I believe.’”
  • Despite having the file for months, Nifong pled ignorance about the file’s contents: “When you’re going through these pages,” he said, “and you’re numbering them and making copies, you’re not reading and understanding what’s on every single page.”
  • An excessive workload explained Nifong’s failure to turn over the exculpatory DNA evidence: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (The Times didn’t mention that this excuse was the third different one offered by the D.A.)

Emily Bazelon of Slate considered just one of these quotes (Nifong’s claim that the accuser, rather than the DA, would effectively decide whether the case moves forward) “so basic a misunderstanding of his own job that it raises questions about whether he is even qualified to hold it.”

A few months ago, Bazelon’s colleague at Slate, Jack Shafer, held up the Times’ Wilson-led, transparently biased coverage as an example of flawed coverage, and offered suggestions as to how a paper could acknowledge that it got the early story wrong and then move on. The Barstow-led articles continued the Times practice of ignoring the interplay between politics, Nifong’s strained finances, and the decision to bring the case, and the pieces could have offered quotes from critics of Nifong unrelated to the defense. But the two articles at least ended the Times’ position on this case as a journalistic laughingstock.

As the Times shifted from a pro-Nifong bias to appropriately neutral articles, two other newspapers with national reach hit Nifong hard. USA Today published a biting editorial stating that the case “shows the danger in making snap judgments and should give pause to anyone who cares about fairness in the legal system.”

The editors accused Nifong of having “shamelessly exploited the racially charged atmosphere in the middle of an election campaign,” bringing charges on flimsy evidence, and withholding exculpatory DNA evidence.

As a result, “Nifong's performance raises so many troubling questions that it's time for the North Carolina Bar Association to investigate and for Nifong to step back from the case. If he won't go voluntarily, a judge should replace him.”

Meanwhile, the Washington Times--a paper with considerable influence among conservative circles in the Capitol--unequivocally endorsed a federal investigation into the case. It concluded that Nifong is “losing a case and, if he's not careful, potentially his career.”

From the beginning, the editors noted, the “case seemed odious.” They cited the procedurally flawed lineup and Nifong's refusal to drop charges against Reade Seligmann even after Seligmann produced evidence that proved his innocence. Then came the Meehan testimony, coupled with what the Times considers Nifong's absurd claim that he forgot to turn over the exculpatory material.

Before the February 5 hearing, the editors observed, “Mr. Nifong might come under investigation himself. There have been several ethics complaints filed with the state's bar association and now Rep. Walter Jones is asking the Justice Department to step in. As opposed to Mr. Nifong's case, there seems to be enough evidence for that investigation to move forward.”

Let's hope AG Gonzales was listening.

[Note: For those in the Boston area, I'm scheduled to appear from 5-6pm on WRKO, to discuss the case.]

Wednesday, December 27, 2006

To Nifong

Kathleen Parker, one of the first columnists to examine Nifong's performance through a skeptical lens, has a new column out. She proposes a new verb: "to Nifong.''

"Now," Parker argues, "we can 'Nifong' someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes. In short, when we want to screw up someone's life."

Parker also takes note of Duke President Richard Brodhead's decision to, at last, ask for Nifong to pass the case to a third party. "While official outrage is welcome," she observes, "it seems belated. Where were the passionate protestations when these three young men were being convicted in the court of public opinion? The presumption of their guilt was nearly instantaneous among Duke administrators and many faculty, from whom others in the community took their cues."

Somehow I doubt that having his name remembered as a perjorative verb was how Mike Nifong thought this whole affair would wind up when he was riding high in late March.

Durham "Justice"

Two small, but revealing, anecdotes from this morning's N&O.

The first: Jamal Manta Watson has been charged with killing James Webb and Tauarus Hamlett in August 2005. Assistant District Attorney Beth Koontz told the court that police consider Watson "one of the most dangerous people in Durham."

Watson's bail? $100,000.

The bail for Dave Evans, Reade Seligmann, and Collin Finnerty? $100,000--and that was only after defense attorneys successfully persuaded the court to reduce it from its initial $400,000, or four times the amount assigned to "one of the most dangerous people in Durham."

The second: A 48-year-old Durham man has been charged with two counts of statutory rape and incest, and one count of second-degree rape. (Bizarrely, the N&O doesn't reveal his name, because doing so would also identify the daugher's last name.) Mike Nifong's office alleges that the crimes lasted for more than two years, beginning in August 2004 and running through September 2006. Warrants for the man were issued on September 25.

The warrants were served and the man arrested yesterday--or 92 days after they were issued. That's 92 extra days the man was allowed to spend free. Perhaps Nifong will use the "overwork" excuse that he tried with the Times to rationalize his failure to produce the exculpatory DNA evidence.

Dead on Arrival

Over the past nine months, Mike Nifong has distinguished himself as a figure incapable of thinking much about the long-term consequences of his actions:

  • Need publicity for a cash-starved primary campaign? Make inflammatory, misleading public statements about the case, and worry about violating Rule 3.8(f) later.
  • Need to find someone to indict—any player would do—before the primary? Order the police to violate their own procedures by constructing a lineup with no wrong answers, and worry about explaining the setup later.
  • Don’t want to reveal what the accuser said in the April 11 meeting? Claim repeatedly in open court that the case was never discussed, without anticipating the p.r. damage from stating that indictments were brought without the prosecutor ever speaking to the accuser about events of the “crime.”
  • Don’t want to turn over DNA results casting enormous doubt upon the accuser’s veracity? Enter into an agreement with the lab director to intentionally withhold the evidence, without thinking about possible allegations of obstruction of justice down the road.

Nifong’s recent decision to offer a new theory of the crime—rape didn’t occur, but sexual assault did—fits into this pattern of the D.A.’s short-term approach consistently working to his long-term harm. As the N&O pointed out, the accuser told a different story to every single police officer or medical personnel that interviewed her. Sometimes twenty people raped her, sometimes five did, sometimes three, sometimes two. But the accuser, at least, fairly consistently portrayed rape as an element of any attack that occurred. Now, nine months later, she’s abandoned even that shred of consistency.

It wouldn’t have taken much brainpower to have figured out that the latest manipulation of evidence would backfire. But, as the Herald-Sun revealed, even such obvious consultants as Mayor Bill Bell, Police Chief Steven Chalmers, and Deputy Chief Ron Hodge all learned of Nifong’s decision to drop the rape charges from the media.

It appears as if the D.A.’s circle of advisors has shrunk to the troika of wife Cy Gurney, “investigator” Linwood Wilson, and citizens’ committee co-chair Victoria Peterson. Each has reasons unrelated to the pursuit of justice to prop up Nifong’s crumbling career: Gurney to maximize her husband’s pension; Wilson because no other D.A. would possibly keep such as a figure as a chief investigator; Peterson because no other D.A. would even think of allowing Durham’s resident homophobe access to the city’s levers of power.

The Troika’s thinking isn’t hard to discern: now that the Nifong-Meehan conspiracy to withhold the exculpatory DNA evidence has unraveled, the rape charge no longer is tenable. So drop the rape charge and claim instead that the assault occurred with a foreign object—even though the accuser had never previously made such an allegation.

A few of the most shameless sycophants—Wendy Murphy (could she actually have prosecuted people?) and Durham attorneys John Bourlon and Woody Vann—gave the expected responses, suggesting that Nifong’s retooling the charges would make his case easier to prove, by taking the DNA evidence out of play. But Nifong and the Troika appear to have overlooked even the hapless Dr. Meehan conceding that a cell of his own, perhaps from dandruff, was found in the accuser’s rape kit—and so a claim that a lengthy, violent assault occurred without leaving any trace of the attackers’ DNA is absurd.

Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, termed it “next to impossible” for the accuser’s story to be true if no DNA from her alleged attackers was left behind. He said, “The odds are tiny to zero that you’re not going to find any sample from anybody. It gets hard to imagine that some kind of forced or unwanted activity took place.” Nifong’s decision to drop the rape charges, in short, will not resolve his DNA dilemma, nor help him address obstruction-of-justice charges in the long term.

Moreover, by manipulating the charges to cover his tracks on DNA, Nifong has found himself contradicted by two other critical pieces of evidence in his file. The first item: the video of the April 4 “identification” “procedure.” In that “no-wrong-answers” event, the accuser not only made her selections, but described what each of her alleged attackers did to her. So by dropping the rape charges, Nifong is now in the unenviable position of asking the court to accept the identifications resulting from that “procedure,” but to ignore what the accuser said about her alleged attackers.

The second item: the SANE nurse’s report, which detected no injuries beyond “diffuse vaginal edema” and a scratched heel. Kathleen Eckelt immediately detected Nifong’s problem, and correctly reasoned that the D.A.’s new theory seemed to “insult our intelligence.”

Real rape victims, Eckelt notes, are traumatized, and as a result “can have some trouble with memory, especially if they were under the influence of drugs or alcohol.” But radically shifting stories can often suggest a fraudulent claim, and “it’s a huge leap to go from explicitly saying she was penetrated orally, vaginally, and rectally to suddenly not being sure what body part actually penetrated her.”

In her experience as a SANE nurse, Eckelt observes that patients can have problems with small details, since in “any traumatic event, most people are often so overwhelmed with emotion that they can’t remember all the details all at once.” But in this case, the “recovered-memory” issues are huge—whether the accuser was raped, and how many people raped her. According to Eckelt, “most patients are able to tell me that right up front. And if they’re not sure, they tell me so. Right away. They will say something like, ‘I’m not sure if I was even raped.’ I’ve had patients actually express surprise when I’ve found injuries because they were so unsure.”

In addition to the accuser’s remarkably changing memory patterns, Eckelt notes that sexual assault with an object in stranger rapes is rare—and that the injuries reported in this event are inconsistent with assault with an object.

While “rape does not always leave genital injuries . . . objects used in assaults cause immediate damage. It’s hard to get around that fact. Objects injure skin and tissue . . . They damage the epithelial lining of the outer skin or inner tissue, and break fragile blood vessels, causing redness, swelling, bruising, lacerations (tears), and abrasions. Large injuries, like lacerations, can usually be seen with the naked eye. Tiny, micro-abrasions can be seen with the culposcope. Abrasions will ooze and often bleed.”

Meanwhile, anal penetration by an object “can cause a great deal of injury. Not only will we see redness and swelling but the tears and abrasions are usually larger, encircling the rectal opening, very visible to the naked eye. The anal sphincter is often affected too and we can see delayed sphincter closing.”

Where, Eckelt wonders, are the “significant number of injuries” that would be expected from the latest version of events offered by Nifong? Eckelt’s conclusion is blunt: “Personally, like everything else that has come out about this case, I seriously question this type of hypothesis. Sexual assault by objects tends to leave far more injuries than rape alone.”

Upon hearing of Nifong's latest maneuver, Jackie Brown, one of the most astute observers of Durham politics around, concluded about the D.A.: "He's dead. Put a fork in him, he's done." Between now and February 5, perhaps Nifong and the Troika will come up with another way to manipulate the evidence so as to keep the case alive. But Brown is right--the “no-rape” theory is dead on arrival.

Tuesday, December 26, 2006

Bazelon Targets Nifong

Legal affairs correspondent Emily Bazelon of Slate has just penned a superbly argued column on the lacrosse case and the issue of prosecutorial discretion. Under the subhead of “Just when you thought DA Mike Nifong couldn’t make a worse mess of the Duke rape case,” Bazelon focuses on Nifong’s assertion to the New York Times, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.” In other words, Bazelon correctly notes, “the district attorney is claiming that as long as she continues to accuse any of the Duke guys, he must press charges against them. That’s so basic a misunderstanding of his own job that it raises questions about whether he is even qualified to hold it.” (For those who have followed this case closely, no question any longer exists on that point.)

Bazelon then explains the concept of prosecutorial discretion—an approach that Mike Nifong has had no trouble utilizing in rape cases involving black or Hispanic defendants. Bazelon notes that a system lacking prosecutorial discretion would become overwhelmed: “Courts don’t have the resources to sort through every allegation. And they shouldn’t have to, given the damage criminal charges can inflict to the accused’s reputation, even if they fall apart at trial or earlier.”

Bazelon recommends taking the general need for prosecutors not to press forward with cases where they have shaky or non-existent evidence, “and raise it to the nth power in the Duke case,” given the mounds of exculpatory evidence that exists. Moreover, she argues, the “woman’s new story too conveniently explains away the lack of DNA evidence—if there was no rape, then that’s why none of the men’s cells can be found in the rape kit.”

The stubbornness that Nifong has exhibited in this case, concludes Bazelon, “is just as misguided, in its own away, as that of the prosecutor who refuses to investigate a rape charge because he can’t take a woman’s accusations seriously.”

L.A. Times: Drop the Charges

The paper with the nation's fourth-largest circulation total, the Los Angeles Times, this morning published a blistering editorial demanding that Nifong dismiss all charges and that those who enabled him "engage in an examination of conscience."

Nifong’s bizarre decision to drop the rape charges but to retain sexual assault and kidnapping charges, the Times correctly notes, “
further undermined his already sagging reputation for fairness.”

After a throwaway line (“we may never know exactly what happened the night of March 13”—well, yes, but we certainly know what didn’t happen), the Times moves in for the kill:

What is clear is that Nifong, whose election campaign for a full term overlapped with the investigation, lost control of his tongue and participated in the transformation of this incident from a case into a cause — usually an ominous development for the administration of justice.
The Times notes the litany of “other lapses,” including the DNA coverup and the inexplicable decision for the lead investigator on the case (Nifong himself) to wait nine months to have someone from his office interview the accuser. That when this interview occurred she dramatically changed her story (yet again) “should have been the fatal blow to the prosecution.”

Rather than continue his peculiar crusade, the Times urged Nifong “to focus instead on how the case went off the rails.” In my opinion, this would be a task better suited for the Justice Department and the North Carolina State Bar.

The Times concludes with a call I hope will be echoed by others in coming weeks:

Nifong isn't the only one who profitably could engage in an examination of conscience. Those who seized on this case as an emblem of a "larger truth" — a racial double standard in rape prosecutions, the historical exploitation of black women by white men, the arrogance of adolescent privilege — did not contribute to a clarification of the factual questions that are at the heart of any criminal case. It may be true, as a Washington Post feature put it, "she was black, they were white, and race and sex were in the air." But in a criminal case, atmosphere is no substitute for evidence.

Those who could most profitably engage in an examination of conscience? The Group of 88. It’s high time for Duke alumni to call upon the University to begin enforcing Chapter Six of the Faculty Handbook, which opens with the following passage:

Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty.

Reliable sources inform me, meanwhile, that the paper with the nation’s second-largest circulation total, the Wall Street Journal, will publish an even more blistering op-ed on the issue in tomorrow’s edition.

The Meehan Transcript

Today’s post begins with a multiple choice quiz.

Mike Nifong waited until December 21 to have a representative from his office speak to the accuser about her recollections of March 13-14 because:

a.) Using his skills as an amateur psychologist, Nifong determined that it would take no fewer than 281 days for the accuser to overcome her “traumatized” mindset about the evening’s events.

b.) Nifong feared that acting anytime sooner could be interpreted as questioning the report of Sgt. Mark Gottlieb, whose ability to recall months-before conversations verbatim is legendary.

c.) Based on his experience as an investigator, Nifong needed multiple conversations with the accuser about her children to determine whether she was credible enough to speak about the night in question.

d.) Nifong was panicked by the December 15 in-court revelation of his conspiracy to withhold exculpatory DNA evidence, and dispatched Linwood Wilson to order the accuser to come up with a version of events that would minimize the significance of the DNA results.

Those who answered (a), (b), or (c): I hear that positions (as unpaid interns, due to resource limitations) are available at the Herald-Sun. Bob Ashley is always looking for new talent.

The transcript of Dr. Meehan’s stunning testimony at the December 15 hearing is now available. Below are some quotes that I suspect we will encounter again before this case ends. Undoubtedly all of these quotes were on Nifong’s mind as he decided to manipulate the evidence again, dropping the rape charges but keeping the others.


Nifong offers the first of what would become three explanations as to his role in concealing the DNA test results.

MR. NIFONG. The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week . . . The nature of the subject matter contained in this motion is obviously very important. I contacted Dr. Meehan. First, I faxed him a copy of the motion for him to read and then I contacted him the next morning, which would have been yesterday morning, and told him that because of the nature of the items that were raised, I did feel it was appropriate to address these right away. (pp. 14-15)


MR. NIFONG. The state agrees that these are matters of importance to the case. They are items of importance because it’s crucial that everybody have access to all of the evidence in this case. (p. 16)


Nifong, of course, has since retracted these statements—made in open court—and claimed first that privacy concerns and then the distraction from overwork explained why he entered into an agreement to conceal evidence.

Dr. Meehan, meanwhile, opened his testimony by challenging the defense interpretations of the DNA data. If there weren’t, in fact, multiple male DNA samples, there could be no conspiracy to conceal. Unfortunately, the doctor quickly discovered that Brad Bannon had mastered the data, and had to “modify” his initial denial that the testing revealed several males other than lacrosse players and the accuser’s three acknowledged sexual partners.

DR. MEEHAN. Unless I’m reading [the defense motion] incorrectly, it says that DNA from multiple male sources was discovered on the rectal swabs, panties in the rape kit. And if that’s read to mean that each one of those specimens had DNA from multiple males, it would be incorrect. (p. 20)


MR. BANNON. And those male characteristics—if I’m not correct, please tell me if I’m not—indicate that there’s more than one male’s DNA there; is that correct?

DR. MEEHAN. That’s correct.

MR. BANNON. And all of those DNA characteristics were compared to all of the reference suspects’ swabs in this case; is that correct?

DR. MEEHAN. That is also correct.

MR. BANNON. And there was not a match to anyone; is that correct?

DR. MEEHAN. Yes, that is correct.

MR. BANNON. Including the defendants?

DR. MEEHAN. Right, that’s correct. Didn’t match anyone. (p. 35)


Dr. Meehan’s most novel claim came in his assertion that he failed to report the exculpatory evidence because of privacy concerns. He repeatedly struggled to explain the relationship, however, between the concealment of evidence and privacy matters. This stance would form Nifong’s second justification for withholding the DNA results, but even the district attorney eventually would abandon it to cite overwork as his justification.

MR. BANNON. Let me ask you, whose privacy would it have violated if you had simply reported the male DNA characteristics found on multiple rape kit items from multiple different males who you didn’t have reference swabs for? Whose privacy would it violate?

DR. MEEHAN. That, that wouldn’t have violated anybody’s privacy. (p. 61)


MR. COONEY. I want to make sure I’m understanding this. You were concerned that if you put a sentence in your report saying that Reade Seligmann is excluded from all DNA analyzed under these items as a sentence in your report, that would have violated his privacy rights? . . .

DR. MEEHAN. I can’t answer with a yes or no . . . A typical report, and this was not a typical report, but a standard report will reflect all the DNA profiles of that, all the DNA data from that information, from that person . . . So could we have said that? Could we have done that? Yes, perhaps we could have.


Dr. Meehan offered what could be termed unusual definitions of what constituted a final report; and what should be considered exculpatory evidence.

MR. BANNON: The final report of your work in this case?

DR. MEEHAN. It’s the report we issued on May 12.

MR. BANNON. Well, have you issued any other report in this case?


WITNESS: Could I get a drink of water, Mike?

MR. NIFONG: Yes, sir. [pp. 22-23]


MR. BANNON. Do you know what exculpatory evidence is?


MR. BANNON. What is exculpatory evidence?

DR. MEEHAN. It’s evidence that would provide information that would release a person as a suspect, so to speak in lay terms. Evidence to indicate that you were not party to that.

MR. BANNON. So it’s evidence that tends to negate the guilt of a person charged with a crime; is that correct?

DR. MEEHAN. That’s correct.

MR. BANNON. You understood this case to be a rape case, correct?

DR. MEEHAN. That’s correct.

MR. BANNON. You understood it to be a case where the allegation was that a person had been raped by multiple males?

DR. MEEHAN. That’s correct.

MR. BANNON. And that those males had not been wearing condoms?

DR. MEEHAN. I don’t remember if I knew that or not.

MR. BANNON. Of course, why—the point being you were testing for the presence of DNA from males, correct?

DR. MEEHAN. Right, right. But it could have been one person wearing a condom and one person not.

MR. BANNON. Okay. But you knew, you were testing for the presence of male DNA because a rape allegation had been made?

DR. MEEHAN. That’s correct.

MR. BANNON. Correct?

DR. MEEHAN. Correct.

MR. BANNON. And you found male DNA from multiple different sources on those rape kit items, correct?

DR. MEEHAN. That’s correct.

MR. BANNON. Wouldn’t that tend to negate the guilt of the person who is charged with raping someone?

DR. MEEHAN. You know what? We—no. (pp. 62-63)


DR. MEEHAN. We were asked to determine if any of the evidence items match any of the reference specimens or really, can we exclude any of these reference? Who can we exclude in this reference group? That’s what we do. We exclude suspects. (p. 37)


MR. COONEY. I’ve just got a couple more questions, Dr. Meehan. Is that one notebook in front of you or two notebooks?

DR. MEEHAN. This is one.

MR. COONEY. About how high is that? Six inches? Five inches?

DR. MEEHAN. Yeah, five or six inches.

MR. COONEY. Five or six inches. And those represent the underlying data that was produced by you on October 27, 2006?

DR. MEEHAN. As well as chain of custody documentation and stuff, yes.

MR. COONEY. And in order for Reade Seligmann or Collin Finnerty or Dave Evans to have found the results of the tests that excluded them, they needed to go through those six inches of paper to find them; isn’t that correct?

DR. MEEHAN. That is correct.

MR. COONEY. Because you hadn’t put them in the report; is that fair?

DR. MEEHAN. That is fair. (pp. 85-86)


Privacy, exculpatory evidence, what constitutes a “final report”—these proved to be side issues in the hearing. The central tale: a packed courtroom watched as the conspiracy unraveled and was publicly revealed.

DR. MEEHAN. It is true that we did not release the full profiles of all the players in this case. And I did that after discussions with Mike Nifong because of concerns about getting those profiles out into the public media. (p. 23)


DR. MEEHAN. Now, had the client himself, Mr. Nifong, or through him, you, would request that additional information, we would gladly supply it. (p. 24)


DR. MEEHAN. But if it were a full profile and did not match any of the evidentiary—any of the reference specimens, our client, Mr. Nifong, specifically wanted us to, he wanted to know does any, do any of the reference specimens match any of the evidence. And that’s the report that we gave him. (p. 30)


MR. BANNON. So you find in a rape case where male DNA is found on multiple items from a rape kit not probative evidence?

MR. NIFONG. Objection, argumentative. He’s explained.

THE COURT. Overruled.

DR. MEEHAN. No, that’s not a general rule, okay. This report was a specific report at the request and in discussions with Mr. Nifong that we would report only specimens that matched evidence items. (pp. 59-60)


MR. BANNON. But of course, you discussed [with Mr. Nifong] all the results of your tests?


MR. BANNON. Correct?


MR. BANNON. But you only wrote a report about some of those pieces of evidence, correct?

DR. MEEHAN. That’s correct.

MR. BANNON. And is that because Mr. Nifong told you to write the report that way?

DR. MEEHAN. I don’t think he told me specifically to write it that way. I think we were in agreement that the alternative would have been, as I said earlier, to produce names and profiles of everybody in the case. (p. 60)


DR. MEEHAN. Mr. Nifong agreed with me that it was okay to do this. (p. 61)


DR. MEEHAN. Mr. Nifong agreed that it was okay to report the evidence items and reference items that matched.

MR. BANNON. But at the same time, he knew that there were male DNA characteristics on some of those rape kit items that didn’t match reference swabs, correct?

DR. MEEHAN. I would have to assume that he did know that, right. (p. 61)


DR. MEEHAN. We limited the scope of this report to only that evidence that, in my words, in my terms, was probative. All right. That being the evidence, as it says on the report, that matches suspects to evidence. (pp. 64-65)


DR. MEEHAN. We would be glad to provide a more thorough report, a report of every single profile upon the request of our client as was indicated on this report. Explicitly says this information was retained pending notification of the client. So, and Mr. Nifong is our client and had he said, “Listen, I want a report on everything,” that’s what we would produce. (p. 65)


MR. BANNON. You didn’t include the results for each DNA test in your report dated May 12; is that correct?

DR. MEEHAN. That’s correct.

MR. BANNON. So you violated this protocol of your own lab?

DR. MEEHAN. That’s correct.

MR. BANNON. And you violated this protocol of your own lab because the district attorney told you to; is that correct?

DR. MEEHAN. No. It’s not just because the district attorney told me to. [emphasis added] (p. 66)


DR. MEEHAN. We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope. However, it’s not a – and by the letter of the law, by the letter of the wording of the standard, you’re [Brad Bannon] absolutely correct. It diverges from the letter of that standard, okay. (p. 66)


MR. COONEY. And as of the date you wrote your report, were representatives of the State of North Carolina aware that none of the DNA you had found matched Reade Seligmann?

DR. MEEHAN. I believe so. (pp. 83-84)


MR. COONEY. [Was Nifong] aware that all the testing that you had done excluded Reade Seligmann with a hundred percent scientific certainty as of the date you wrote your report?

DR. MEEHAN. I believe so. (p. 84)


MR. COONEY. If you had been requested by representatives of the State of North Carolina at any time after May 12 to prepare a report reporting on the results of all of your tests and examinations, would you have done so?

DR. MEEHAN. Certainly. (p. 86)


MR. COONEY. Did your report set forth the results of all of the tests and examinations that you conducted in this case?

DR. MEEHAN. No. It was limited to only some results.

MR. COONEY. Okay. And that was an intentional limitation arrived at between you and representatives of the State of North Carolina not to report on the results of all examinations and tests that you did in this case?

DR. MEEHAN. Yes. (p. 85)


Mike Nifong maintains that the exchanges above had nothing to do with his abrupt decision to depart from his eight-month precedent and send Linwood Wilson to interview the accuser; and then to use that interview to drop the rape charges. It’s all a coincidence, suggests the district attorney.

He must hope that the court is as gullible as Dr. Meehan.

[The full transcript of the December 15 hearing is here.]