Friday, August 11, 2006

Boasting of Closed-Mindedness

Duke president Richard Brodhead—having declined to protest a system in which local authorities refuse to follow their own procedures when investigating his own institution's students—now has publicly claimed that three Duke students will have the opportunity “to be proved innocent” in a situation that “only the criminal justice system can resolve.” In the Alice-in-Wonderland world that is Durham justice, such sentiments, which turn American judicial philosophy on its head, are all too common—as in a peculiar editorial from the Durham Herald-Sun, which praised D.A. Mike Nifong for stating at a recent press conference, “I have not backed off from my initial assessment of the case.” This comment provided a “boost of confidence” to those, like the Herald-Sun editorial board, who support Nifong.

Following up on several posts from John in Carolina, which have raised serious doubts about the Herald-Sun’s journalistic integrity, a recent letter to the editor by Friends of Duke University spokesperson Jason Trumpbour eviscerated the editorial. As Trumpbour noted, the editors “stated that Nifong ‘still believes he has a good case’ and find that significant for some reason. Yet, Nifong apparently lacks the courage of those convictions. After ramrodding evidence through a hopelessly backlogged SBI crime lab and racing to get indictments before the election, Nifong is now trying to postpone the day of reckoning until next spring. Nifong refused to even look at any of the exculpatory evidence proffered to him by the defense. This action violated North Carolina Rule of Professional Conduct 3.8 which prohibits a prosecutor from avoiding ‘pursuit of evidence merely because he or she believes it will damage the prosecutor's case.’ In hiding his eyes from that evidence, Nifong abdicated the responsibilities of the office to which he was appointed and should have no further claim to it.”

An even firmer version of Nifong’s press conference claim came in an e-mail to Newsweek dated June 13, 2006, when the D.A. asserted, “None of the ‘facts’ that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially.”

Nifong’s own words contradict his statement.

In a motion filed with the Durham court to compel all 46 white players on the team to produce DNA samples—the district attorney’s initial expression on the case—Nifong’s office affirmed, “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.” The players gave the samples on March 24; three days later, the D.A. made his first public comments to journalists. Shortly thereafter, Nifong told the media that he looked forward to the DNA results: “By next week, we'll know precisely who was involved.”

On April 10, defense attorneys announced that the DNA tests from the accuser’s rape kit contained no matches to any of the players. Nifong’s response? The very next day, he changed his mind: “DNA results can often be helpful, but, you know, I've been doing this for a long time, and for most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

So, despite his repeated assertions, Nifong’s “initial assessment” did change—and change completely—as a result of evidence produced after March 27. Before that time, DNA tests would “immediately rule out any innocent persons” and “show conclusive evidence” of the guilty. After the results were produced on April 10, DNA evidence was effectively irrelevant to his case.

The district attorney’s press conference and Newsweek statements are troubling for another reason. His twice boasting of having made up his mind a mere 11 days into the investigation—even though, at the time, the police had done very little work on the case—contradicts the spirit, and possibly the letter, of Section 3.8, comment 1, of the state bar’s ethics code. This section maintains, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice.” Surely the duty to “seek justice” in the role of a “minister of justice” requires an open-mindedness to new facts as they become available.

North Carolina’s open discovery law means that we have a clear sense of what evidence Nifong possessed when he expressed his “initial assessment” of the case on March 27. This material included: (1) various police reports of early interviews with the accuser, where she offered at least five different versions of events, most of which were mutually contradictory; (2) the report of a police officer indicating that the accuser couldn’t identify her attackers when shown photos of the lacrosse players, coupled with descriptions of the attackers that bore no resemblance to at least two of the three people she ultimately picked; (3) the second dancer’s statement, which contradicted the accuser’s in almost every way and labeled the accuser’s allegations a “crock”; (4) the statement of the neighbor, who described a loud and alcohol-filled party but also placed the comings and goings of the dancers in such a way to limit the window in which a possible crime could have occurred; and (5) the statements of the three lacrosse captains, along with their (spurned) offer to submit to lie detector tests by the police.

It’s hard to believe that any “minister of justice” would have proceeded with a case based on this evidence and this evidence alone. In Nifong’s case, it’s impossible to entertain such a belief. The N&O’s Joseph Neff has revealed in two extraordinary articles, the most recent of which appeared in Sunday’s paper, that numerous public statements made by the district attorney on or very shortly after March 27 were unsupported by the material to which he had access. As Neff wrote yesterday,

To get warrants, police made statements that weren't supported by information in their files. The district attorney commented publicly about the strength of the medical evidence before he had seen it. He promised DNA evidence that has not materialized. He suggested that police conduct lineups in a way that conflicted with department policy.

As with the pre-“initial assessment” evidence, we have a good sense of the evidence that appeared after March 27. That material included: (1) the procedurally flawed lineup through which the accuser made her identifications (which she previously had been unable to do on at least two occasions); (2) time-stamped photographs of the accuser at the party, which showed what time her dance concluded and when she left the premises; (3) the statement of the person generally described as the accuser’s “driver,” which discussed the accuser’s various pre-party “appointments” and outlined her erratic behavior on the day of the party; (4) the two rounds of DNA tests, which contained no matches to two of the accused players and a match to the third on a towel in his own house; (5) the accuser’s cellphone records, which included a 12.26 call to another escort service and an 11.36-11.39 call before she arrived at the party; and, according to Neff’s story, (6) two medical reports, one from Duke, which “made no mention of bruises, tears or abrasion to either the vagina or the anus, [and] . . . noted a scratched heel, and no other signs of physical assault”; the other, the next day, from UNC: “[The accuser] states she was drunk and had a lot of alcohol that night.”

The post-March 27 evidence also includes (7) material produced by one of the players that Nifong targeted, Reade Seligmann—evidence that Nifong refused to consider before seeking indictments, despite the specific mandate mentioned in Trumpbour’s letter to the editor. That material includes cellphone records, two affidavits, and an ATM video showing Seligmann was either on the phone, in a cab, or at an ATM machine a mile away during the only time block in which a rape could have occurred.

Taken together, the post-March 27 material suggests a few linked themes: (1) the combination of the accuser’s cellphone records and the party photos gives the lie to Nifong’s bizarre statement that he had his own timeline of the case (“my timeline,” as he described it) that presumably placed the crime sometime before midnight. Given that Seligmann has electronic exculpatory material after 12.06, the post-March 27 evidence shows him demonstrably innocent--I would hope even to President Brodhead's satisfaction.

(2) The medical evidence—once assumed to be the heart of Nifong’s case—in fact provides him no assistance, and is, moreover, internally contradictory. While the Duke doctor “noted a scratched heel, and no other signs of physical assault,” the accuser claimed the next day at UNC that she had been repeatedly beaten and hit her head on the sink in the attack—signs of which surely would have been apparent to the Duke doctor the previous evening.

(3) Nifong needed to engage in a massive, multi-faceted, violation of procedural norms—the April 4 photo ID session—to manufacture any evidence to get indictments before the May primary; the photo IDs provided the only evidence used to specifically target Seligmann and the second player indicted before the primary, Collin Finnerty. For this offense alone, it’s hard to see how any fair-minded state bar inquiry could not recommend suspending him from the bar.

Given this record, and given what he possessed on March 27, how can Nifong seriously maintain that “none of the evidence that I have seen from any source, has changed the opinion that I expressed initially”? Such a claim violates common sense. More important, how can Nifong’s repeated assertion of this sentiment be consistent with his requirement to be an open-minded minister of justice?

The “minister of justice” requirement is among the most serious in the North Carolina ethics code: the provision holds that a “systematic abuse” of its terms in and of itself could constitute prosecutorial misconduct. The guidelines suggest reference to the ABA Standards for further guidance.

These ABA guidelines, like those of the state, suggest discomfort with a prosecutor announcing closed-mindedness 11 days into an investigation, when most of the evidence remained forthcoming. Standard 3-1.2(b) requires the prosecutor to “exercise sound discretion in the performance of his or her functions,” since, according to subsection (c), “The duty of the prosecutor is to seek justice, not merely to convict.” Standard 3-3.1(b) prohibits a prosecutor from exercising “improper consideration”—i.e., the need to placate a critical voting bloc on the eve of a primary—“in exercising discretion to investigate or to prosecute.” It’s difficult to reconcile Nifong’s behavior with these ABA mandates.

So what, exactly, is worthy of praise in Nifong’s statement that “I have not backed off from my initial assessment of the case”? A district attorney misleading the public, when he erroneously claimed that no evidence produced after March 27 altered his “initial assessment” of the case? A district attorney misleading the court, having sought DNA evidence under specific promises, only to abandon them once the evidence didn’t turn out as he wanted? Or a district attorney boasting of approaching the case with a closed mind rather than as a “minister of justice,” despite the ethics code’s clear suggestion that such behavior constitutes prosecutorial misconduct?

Update, 1.33pm: The N&O has just posted a correction, noting that a memo cited in the article (not mentioned in my post) in which Nifong ordered a Durham police officer to track down the accuser's movements before the party occurred on April 4, not on April 17, as the article originally stated. This change, however, has no effectr on analyzing Nifong's closedmindedness. Taking the district attorney at his word (that he hasn't changed his opinion of the case from the time of his "initial assessment"--which would be March 27), the fact that he was trying to track down the accuser's movements, whether it was on April 4 or April 17, shows what the N&O correction terms an "example of the words and actions of police and prosecutors outpacing the facts in the file."

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