Monday, November 13, 2006

Cheshire's Bill of Particulars

As I’ve noted previously, sometimes the Herald-Sun’s zealous promotion of Mike Nifong backfires. In September, in an attempt to defend Sgt. Mark Gottlieb from statistics showing that he arrested 10 times as many Duke students as the other three District 2 supervisors combined, the Herald-Sun suggested that Gottlieb was merely following official DPD policy of disproportionately meting out punishment to Duke students as a class. This revelation for the first time suggested an official policy justifying Gottlieb’s statistically disproportionate actions, and invited the possibility of Justice Department intervention.

The latest episode of the Herald-Sun unintentionally aiding the defense came on November 9, when editor Bob Ashley commissioned an article headlined, “Lawyers: Nifong Right Pick for D.A.” The article opened with a bold claim that “several lawyers linked to the Duke lacrosse rape case . . . offered conciliatory remarks about Mike Nifong the day after he bested two challengers,” and then contained this stunning statement from Kerry Sutton: “I believe the right person won. While I disagree with Mike’s handling of the lacrosse case, he had a right to take the stance he did, and he is doing his job.”

Then, reporter John Stevenson (of course) couldn’t restrain himself in putting even more pro-Nifong spin on the story, and added that Sutton “has done some work for lacrosse rape defendant David Evans.”

By leaving the impression that Sutton might be speaking for Evans’ defense team, Stevenson opened up the possibility for a response from the people who are really representing Evans, who otherwise might have been restrained from speaking out by the judge’s gag order.

In today’s Herald-Sun, Joseph Cheshire took advantage of the excess pro-Nifong zeal shown by Stevenson and Ashley. After affirming that “Sutton does not represent Evans, nor is she authorized to speak for him or on his behalf,” Cheshire said bluntly what everyone else has said quietly about Sutton’s motives for her comments: “I understand the need for lawyers whose livelihood and clients’ fates are often governed by the whim of the elected district attorney to remain as close as possible to that DA no matter what he does.”

Cheshire then lays out the case against Nifong:

But it must be noted that Nifong’s only “right” and “job” as a prosecutor in this or any other case is to satisfy his oath to see that justice is done. He has no right to take over the role of lead investigator from the police and then refuse to view exculpatory evidence, or to order an illegal and improper photo lineup procedure, or to make factually baseless public statements that pander to race, gender and class during an election cycle.

Justice is not done in any criminal prosecution when a DA who assumes the role of chief factual investigator and does not bother to talk with the chief prosecuting witness about her allegations to assess her credibility, and instead lets forth a stream of pure speculation about the “facts” of the case to conform to the evolving investigation: speculation that, in fact, contradicts materials in his own case file and sworn statements made by his own investigators and assistants in the investigation. Those actions are hardly a prosecutor’s “right” or “job” as defined by his oath.

As Cheshire concludes, “This case is not business as usual in the criminal justice system. That much is clear to any objective viewer.” That Stevenson and Ashley aren’t objective viewers, and that Kerry Sutton has elected to pander to Nifong, is testament to the corrupt nature of Durham’s legal and journalistic elite.

We all should be grateful to Stevenson and Ashley, however, that their ineffectual pro-Nifong bias gave Cheshire a chance to lay out the case for proper behavior by a prosecutor.


Anonymous said...

Kerry Sutton has staked out her position in any and all future cases she might defend before the Durham DA. Her clients are on notice that she has chosen to be Nifong's lap dog.

Anonymous said...


People need to remember that in her first "lineup" episode, the accuser picked someone who clearly had not been at the LAX party. While Nifong could have lied to the grand jury and indicted this person, anyway, such an action would have been so blatantly illegal that no one could have covered for him in the aftermath.

From what I remember, this first "false positive" lineup occurred BEFORE the infamous Nifong appearance at NCCU. The audience was demanding arrests, but Nifong already knew that the accuser's credibility had been shot.

Thus, he rigged the second lineup in order to be able to obtain indictments BEFORE the election. It is obvious that had Nifong NOT obtained the indictments of Collin Finnerty and Reade Seligmann that he would have lost the primary.

Note, however, that Nifong made sure that he had not seen any exculpatory evidence regarding Seligmann before seeking indictments. Thus, he could claim that he was NOT AWARE of anything that would have placed Reade away from the party when the alleged crime occurred.

Later, Nifong changed his story about the time and length of the alleged rape in order to fit Seligmann's indictment. This is important, because Nifong is implicity acknowledging that Seligmann was gone when the defense says he had left the party.

What is important to remember is that Nifong almost surely had told the grand jury that the rape went on for 30 minutes. After all, that was his mantra at the time, and I doubt he was going to change it. At the same time, he was alleging that Seligmann's alibi was false.

Now we see him changing the story in order to fit Seligmann's alibi, having unsuccessfully tried to make the cab driver change his story. Furthermore, we see Bob Ashley and the H-S accepting the "new" version of the "five-minute rape" in order to cover for Nifong.

This truly is a sorry tale, and I suspect that news coming out in the future will be even worse.

William L. Anderson

Anonymous said...

Thank you for pointing out the real objectives of the H/S and Sutton.

GPrestonian said...

KC, you bring up an interesting point.

I was surprised by Cheshire's op-ed today, given the gag order (the details of which I don't think we've seen). Never having been under a gag order, I was wondering what would give an attorney an opening to speak out, Surely the clarification of Sutton's relationship was OK, but I remain surprised that he went on to castigate Nifong, even tho it was in direct response to Sutton's remarks after the election.

Anonymous said...


My guess is that Joe C can kind of open up about things as much as he wants given that he had to go to the media to defend the truth regrading his client.

Additionally, Nifong has had plenty of disregard for policy/procedure for the last 8 months and no one has done a thing about it. So I doubt Joe C has anything to worry about.

kcjohnson9 said...

Under Rule 3.6 of the NC bar's ethics code, Cheshire's comments were well within the bounds of propriety. Basically, the code gives lawyers an opportunity to say anything in direct response to misinformation about their client. That's where Stevenson's ID of Sutton as doing defense work for Evans was so critical.

GPrestonian said...

KC, not only the mention of Sutton's limited work for Evans, but also his quoting of quoting Sutton's comment [that] "...he had a right to take the stance he did, and he is doing his job."

That's what gave Cheshire the opening to 'splain a DA's real job (and in doing so contrast it to the one being done by Nifong).

A 2-fer! ;>)

GPrestonian said...

Nice stutter, GPrestonian. That phrase should be:

...his quoting of Sutton's comment..

of course.

Anonymous said...

Yes, the "right to take the stance he did..." was so vague as to be a major opening. What right? What stance?

It's likely that the HS did not fully quote Sutton in its usual failure to develop and report a story. Their bad.

One wonders, too, if Sutton deliberately misrepresented the assistance to Evans' defense to give the appearance of legitimacy, i.e. that the defendants' attorneys were also supportive of Nifong and, therefore, are working with him. This is the greater offense of both her comments and the HS's attempt, perhaps, to give that impression. With Nifong's history of arranging pleas to lesser charges in rape cases -- and he surely, though erroneously, expected this effort to be made by defense attorneys in this case -- Sutton was able (she thought) to take a middle ground.

Matt needs to find another attorney. I understand the circumstances under which he was limited in choice, but this is clearly a conflict of interest (and intelligence).


Anonymous said...

Given Suttons statements, one can only wonder why she stood proud as a peapock behind Dave when he gave his amazing statement in defense of all three indicited players about the 'accusers' FANTASTIC LIES.
Playing to both hypocritical !!

Anonymous said...

I think Nifong's statement about the election "showing him who his friends" were and his thinly veiled threat against those who were not had this effect on Ms. Sutton. She doesn't want to be on Nifong's bad side lest she be subjected to another round of four letter obscenities, or not be allowed to come in his office and make nice plea deals for her clients.
I am glad Cheshire also spoke up about her statement about outsiders not having any business in Durham's election. That was the most offensive to me. For her to think that all of us that have sons or daughters at Duke who could have been in this situation have no right to be involved? That they can just indict these students falsely and expect the parents to keep quiet and accept this injustice? It's none of our business? Kerry Sutton has gone over to the dark side. There's no straddling the fence in this case. I agree that she should not be defending anyone involved in this case. I would hope that her stragegy backfires, and future potential clients avoid her like the plague.

Anonymous said...

Being from the midwest, I am used to a different type of justice system than the one followed in NC. But the real mystery in this whole affair (to me anyway) is the total absence of the state attorney general or the governor or even the feds. The evidence (or lack of) keeps mounting against Nifong, yet these boys are still bound for trial. I am very much baffled by the the fact that there is not one Duke administrator or Duke alum that has some clout to get this thing reviewed by a politician or government agency? What evidence does Nifong have that is keeping these folks at bay? Or is there really no one with clout who cares?

Anonymous said...

I guess Kerry Sutton thinks she is being practical but her position is morally untenable. To come out singing Nifong's praises when she has to know he is prosecuting three innocent young men is just about beyond belief.

Anonymous said...

The commenter from the midwest has it right. Why isn't more being made of Gov. Easley's silence (he appointed Nifong), the attorney general's failure to act and the silence of the feds?

Anonymous said...

gov. easley is a graduate of nccu law school and his wife teaches there. no way in hell is he going to stop this case. he is letting nifong take this case involving a fellow Eagle to court. also, easley is a lame duck but is rumored to be eyeing a senatorial run and guess who needs black votes? do the math. he is letting justice proceed and as the defense says they are innocent, if they are they will walk.

Anonymous said...

Does anyone think Easley's NCCU connection is influencing his failure to use his bully pulpit in this flawed case? And what about the failure to act by the attorney general?

Anonymous said...

Perhaps somebody should alert the black community that, after getting Nifonged, they are about to get Easleyed. Apparently he intends to ride the coattails of full state Durham-like racism into the senate.

The feds jumped all over the cop-beating-that-wasn't-a-beating of the gang-banger in the LAPD incident, but they've shown no interest whatsoever in this much more clear-cut violation of these boys' civil rights. Why? I don't know the answer, but I often suspect it has something to do with the Bush administration's failure to rid the Justice Dept. of all of Hillary's appointees that took over after she fired most of Justice, including the U.S. Attorney's Office.

Anonymous said...

4:19, could you possibly be less informed?

Anonymous said...

Do you have an explanation then, for the absence of the Feds?

Anonymous said...

To 1:24...
Yes...and what party does the AG belong to?

Anonymous said...

It doesn't matter what party the AG belongs to if he's got a house full of commies playing politically correct favorites as dictated by their party masters who put them in their jobs.

Do you really think that Gonzales actually micromanages cases such as those exemplified by the Duke travesty?