A "Technicality"

When asked about Mike Nifong obtaining indictments by ordering the police to violate their own procedures in conducting a lineup, CBS legal analyst Mickey Sherman recently stated, “Given the polarization of the community down there and the racial issue, [the case is] not going to get thrown out on this type of technicality.”

Susan Estrich has a healthier respect for procedures: “There are reasons,” she wrote about the case, “you follow procedures. In general, they are there to spare outrage.”

This case is particularly unusual in that a direct relationship exists between Nifong’s procedural violations and flawed outcomes: in effect, the case was constructed upon tissue of procedural irregularities. Had Nifong followed even one of the North Carolina State Bar’s Rules of Professional Conduct outlined below, he could not have brought charges.

1.) Rule 3.3a(1): A lawyer must not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Nifong started his involvement in the case—on March 23-4, when his office filed a motion demanding that the 46 white players on the team submit DNA and photo samples—by violating this rule. It is now clear that this motion was fraudulent in three ways:

• Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; he had no evidence for either claim, and, indeed, no evidence for either claim exists now.
• Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup, conducted in two parts on March 16 and March 21.
• Nifong, it turned out, falsely promised the court that negative DNA tests would “immediately rule out any innocent persons.”
  

The effect of this procedural violation: without the results of the court order, Nifong would have no case.

Flawed procedures beget flawed results.

2.) Rule 3.8(f): Prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Even the district attorney’s defenders in the state NAACP have conceded that he violated this rule. Some of Nifong’s more outrageous statements:

• “One would wonder why one needs an attorney if one was not charged and had not done anything wrong”;
• Deeming all the players “hooligans”;
• Claiming--“to my knowledge”--that he did not know Kim Roberts had made both 911 calls, thereby creating a false impression of a racist atmosphere throughout the party.
  

The effect of this procedural violation: had he not made these remarks, Nifong might have had the political freedom to back down following the negative DNA tests—though it’s worth remembering that he had almost $30,000 of his own money riding on the DNA results.

Flawed procedures beget flawed results.

3.) Rule 3.8, comment 1: Prosecutors have “specific obligations to see that the defendant is accorded procedural justice.”

It’s impossible to reconcile this rule with Nifong explicitly ordering police to violate their own procedures for the April 4 lineup:

• Nifong said lineup would be confined only to suspects, the lacrosse players, despite Durham procedures requiring five fillers per suspect.
• Nifong allowed Gottlieb to run the array, despite Durham procedures requiring a neutral officer rather than the lead investigator to run the array.
• Despite Durham procedures requiring telling the accuser that the suspects might or might not be in the array, the accuser would be told that the array was confined to suspects.

The results of this procedural monstrosity, quite apart from the selection of the three accused players:

• The accuser positively identifying one person who wasn’t even in Durham that night as attending the party.
• The accuser positively identifying another person who could prove he was not at the party.
• The accuser incorrectly identifying the person who made the broomstick comment.
• The accuser not recognizing three people she was 100% certain of having seen at the party on March 16.
• The accuser claiming to recognize nearly a dozen players that she said she didn’t see at the party during the March 16 session.

The effect of this procedural violation: without it, Nifong had no way of identifying the three people he ultimately charged.

Corrupted procedures beget corrupted results.

4.) Rule 3.8, comment 2: “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

Nifong violated this rule at least twice:

• when, in his capacity as case lead investigator, he refused to ask or have police ask Kim Roberts about discrepancies between her statement and that of the accuser*;
• when, in his capacity as district attorney, he refused to meet with Kirk Osborn to consider evidence that Reade Seligmann could not have committed the crime with which Nifong charged him.
  

The effect of this procedural violation:

• in the first instance, central elements of accuser’s story would have been contradicted, requiring Nifong to present these contradictions to the grand jury;
• in the second instance, Nifong would have had to dismiss charges against Seligmann, an outcome that would have set in motion the dismissal of all charges, because Collin Finnerty and Dave Evans were charged according to the same procedurally flawed lineup.
  

Flawed procedures beget flawed results.

5.) Rule 3.8, comment 1: “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.”

It is very difficult to reconcile this rule with Nifong’s statement to Newsweek that no facts that have emerged since he first expressed his opinion (March 27) have affected his opinion about the case.

Compare the evidence he had before March 27 with what emerged after that date—the evidence Nifong deemed irrelevant.

Pre-3/27:

• 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;
• the accuser’s failure to 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;
• Roberts’ statement, which contradicted the accuser’s in almost every way, and a telephone interview with Roberts in which she labeled the accuser’s allegations a “crock”;
• 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;
• the statements of the three lacrosse captains, along with their (spurned) offer to submit to lie detector tests by the police.

Post-3/27:

• time-stamped photographs of accuser at the party, which showed what time her dance concluded and when she left the premises;
• the statement of the person generally described as accuser’s “driver,” which discussed accuser’s various pre-party “appointments” and outlined her erratic behavior on the day of the party;
• 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; and no matches between any lacrosse player and the accuser;
• 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;
• 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: “[Accuser] states she was drunk and had a lot of alcohol that night”
• the accuser’s own statement(!), dated April 6;
• the Seligmann alibi, which included 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.
• the procedurally flawed April 4 lineup.
  

Can anyone seriously maintain that the pre-March 27 evidence is more significant than its post-March 27 counterpart—much less that the pre-March 27 evidence so conclusively proved that a rape occurred that the post-March 27 material can be disregarded?

Flawed procedures beget flawed results.

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We’re now at a stage, to paraphrase Samuel Johnson, where the call of “wait-for-the-trial” is the last refuge of scoundrels, though advocates of this position are advancing different arguments:

• Herald-Sun editor Bob Ashley demands a trial so as to bring closure to the community, while Duke professor and Group of 88 member Grant Farred yesterday demanded a trial as a step against racism. Neither seem to have noticed that using the criminal justice system for political trials went out of fashion when the Berlin Wall came tumbling down.
• The NAACP and Duke professor Orin Starn have argued that the accuser has a right to a fair trial. This novel assertion overlooks 220 years of American constitutional theory, which holds that the defendant, not the accuser, has a right to a fair trial.

This claim that the “system” requires a jury to decide a procedurally tainted case represents an upside-down view of the “system,” to which Duke Law professor James Coleman has offered the best response: “If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.”

Flawed procedures beget flawed results. Corrupted procedures beget corrupted results. And anyone who believes that the flawed and corrupted procedures that have marred this case will suddenly become pristine once a trial starts is either willfully naïve or outrageously duplicitous.

[This post is a slightly lengthier version of my presentation at last week’s ACLU@DUKE Town Hall forum. My thanks again to ACLU@DUKE president Daniel Bowes for arranging and moderating the panel.]

[*--Update, 8.52am: This morning's Good Morning America featured a lengthy interview with Roberts in which she asserted that the accuser told her, after the attack, "Go ahead, put marks on me." When asked why his client hadn't shared that information with authorities, Roberts' attorney responded they didn't ask: "She's never met with the [district attorney] and has never been called back for a follow-up interview." Also see the comments section for a thoughtful critique of my comments on Rule 3.3(a)1, which I agree is the weakest portion of the post, and my response.]