Questions and Answers

The Meehan hearing triggered a lot of questions, and so it seemed like a good time for a Q+A post. Blog stats: since August 28, it has had more than 375,000 visitors and just under 700,000 page views. The blog now has had visitors from 106 countries, with the most recent additions including Honduras, Iceland, Malta, Kyrgyzstan, Afghanistan, Iran(!), Sri Lanka, Nigeria, Uganda, Zambia, Vanuatu, and Fiji.

Q: We have seen enough. Where are you, Steel? How long are you going to keep this tragedy going?

Q: I would love to if you can shed some light onto exactly what the role of the board of trustees (and the Chairman of the BOT) is, and what their limitations are. I have served as chair of a board of education, which may be very different from the board of trustees. However, in our state, board of education members are responsible for making policy--not for implementing it. And each board of ed member, including the chair, has no individual power--they can only act as a group. While the board of ed as a group evaluates the superintendent, the chair of the board of ed could never reprimand a teacher (or the superintendent) for actions he thought were wrong. Do members of boards of trustees have the power to reprimand or discipline professors and the president of the university? Is it appropriate for the Chair of the BOT to take a public stand on the actions of the university relative to the discipline or status of an individual student?

A: The role of Board of Trustees chairman Bob Steel represents one of the biggest mysteries of this case. It’s impossible to overemphasize to those outside the academy how unusually Steel has behaved in this affair.

Normally, Trustees are reluctant to become involved in University affairs, though when they do so, it most often is: (a) on financial or other fiduciary matters; (b) to promote athletics; or (c) to balance inappropriate, usually radical, actions by the faculty. The Ward Churchill affair at the University of Colorado is a good example of the latter. Also, normally a chairman of the BOT is first among equals, but not the sole spokesperson for the Trustees or the sole key actor.

In this case, Steel has recused himself on all financial matters; has stood silently by as faculty members have engaged in an anti-athletics jeremiad; and has taken a number of public and behind-the-scenes actions to work with faculty radicals in their campaign against the lacrosse players. Meanwhile, he has assumed a much more active role than the other Trustees, though he has claimed, in writing, that each and every one of the other 36 fully agreed with his actions.

In terms of the specific powers of the Board: In theory, the Board has considerable oversight power. To give one specific policy the Board could consider: to express displeasure with the Group of 88’s fairly clear violation of Chapter Six in the Faculty Handbook, Duke could withhold this year’s discretionary raises to faculty members who signed the statement. Don’t count on that happening, however.

Q: Someone put a copy of the entire Change of Venue document on this website. It needs to be here.

A: Excellent suggestion. I have added a new sidebar, which contains links to all three motions filed this week (change of venue, lineup, and DNA).

Q: Basically, how can a prosecutor, faced with DNA evidence not matching the accused, not follow it up and try to determine the source. Was the deposit consensual, or was it rape but not by a lacrosse player (as there is evidence that there were non lacrosse players at the party)? How could Nifong just ignore the evidence--unless he was fully aware that the entire story was a hoax, and following this trail would lead to nothing.

Q: Nifong has sworn in open court that he didn’t ask the accuser any substantive questions on April 11. Think it through! Which is worse for Nifong? He lied to the court? Or he didn’t? Given what he learned about the DNA evidence on April 10, under what circumstances would he NOT question her the next day? Is there a pretty answer to that question?

A: This issue is deserves more attention than it received in the post-hearing environment (but understandably didn’t, because the highest-profile item was evidence of the Nifong/Meehan conspiracy).

The short answer: no innocent explanation exists for Nifong’s behavior in this regard.

The longer answer: reconstruct the timeline. Nifong and Sgt. Gottlieb journeyed to Burlington on April 10, where Dr. Meehan told them that there were samples from five males other than the lacrosse players and the three men with whom the accuser had admitted having sexual relations. These findings suggested that the accuser all but certainly lied when she said she said she hadn’t had sex the week before the party.

While at this meeting, according to Meehan’s testimony, he and Nifong began the process of entering into an agreement to intentionally not report this information.

The next day, Nifong, Gottlieb, and two other police officers (Himan and Lt. Ripberger) met with the accuser. It is Nifong’s contention, stated in open court, that he did not discuss this information with the accuser at that meeting, because she was too “traumatized” by the alleged event.

The inescapable conclusion: he’s either lying or is mindbogglingly incompetent.

Q: In the Friday hearing, the brief filed by the defense states there has not been full disclosure regarding the DNA testing. And Meehan confirmed this in his testimony. Do Meehan and Nifong now have to provide the additional information? Or was this left hanging?

A: The brief listed several ways in which the request for more information could be fulfilled, one of which was Meehan testifying, subject to defense cross-examination.

The additional information was supplied by Meehan on the stand (his testimony). At the conclusion of his appearance, defense lawyers stated that they wanted to review the transcript, and then might be filing additional motions. I suspect that other agencies will be interested in that transcript as well.

At this stage, it appears that Meehan—albeit under court order, and over Nifong’s vociferous opposition—has turned over all of his data to the defense.

Q: KC, who’s to say that it wasn’t Bob Ekstrand who gave the emails to the H-S? The article reads as though the comments were replies to his request that the faculty sign his petition.

A: Fair question. From two separate sources, I have been told that Ekstrand wasn’t the Law School Leaker.

Consider, moreover, the motive: in light of Friday’s hearing, the Leaker had an opportunity to publicize that three law school professors (four, if you want to count Holloway) refused to sign a petition denouncing Nifong. Ekstrand would have no motive to have that information enter into public circulation. I can think of one or two recipients of the e-mail who “in a heartbeat” (to borrow a phrase) would have been only too willing to work hand in glove with the H-S.

There seems to be no chance that Trina Jones or Karla Holloway would have signed such a statement under any conditions. But others might have been concerned about the connection between Ekstrand, who has represented some of the unindicted players, and the petition.

On that matter: to my knowledge, the petition originated with undergraduate faculty members, and its initial circulation came in the arts and sciences and Engineering faculty. The Gronberg article suggested that 20 Duke professors had been willing to sign such a petition; I don’t know how many of this group (if any) were from the law school.

Q: There were also a number of guys at that party who were not LX. team members and so were not tested during the first round. Did Nifong think to test them? After all, he was stridently insisting that a vile form of rape had occurred. Did he mean it? Did he even try to test the group of potential perps when the first round came up blank?

A: This issue—for reasons that I cannot understand—has not received anywhere near the attention it deserves. The Nifong-led investigation knew on March 28 that at least two people at the party during the accuser’s “performance” weren’t lacrosse players. Investigators knew their names, and addresses.

Yet the accuser was never shown the photographs of these two people.

Imagine if a rape actually had occurred: because of Nifong’s investigatory negligence, the accuser was denied the opportunity to look at two people who might have been her “attackers.” The silence of pro-“victim” groups, such as the North Carolina NAACP, on this question suggests that whatever is motivating them, it is not ensuring “justice” for the “victim.”

What explains Nifong’s negligence? The only possible explanation is politics. Nifong was up against a politically imposed deadline: he needed indictments before the next meeting of the April 18 meeting of the grand jury. (The primary was May 2.) He learned of the non-lacrosse players attending the party on March 28. Acting upon this information would have required him getting a non-testimonial order, waiting for the state lab to analyze their DNA, and then scheduling a lineup ID session. (Since their DN theoretically could be a match, Nifong couldn’t afford to risk scheduling the “no-wong-answers” lineup until all DNA was in.) That schedule meant that he might not have time to make an indictment before the April 18 grand jury—which would mean no indictment before the primary. Which would mean no primary victory.

Q: Why can’t the NC Bar or the Feds question Judge Stephens on what transpired at the Grand Jury proceedings?

Q: How much is known about the Grand Jury? Charles A. Harris is the foreman’s signature on a number of documents that are part of the public record? Does anyone know who he is? Can the defense team take depositions from the members of the GJ, now that the Nifong-Meehan conspiracy has been exposed? It’s amazing that North Carolina doesn’t require a taping or record of the proceedings.

A: I’m looking into the question of grand jury secrecy, which varies from state to state, and hope to have more information after the first of the year.

Consider the questions a different way: imagine you served on the grand jury that handed down indictments against Reade Seligmann and Collin Finnerty. At this stage, after all that we have learned, how could you remain silent and not come forward to denounce the prosecution for obtaining fraudulent indictments from you?

Q: Is there any possibility that Nifong would attempt to have Meehan’s test results tossed out? I know this would do more harm to him, but how much more? If he accomplishes this, then the defense can’t use the 5 to 7 of the other men’s DNA, found on the AV or her clothes.

A: Nifong might try this move, but would have almost no chance of success. The defense obviously would oppose the motion, and I can’t imagine the judge siding with Nifong on the question.

Q: Imagine this going to trial (God forbid)! The defense lawyers' call Meehan as a witness. Nifong objects to Meehan testifying for various legal reasons, but the real reason is that Meehan's testimony would further implicate Nifong in a criminal enterprise. Is this so far fetched that it couldn't happen?

A: This issue, in fact, was a central element of UNC professor Joseph Kennedy's N&O op-ed from yesterday. Kennedy argued that Nifong now suffers from a hopeless conflict of interest, in which--to save his own skin--he would need to impeach Meehan's testimony.

By the way: we'll be seeing lots of this if a trial ever occurred. Even in the February evidentiary hearing, Nifong has no choice but to impeach the testimony of the current lead investigator on the case, Ben Himan, since Himan's notes contradict the Gottlieb "straight-from-memory" notes upon which Nifong so relies.

Q: Although one of the commentators asked the question, is there any response as to why the relevant authorities such as the Bar Association, Disciplinary Board, etc. have not moved on an investigation into Nifong's activities? Is it because the case is still pending? That seems dangerous for the three players in the event a conviction is won. As a former prosecutor and now defense attorney, I have an inherent distrust of the jury system. And given the trial likely takes place in the community that re-elected this DA, I am even more worried about the possible outcome.

A: There is no clear answer to this question. The bar's procedures contain nothing mandating the bar's ethics committee to wait to investigate a matter while a case is still pending. There seems to be no way absent political pressure, however, to force the bar to act in a timely fashion.

Q: I have a question, if Nifong were to interview the FA today in regards to all that DNA that was found on her would he have to hand over that information to the defense ?

A: Yes—under the Open Discovery Law.

Q: What is the legal rationale for calling a prosecutor as a witness? Nifong has on more than one occasion said that he specifically did not interview the AV because he did not want to put himself in a position to be called as a witness. Clearly prosecuting attorneys often (or usually?) interview alleged victims of crimes, without fearing they will be put on the witness stand. What is it in this case that would cause him to fear that if he interviewed her he would put himself in that position? Is it the fact that the AV changed her story, and the prosecutor could be asked to testify if he hears her change her story? In which case did Nifong NOT interview her BECAUSE he knew her story kept changing (and therefore knew there was an issue with her credibility?)

I ask this because almost all experts seem to agree that not interviewing the AV was a major error in the investigation, yet Nifong seems to think it was legally justified, or even SOP. It seems his motive is important (if he were charged with prosecutorial misconduct, could he have to testify as to his motive?)

A: Nifong’s argument is a canard, and it’s disappointing that some in the media have treated it seriously. Himan, Gottlieb, or Linwood Wilson could attend such a discussion and memorialize it, thereby precluding the possibility that Nifong would be called as a witness.

In normal cases, of course, the prosecutor is not simultaneously serving as the lead investigator, and therefore conversations between the prosecutor and the accuser don’t occur until after the police have completed their investigation and determined that a crime actually occurred. Therefore, it’s unlikely that any dramatically new information would come out in a prosecutor-accuser conversation.

Q: In my experience, when an expert takes the stand, unless both counsels stipulate to the background and credentials of said expert, there is a period of questioning regarding degrees, experience, prior court appearances, etc. was any of that done with Meehan?

2. Was there any exploration by defense counsel of Meehan’s statements that “Nifong was the client,” pointing out that the client was the State or the People or the taxpayers of NC and that they were owed an accurate, complete, unbiased report as required by his SOP, the standard setting body, and the state law?

3. You said: Meehan got off to a bad start. Less than 10 questions into a session with Bannon, he challenged a defense assertion that the underlying DNA test results—the results that he and Nifong had mutually agreed would be excluded from his report to the D.A.—showed DNA from multiple men on the material from the accuser’s rape kit. What was the bone of contention in the first 10 questions?

A: All excellent questions. On (1), this was a pretrial hearing confined to the issue of why Meehan didn’t follow NC law and turn over all the material in his initial report. So the question of his qualifications didn’t have to be etsbalished, as it would be in a trial.

On (2), no, there was no followup, probably because the comment itself (which Meehan made three or four times) was simply so bizarre. I suspect we’ll hear more of this issue in defense followup motions.

On (3), at the start of his testimony, Meehan seemed eager to dispute the claim that there were samples from five other men in the rape kit. Here I’m speculating, but my guess is that he (and Nifong, obviously) didn’t realize that defense lawyers had actually gone through all of the DNA data and had discovered the cover-up. So when he refused to acknowledge the obvious, Bannon was forced to walk him through the data step by step.

Q: Was the Wanted Poster a product of the Gang of 88 or student activists they knew of or supervised for better provoking community rage? Who assembled it from duke.edu web page photos? Who paid to print it? Who was involved in the group that distributed it 1st on Duke campus then all over Durham to attack “white male privilege?

A: John in Carolina is the blogosphere’s expert on the poster, and I turned to him for a response. He outlined the origins of the posters in this post, and also conducted an interview with local attorney Alex Charns, who is heading up the legal response to the posters. JinC then took the issue to the Durham Police, which offered what were at best evasive responses. And in this post, he summarized the N&O's role in disseminating the poster widely.

Q: Did Nifong hand over any more “evidence” at the hearing?

A: Yes, but not much. He handed over notes of Himan’s activities since mid-July; and Linwood Wilson’s notes. I doubt very much that the former will contain anything of consequence. I suspect the latter will be of the intellectual quality of the Gottlieb notes, without its “straight-from-memory” aspect.

Q: Since Gottlieb and Himan attended the two meetings with Meehan, should there be notes regarding the meetings in their investigation notes?

A: Absolutely. It is my understanding that Sgt. Gottlieb’s straight-from-memory notes contain nothing more than a statement that he attended the meeting, with absolutely no discussion of what was said at the meeting. This from the same person who, months after the fact, recalled precise details of his March 16 chat with the accuser.

Q: Bannon must be one hell of a lawyer. When it was reported that Evans’ dna could not be excluded from the dna found on the nail in the bath, Nifong supporters jumped on this as the smoking gun. What a great point Bannon made about Meehan’s dna (possible just one cell) being found. Proves without a doubt how easy it is to transfer dna.

A: Absolutely. As he was eviscerating Meehan on the stand—essentially getting the doctor to admit to having participated in a conspiracy to obstruct justice—I don’t think anyone realized that Bannon was speaking extemporaneously. (I certainly hadn’t realized it.) Meehan wasn’t expected to be in court last Friday: the defense, as far as I know, hadn’t prepared a detailed cross-examination of the doctor.

Under these circumstances, Bannon’s performance was stunning.

Q: Off topic, but could it be possible that Victoria Peterson is the so called “handler” for the accuser on behalf of Nifong?

Q: Why does her family have to go through Nifong to speak to her? Where does he have her hiding?

A: Very good questions: again, where are the so-called “victims’ rights” groups—NOW, Laura Blasberg, even the NAACP? Their silence on this matter speaks volumes as to their true motives on this case.

Q: I would love to hear your opinions concerning what is happening with the decline of newspapers and blog reporting. Are we witnessing a revolution?

A: The best way to approach this issue is to remember that we’ve seen good and bad newspaper reporting on this case, just as we’ve seen good and bad blogging on the case. It’s true that the bad newspaper reporting has been unusually bad (New York Times, Herald-Sun) and the good newspaper reporting has largely been confined to the N&O.

Peculiarities of this case, moreover, have made it unusually welcoming for a blogger. Kirk Osborn, very soon after the indictments, made the risky but (in retrospect) brilliant decision to post critical police documents as part of his early motions. These documents (Kim Roberts’ statement, Jarriel Johnson’s statement) should have formed the heart of the state’s case. That they instead were wholly exculpatory suggested that Nifong had no evidence.

The prevalence of a large number of available documents—whether police reports, NC procedures, faculty remarks like the Group of 88’s statement—made active blogging possible.

In terms of how blogs have affected the case: we’re still in the midst of things, so it’s premature to judge. It would be hard to argue, however, that their overall impact hasn’t been a positive one.

Q: Wanted to ask you when you had the ‘Schedule’ entry up, KC - how did the local and national press receive you?

A: At both hearings that I have attended, I’ve tried to speak to as many people as I can. Some people who are covering the case know me; some don’t. Some are cordial and welcoming to me; others aren’t.

For my part, I have great admiration for the professionalism of the N&O reporters covering this case, which hasn’t been an easy one to cover, in part because it doesn’t fit easily into at least some expected narratives.

Q: More, this is a highly educated man whose field has an obvious nexus to law enforcement, etc. It begs the question: is it at all reasonable that Meehan thought that this could’ve been ok?

Q: While I hate to go against the tidal wave of exculpatory evidence, is there any way these students’ could be guilty of any of the charges? Is there a remote possibility that Nifong has the Ace of Spades up his sleeve?

A: No—to both questions.

On the first question: according to his website, Meehan is certified as an expert witness in six states. He knew exactly what he and Nifong agreed to intentionally do.

On the second question: remember that NC has an Open Discovery law (which Nifong has tried to circumvent, but it’s nonetheless on the books). If Nifong had an “ace of spades,” he would have to disclose it. Unfortunately for him, the material in his case file revealed that he doesn’t even have a two of diamonds. That’s a pretty bad hand on which to bet one’s career.