Saturday, February 10, 2007

Everett's Odd Arguments

Robinson Everett, a retired judge and Duke law professor, endorsed Mike Nifong in both the primary and the general election. But until recently, Everett had been one of the few voices of reason coming from the Nifong camp. He championed a speedy trial (which the D.A. didn’t support) and also called on Nifong to give the accuser a lie-detector test, a course obviously not pursued.

In recent days, however, Everett has published two unusual defenses of Nifong.

First, in a letter sent to the N&O, he expressed surprise at Governor Easley’s statement that Nifong had committed not to run for a full term.

Previewing a line of argument that appeared in a Herald-Sun editorial yesterday, Everett stated, “If Easley believed he was appointing a competent district attorney, I cannot understand why he wanted a promise from Nifong that he would not run for this position in the next election.”

Of course, this strategy isn’t hard to understand at all: as the governor implied, he didn’t want to appoint someone who might be tempted to politicize the office. The practice is not at all uncommon—governors often employ it when appointing people to Senate vacancies (as in New Jersey in 1981 or Tennessee in 1993). Naming a placeholder allows for a fair fight in the pending election, or ensures that a governor will not have to take sides if the local party is divided.

Given the extreme danger of mixing politics and the law (think back to Nifong’s appearance at the April NCCU forum for the most blatant example), Easley’s instincts were on target—even if he showed no courage in then not making this information public once Nifong broke his word.


Second, in a recent Herald-Sun op-ed, Everett outlined a possible legal justification for Nifong’s entering into an agreement to intentionally withhold exculpatory DNA evidence. The rape shield provision of North Carolina’s criminal code, Everett suggested, might rule the results of these tests inadmissible. As a Liestoppers analysis sadly observed, this line of reasoning channeled the discredited arguments of Wendy Murphy.

I received a thoughtful e-mail from a DIW reader who practices law in California, which passionately and persuasively critiqued Everett’s argument. He wrote,

I was prepared to just blow off another one-sided and absurd Herald-Sun article, when I got to the end and found out that Mr. Everett is a law professor at the Duke University School of Law.

This matter has produced more than its fair share of hyperbole, but I honestly think that Mr. Everett’s article would not warrant a grade above a D for a first year law student.

First, let’s assume that we accept absolutely “everything” (factual and legal) that Mr. Everett says is true other than his ultimate conclusion. Mr. Everett “doubts” that the evidence of semen from individuals other than the defendants fits into any of the exceptions to North Carolina Rule of Evidence 412. Therefore, Mr. Everett concludes “Judge Smith, who will try the case, may not allow the jury to hear this evidence . . . .” However, from these premises he concludes that Nifong might have been justified in not turning over the results to the defense. That conclusion is so irrational as to raise the question of whether it really represents Mr. Everett’s honest opinion.

Once Mr. Everett concedes that there is any possibility that the evidence might be allowed in by any Judge, it follows that (if the evidence tends to exonerate the defense, which one must concede that this evidence does), then it must be turned over. The alternative is to give the prosecutor the effective right to make the ultimate evidentiary ruling as to whether the evidence can be introduced. If the defense does not know about the lab results, it cannot even attempt to convince a Judge to allow such evidence to be introduced into evidence. Mr. Everett cannot possibly believe that it is appropriate under North Carolina or Federal law for a prosecutor to withhold evidence tending to support the innocence of the accused merely because a Judge “may not allow the jury to hear this evidence.”

And, this is just the beginning of the outlandish contentions made by Mr. Everett. For starters, Mr. Everett seems to concede the fact that North Carolina and Federal law normally require the evidence in question to be turned over the defense. Mr. Everett, however, argues for some type of implied exception for evidence which a Court might not allow a jury to hear. Where does such an exception come from? Mr. Everett invents it without legal support or argument, in an apparent attempt to defend the indefensible.

Further, Mr. Everett’s contention that a judge might not allow the evidence to be introduced is suspect, at best. Mr. Everett fails to mention that there are effectively five exceptions to North Carolina Rule of Evidence 412. As a matter of Federal constitutional law, regardless of what North Carolina evidence law (or Federal statutory evidence law, for that matter) may provide, a Judge must normally allow the introduction by the accused of any evidence that is reasonably necessary for the accused to defend himself or herself. On that basis alone, the evidence would almost certainly be allowed to be introduced to a jury (and, if not, any conviction would be overturned).

The evidence in question is highly probative of innocence for at least three reasons:

1. If a rape occurred at all, especially since the accuser said that she had not had sex with anyone else for a week before the alleged rape, the defense could use the evidence to suggest that persons other than the accused may have committed the rape. For some strange reason, Mr. Everett has apparently concluded that the semen that was found on or about the accused must have come from the accuser’s consensual sexual activities. But that cannot possibly be known unless either i) no rape occurred, or ii) the “owners” of the semen in question have been identified and the accuser has conceded that she had consensual sex with the identified individuals. Unless Mr. Everett has access to non-public evidence, which if he had it should have been disclosed in the article to support an otherwise ridiculous assumption, item two has certainly not been established. That leaves Mr. Everett in the strange position of arguing, in effect, that he believes that the evidence of sexual activities with other men need not have been turned over to the defense because it is clear that no rape at all occurred.

2. The likely alternative to the semen belonging to the “true rapists” is that the accuser lied to the police in their investigation of the alleged rape (the alternative being, as I understand it, the extremely unlikely presence of DNA testable more than a week after sexual activity). While not conclusive on the issue of guilt, any lie made by the accuser in the course of the investigation of the crime in question certainly calls into question the accuser’s credibility.

3. Any consensual sexual activity engaged in by the accuser around the time of the alleged rape (which -- understatement alert -- the existence of semen from three to five other men would tend to suggest) would explain the mild “injury” (if you can call it that) noted by the nurse who first examined the accused as being “consistent with” a sexual assault. (As an aside, virtually any evidence of sexual intercourse is “consistent with” a rape having occurred. Indeed, the only thing that I can think of that would not be “consistent” with a rape having occurred -- in terms of a gynecological examination of the accuser -- would be an intact hymen.)

One matter which has escaped the attention it deserves is the fact that Mr. Nifong did not object at the December 15th public hearing or earlier to even the public dissemination of information concerning the semen found on the accuser or her clothing. Mr. Nifong has consistently conceded that the evidence of the existence of that semen was required to be given to the defense. His defense is rather (depending on the day), i) I never agreed with the lab director that this evidence was to be excluded from the report (State Bar Amended Complaint, paragraph 282), ii) I didn’t know about the existence of the evidence until the December 15th hearing, (stated or implied, depending on whether you agree that his statement to the Court was ambiguous) iii) I thought that the evidence had, in fact, been turned over earlier (State Bar Complaint, paragraph 287), or iv) he agreed with the lab director that the evidence should be excluded from the report because the of privacy concerns regarding the lacrosse players and other who had provided known reference samples (State Bar Complaint, paragraph 286).

Notably absent from Mr. Nifong’s myriad justifications is any contention that the evidence in question was not legally required to be turned over the defense. Faced with the loss of his license to practice law, why didn’t Mr. Nifong at a very minimum throw in the backup argument that “and besides, there was no legal obligation to turn over the evidence at all”? The reason should be self-evident. One hardly wants to defend oneself before the State Bar by making legal arguments so frivolous as to prove one’s incompetence to practice law.

It’s plausible that Everett’s H-S op-ed might have represented a trial balloon for a Nifong defense strategy in the pending ethics trial. If so, Nifong’s lawyers might want to go back to the drawing board.

Hat tip: T.S.


M. Simon said...

The enablers just can't quit.

Logic and proportion have fallen sloppy dead.

Joe said...

"Oh, my hymen's intact? Oops, I forgot, they didn't rape me. They just sexually assaulted me and called me the n-word. Send them to prison."

Anonymous said...

The amount of effort required to defend oneself from false accusations is astounding. Truly mind-boggling.

Thanks for another day of brilliant blogging, KC.

Anonymous said...

This information should be sent to the HS for publication in rebuttal of the opinion piece.

Anonymous said...

Nifong's claims regarding the information are reminiscent of the "kettle pleading" that is sometimes taught in law school. There was an old English case in which a man borrowed a neighbor's kettle, and returned it cracked.

The man simultaneously argued (1) the kettle was cracked when he borrowed it, (2) he returned the kettle intact, but the owner cracked it himself, and (3) he never borrowed the kettle in the first place.

Just like the various mutually exclusive timelines and charges that Nifong has produced, we see that he also presents the mutually-exclusive reasons for why he withheld information. While the "intellectuals" at Duke and the typical Durhamites cannot recognize the ridiculousness of his statements, the rest of us see through them. Here is hoping the NC Bar will recognize the lies as well.

Anonymous said...

Mr.Everett left out the Max Bialystock defense, "Judge, I'm sorry and I promise that I'll never do it again!".

Anonymous said...

I am not a lawyer and I glaze over following the legal ebb and flow. I don't know where reason and common sense have gone. Everett, a legal genious, can't get past picky little points about this section and that law and this intent and that evidence and look at the whole. Nifong clearly lied to the court, agreed to withold DNA evidence, and never conducted a proper investigation. Come on. You don't need a law degree to see that Nifong is beyond ethical boundaries. This is what makes the regular public furious with the legal system, which is very different from the justice system.

Anonymous said...

12:06 m. simon:

"Logic and proportion have fallen sloppy dead."

Go ask Alice, when she's ten feet tall...

Anonymous said...

"Everett, a legal genious, can't get past picky little points about this section and that law and this intent and that evidence and look at the whole."

I'm figuring that a good number of prosecutors see cases as a game, and gaming the system is what it's all about. Very disturbing. I shudder at the thought of somebody defending themselves against that kind of mind.

Anonymous said...

JLS says....

Actually this Everret has clearly adopted the Murphy view that since women never lie the DNA evidence could only be used to argue misidentification. But general misidentification is not allowed in this case. So only if that DNA was of other lacrosse party attendees who could be charge is it exculpatory in this world view and required to be turned over.

Of course as Prof Johnson said in his essay, this is a transparently silly argument. It takes the decision on admissibility out of the hands of the trial judge.

Anonymous said...

Please, folks. Have a little mercy on Judge Everett. As I said on another website, view him as you would your blind and deaf grandpa who won't stop driving. The man was born three years before Methuselah for goodness sakes.

Anonymous said...

What is baffling to me is... having just graduated from Vanderbilt University Law School (and yes I have written Chancellor Gordon Gee about Professor Houston Baker)... I do not recollect either the right wing or left wing law professors ever spouting anything but well versed and rigorously researched ideas and positions on social issues (and always with a grain of salt with a tacit acknowledgement that they were entering the political fray)... but what I see from Professor Everett is, as REALLY WELL PUT by the attorney quoted in KC's blog entry, is that the legal reasoning of Professor Everett is about at the "D" level for any reputable law school. Let me be perfectly blunt: It is hard to get a "D" at a top tier law school unless you are purposely trying to fail... BUT IN FACT, Everett may have done it with his incredulous argument. But that leads me to believe that Everett must have been heavily misquoted or taken out of context... and so I hope we can learn more about his FULL opinion.

Let me end my ramble by saying, Wendy Gordon aside, who is simply incorrigible, I have to believe that the musings of Nifong leaning legal commentators have been unfairly seized on by the Hoaz Exposers... if you have a J.D. - and have passed the bar - and are offering a legal analysis of this case - I want to hear the whole thing - and not something chopped down by some idealogue journalist trying to present BOTH SIDES to the public.

Ah, this too will pass.

Anonymous said...

The fact the man is old doesn't excuse his absurd column.

Anonymous said...

What is relevant here is that in spite of the overwhelming evidence that the players are innocent the indictments remain and the accused continue to face a trial and at the very least extensive legal bills.

In the Tawana Brawley case, as soon as people discovered it was a hoax the accused were let off the hook. Here we have prosecutors, politicians, professors and administrators doing nothing to stop this travesty from continuing.

It is clear that for most of the Duke faculty and administration, the players have not been really victimized by the situation and there is no impulse to demand an end to this thing. They worry about the narrative, they worry about the reputation of the school, they worry about upsetting the Durham community, they worry about nasty emails sent to the gang of 88 and they worry about the accuser. But they somehow can't seem to find it in their hearts to care about the falsely indicted students.

There is a reason that one of the ten commandments is a prohibition on bearing false witness. It is a terrible thing to do to someone. Yet for a core of Duke faculty and administrators, the indicted players are so loathsome that they evoke no sympathy. It is clear from the Coleman report that such a demonization of the lacrosse team had no basis in fact. They are basically serious students and decent people.

Regardless of how and when the case eventually gets dismissed or ends in an acquittal, the lack of common decency is something that will haunt the Duke campus for a long time.

Anonymous said...

Everett ran it up the flagpole. Nobody saluted.

I do find it interesting, though, that so distinguished a jurist and member of the Duke Law School faculty would come out at this late juncture in defense of Nifong. Everett isn't a G88 type. Rather, going by his record, he appears to be an establishment player. Some weird strategizing seems to be going on among Durham politicians, most probably in an attempt to insulate the city from devastating lawsuits (Rae Evans, "You picked the wrong families, Mr. Nifong, and you'll pay for it for the rest of your life.").


Anonymous said...

anonymous 1:50am--

Point very well-taken and well-expressed. A welcome reminder that, for all the legal wrangling and fretting over reputation and the "correct" posture, three young men (and their families) are STILL under indictment in spite of everything. I notice that sometimes even this blog forgets that fact.

Anonymous said...

Professor Everett has brain gas. Hope it is temporary. I agree - be gentle to this man.

Anonymous said...

JLS says....

Here is who this Everett is:


There are several odd things here to me:

1. This guy in the age of terrorism should be a nationally quoted expert on miliatry law. But his writings do not reflect anything on this topic since 9-11-2001?

2. This guy's center at Duke got a huge donnation from mommie. It is a bit suspect at institutionos of higher education for a donor to be allowed to direct money to their relative?????

3. Mom was also involved in Durham city politics going way back.

David Nieporent said...

Your anonymous commenter actually is too easy on Nifong (and Everett). Under the most generous possible interpretation, inadmissible evidence might not be deemed exculpatory, such that it might not have to be disclosed under Brady. (But there are several flaws in that theory, the most important of which is that this evidence is probably admissible and that in any case admissibility isn't up to the prosecutor to determine.)

But North Carolina's current disclosure law, as you've discussed many times, requires the disclosure of all evidence, not just the exculpatory evidence. So whether the Rape Shield law would bar this evidence is completely irrelevant to the question of whether the prosecution had to turn it over to the defense.

Anonymous said...


Your plea to go easy on Everett doesn't wash.

Everett is not being identified as a "doddering old fool with too much time on his hands who had nothing better to do than write a (poorly reasoned) piece for the Herald-Sun." He is being identified as a Professor of the Duke Law School. If he wants to claim that mantle, his reasoning must be evaluated from that perspective.

Some people in these comments and on the LS website on the same topic have described Everett as "distinguished." What Everett has produced here is far from distinguished. His faulty reasoning needs to be identified as such so that it does not even get a chance to be perceived as legitimate.

Anonymous said...

12:55AM, 2:34AM

Your requests to go easy on Everett are odd, given what is at stake - that is, 3 men falsely accused, still charged and facing 30 years in prison. That the situation has improved a bit is no thanks to him. I'm assuming that Everett himself has never faced the prospect of prison or agonized over over false charges against him. Yet his public comments continue to do unnecessary and expensive damage, far beyond the mere rantings of an old man upset over the writings in the sunday newspaper. I simply cannot imagine anybody defending themselves over false accusations, (probably even yourself,) who would consider Everett's actions benign. So, with great incredulousness I must ask, are you kidding?

Anonymous said...

There are two possible sources for the DNA

1 - The real rapists (lol)
2 - Her other "boyfriends"

There is no way that evidence will not be shown to a jury. One show some else did it, the other shows she lied about her sexual history and could be the cause of injuries.

A 1st year law student could figure that out. What was this Prof thinking? Is he buddy buddy with Nifong?

Anonymous said...

Would getting Nifong removed from court help Durham in a lawsuit?

As soon as someone filed a complaint he was removed. A good defense to a lawsuit?

Anonymous said...

Everett should have disclosed he supported Nifong in the primary and election. Again, it goes back to these people are not usually held accountabale for their words and actions.

Anonymous said...

"There are two possible sources for the DNA

1 - The real rapists (lol)
2 - Her other 'boyfriends'"

And that's the funny thing about the "rape shield" argument. People who try to sell it ignore possibility (1). Because they know just as well as everyone else that this case is a hoax.


Anonymous said...

A while ago, in what we call "the Gell Misunderstanding", Senior Prosecutor Coman blithely admitted that the State AG office habitually withheld evidence favorable to the defense if it decided that evidence only impeached (i.e., undercut) the credibility of state witnesses -- if said evidence indicated innocence but didn't prove it ten ways to Sunday, well then it wasn't exculpatory, so bye-bye evidence.

Coman, by the way, is doin' real well. Gonna tell us how Nifong was doin' with his own evidence.

Anyway, now we see a Duke Law Professor opine that the DA can by himself decide that certain evidence is inadmissible. Presumably, the DA can't just wildly declare all the evidence he doesn't like inadmissible. He must hold a mental trial, all legal-like, and then can only conceal the stuff he really, really, really believes is inadmissible.

North Carolina doesn't need any actual trials, because the prosecutors are so smart and honest... and the voters who allow this stuff year after year aren't morons or gluttons for punishment, they're just real forgiving.

~ imhotep

Anonymous said...

“political language is designed to make lies sound truthful and murder respectable, and to give solidity to pure wind.” -- George Orwell, "Politics and the English Language"

As seen in Anthony Daniels feature, "Orwell's "Catalonia" Revisited" in the Feb 2007 New Criterion.

Anonymous said...

"His (Orwell) moral courage in exposing the evils of communism when the prestige of the Soviet Union among the leftist intelligentsia—and there was virtually no other—was at its height was very great, if not quite to be compared with that of dissidents under a totalitarian regime. Insofar as it is possible for an intellectual in a liberal democracy to be brave, Orwell was brave." - As seen in Anthony Daniels feature, "Orwell's "Catalonia" Revisited" in the Feb 2007 New Criterion.

An apology is not enough, the Gang of 88 and their ilk need be replaced...Marxism is dead, only being taught now as post modernisn, and other names.

It appears few if any are brave enough to confront these people.

Anonymous said...

Durham 2010:

Orwell goes on to describe Barcelona as it struck him when he first arrived there.

"It was the first time that I had ever been in a town where the working class was in the saddle. Practically every building of any size had been seized by the workers and was draped with red flags or with the red and black flag of the Anarchists; every wall was scrawled with the hammer and sickle and with the initials of the revolutionary parties; almost every church had been gutted and its images burnt. Churches were here and there being systematically demolished by gangs of workmen. Every shop and every cafĂ© had an inscription saying it had been collectivised; even the bootblacks had been collectivised and their boxes painted red and black… . The revolutionary posters were everywhere, flaming from the walls in clean reds and blues that made the few remaining advertisements look like daubs of mud." - George Orwell, Catalonia

I think I'll go see if I can find the mission statement of the race/gender/class warfare studies departments and see what they say...

Anonymous said...

The really scary thing to me about this Everett guy is that he is teaching law to students. That doesn't say much that's good about the kind of lawyers Duke Law School is producing.

james conrad said...

theres very little good to be said of durham in general, its appearance is that of a town thats seen better days (texiles & tobacco i assume)but failed to capitalize during the good years.

Anonymous said...

Although off topic on this thread, this is appropriate in the context of the current debate here.

Harvard’s Faustian Bargain

"Faust runs one of the most powerful incubators of feminist complaint and nonsensical academic theory in the country. You can count on the Radcliffe Institute’s fellows and invited lecturers to proclaim the “constructed” nature of knowledge, gender, and race, and to decry endemic American sexism and racism."

Anonymous said...

Everett stikes me as merely a less obnoxious version of the Group of 88.

I can imagine him stating publicly his earlier support for Nifong.

Now, when it appears certain that Nifong's actions were not only unethical, but criminal, Everett has to recover some part of his reputation by constucting a lame explanation for Nifong's behavior.

Even in old men, vanity regarding ones reasoning can lead to horrific justifications.

Everett should retire... and no longer represent himself as a Professor at Duke Law School. His public comments should be made on his name alone.

Anonymous said...

2:35 AM
JLS says.... "Here is who this Everett is:"

Also interesting from the link - Everett was a Jimmy Carter appointee. So he probably is not 'politically neutral'.

Gary Packwood said...

Re: JMHO 5:57 AM

Planted Semen

Anonymous said...

"There are two possible sources for the DNA

1 - The real rapists (lol)
2 - Her other 'boyfriends'"

And that's the funny thing about the "rape shield" argument. People who try to sell it ignore possibility (1). Because they know just as well as everyone else that this case is a hoax.

Actually there is a third possibility. She arrived at the party with the DNA intentionally planted on/in her person and ...Nifong knows that.

Pretty easy to harvest semen.

Suppose she was originally scheduled to be sent to the Basketball player's party instead of the Lacrosse party? Fraternity party?

Anyone over there at Duke know anything harvesting sperm and sperm banks?

Sounds like content for a CSI episode that never made it past idea stage.

AMac said...

m. simon kicked off this thread by noting, "The enablers just can't quit."

We start the century with our version of a Scottsboro Boys Trial (NYT link supplied for purposes of irony). The builders of that long-ago railroad just couldn't help themselves. Bad--very bad--for the Boys. Yet the overt and shameless nature of the prosecution's helpmates offers additional clarity for the students of today.

In real time, we are witness to the spectacle of the Select and the Elect stepping forward to do what they can in support of their threatened religions.

It's jarringly wrong that Evans, Finnerty, and Seligmann attempt to defend themselves. If Koba's justice system has taught us anything, it is that those who have been chosen to lay themselves on the pyramid's altar have been granted the highest of accolades. The obsidian knife and the bodies tumbling down the steps aren't signs of failure--they represent the noblest of sacrifices.

Surely we can come together with Professor Everett, Wendy Murphy, and the Group of 88 in agreeing on that much.

Anonymous said...

This is what Duke passes off as an "educator"?

Just Damn.

Anonymous said...

'Scottsboro, A tragedy of the American South' was a required text in my Southern History class at The University of Alabama in 1980.

When this hoax began, I took the book down from my bookshelf and re-read it.

The comparisons in the two cases are chilling.

Anonymous said...

Keystone Kops now joined by Keystone Kounsel.

Anonymous said...

Would be interested in hearing another Duke law professor's view regarding Mr. Everett's position.
Please, SOMEONE speak up because Mr. Everett's statements harm the reputation of Duke's law school. Does this man still teach law students?

Anonymous said...

If I lead an exemplary life, then at age late-whatever commit a serious crime and cannot be shown to be completely insane, should I receive sympathy or a jail term? The old prof screwed up big time, and his ramblings just add support for the Stoopid 88 and the nutcases in Durham. He doesn't deserve anyone's sympathy.

Anonymous said...

Prof. Everett strikes me as the Douglas McArthur of this scenario. An old guy who can't forego the ego tripping of his previous life and continues to attempt to find a proper context to which he can attach his expertise. Old law professors never die, they just fade into irrelevance.

Anonymous said...

"Actually there is a third possibility.
She arrived at the party with the DNA
intentionally planted on/in her person
and ...Nifong knows that."

* * ? ? * *

Anonymous said...

What is it with this Robinson Everette person? Isn't he supposed to be a Harvard educated lawyer...cum judge.....cum Duke Law School professor?

I have no patience with his annoying verbal gymnastics. More proof that the legal system and the way attorneys are trained need fine tuning.

One can only speculate that Everette might be suffering from early onset....or that he has been in the Durham environment for so long that the disease which permeates that place and its politics has taken him over.

In any case, I wouldn't give this man's attempt to find justification for the criminal activity of Mike Nifong another page of print.


Anonymous said...

G/d, I can't wait until this case is resolved and none of us has to read, hear, or be assaulted with the details of the semen-filled body cavities of this parasite, Crystal Gail Mangum (aka) Ms. Hygenic America.

As others have previously is incredible that such a destructive and negative human being could be the cause of so much damage to the lives of productive people.

And please.......old Mikey cannot be blamed for Mangum's decision to continue this hoax. This woman is a lowlife whore, but she isn't dumb.

My guess is that she's trying to finesse a way to make some big bucks from this story.

Those in Durham, NC who make a life from the Social Services office are well-trained in living well at the expense of strangers.


Anonymous said...

before this case I might have agreed with enacting a policy like this - at least in spirit. Now, I absolutely oppose this sort of carte blanche on the chance it could be used to Nifong someone.

"Panel Kills Rape Policy"

Anonymous said...

I was just rereading Brad Bannon's Letter to N.C. State Bar on the Gell case.

My first take on Everett's comments were that he is way out of line. But now, after reading Bannon's letter again, I don't see Everett's comments as being too far a stretch from the dealings of NC prosecutors. I would think that these rules are critically important to follow in the interest of rights. But, in the rush to try anything and everything, rights can apparently be marginalized due to "sloppiness," for which there is no accountability.

Everett just seems to be "one of the boys." I hope that I am misreading this.

Anonymous said...

"Everett stikes me as merely a less obnoxious version of the Group of 88."

Judge Everett's op/ed is inane, but I took a class with him at Duke Law -- his politics are NOWHERE near those of the Gang. He's an expert on military law and (when his mind was more clear) on criminal procedure. It appears that a likely buddy-buddy relationship with Nifong and his doddering age have clouded any semblance of clear analysis on this matter. Too bad.

Anonymous said...

From a non-lawyer... want to make sure I have grasped this:

In NC, prosecutors can, regardless of the law, dream up excuses to hide evidence of the accused's innocence, and be supported for doing so by high-profile members of the legal establishment? They've been doing this sort of thing for years and years, and so far there have not been any penalties?

And people are drawing a blank as to why Nifong thought he could get away with it.

Is that about right?

Anonymous said...

Panel kills rape policy change

See how easy it was.

Anonymous said...

"As a matter of Federal constitutional law, regardless of what North Carolina evidence law (or Federal statutory evidence law, for that matter) may provide, a Judge must normally allow the introduction by the accused of any evidence that is reasonably necessary for the accused to defend himself or herself."

While I agree with most of the well reasoned legal anaylsis, and from the perspective of a criminal defense lawyer, am particularly horrified by Nifong's evident misconduct, I fear the quoted statement simply is wrong. There is no constituional right to have otherwise inadmissible evidence admitted in a trial-so a rank hearsay statement by someone who says I heard the three boys weren't there, or a time stamped photo of unknown provenance showing someone else committing the crime, or any of a zillion other possible pieces of evidence which tend to exculpate a defendant are simply NOT admissible unless they meet the state or federal standards for admissibility at trial. Sentencings may be a different story, but to my knowledge the fact that a piece of evidence may be probative of innocence doesn't make it more admissibile if it doesn't comply with the trial court's evidence rules(Federal or state).Of course, interpretation of those rules sometimes allows admission of otherwise inadmissible evidence, and sometimes excludes otherwise admissible evidence-that becomes fodder for appellate courts.If there's some legal authority for the quoted proposition, I'd welcome the citation, since for my next scheduled trial I have nothing admissibile to offer the jury on behalf of my hapless client.

james conrad said..., well, i hope that its not right. i suspect alot of professions ( MSM,academia, justice, etc ) are simply stunned to learn the power of the internet. the old days of no accountibility are fast comming to a close as the WEB offers instant expert analysis, no matter the field.

Anonymous said...

Just went back and read the link provided by another poster about Everett's background.

I had heard bits and pieces about him, but had no interest until now.

Just look at that article. Robinson Everett is an only child of two legally trained wealthy professionals.

This overblown man has never faced a hardship in his life. With the cushion he's had all his life, how difficult was it for him to be accepted at Harvard?

I must be cynical in light of Everett's latest offering. Large amounts of money provide window dressing for a lot. It is possible that his previous accolades were born more of his parents' deep pockets than his own intellect.

Kind of like the present-day affirmative action admissions with which we are so familiar.

There is no excuse for Everett's defense of Mike Nifong....unless he and Nifong share a close and personal relationship we don't know about.


Anonymous said...

JLS says....

re: 12:29

I wondered if Everett was:

1. Writing this as a sop for the leftist on the faculty because his recent work post 9-11 probably offended them. [Oddly I did not see that much formal work post 9-11, but maybe his informal views?] That is he is trying to make up for offending them by pointing out that the administration can detain and hold battlefield captures until the war is over whether the war on terror ends in 2008, 2018, 2028 or 2108.

2. He is just an old line Dem. Just supporting another white Dem.

3. He is just an old line Dem trying to make up for his family's possible racist past. I don't know his family's past but I wonder about someone elected to the Durham city councel in 1950 who served until 1971 maybe was not a leader in voting rights?

It could be some combinnation of the above too. He is clearly someone who clearly thinks he is smarter than the rest of us and can run this claptrap by us and he wont notice. I certainly would hope any young law student editing a law review would look closely at anything this clown submits from now on.

Anonymous said...

I think I can guess what might be the reason for Everette's public love letters to Mike Nifong.

Since Nifong is a graduate of UNC-CH Law School and has lived in Durham for decades, as has doubt many, many professional and social events have occasioned suck-up sessions......syrupy compliments.......and sycophantic praise of Katharine Everette, Robinson's old "mammy" by Nifong.

Everette must be so endeared to and enamored by this Liberal Democrat "warrior for justice" who said so many glowing things about "mammy" Nifong is also an alumnus of Katharine's beloved UNC-CH Law School.

Everette must try to help his little sycophantic buddy.....even as the world has made its decision: Mike Nifong is a desolate, petty petri dish of evil.


Anonymous said...

JLS says....

re: 1:06

I think your examples are about whether evidence is reliable or not which is an issue that I guess must be decided at some level but one level could be the jury, but you are correct the government and judges routinely do not allow defendats to assert defenses that they wish to. I think it is a outrageous, but there are media reports of this happenning.

Anonymous said...

Also interesting from the link - Everett was a Jimmy Carter appointee. So he probably is not 'politically neutral'.

Jimmy Carter appointee?
I'm SHOCKED, shocked.

Seriously, I thought most of them were impeached by now (one Carter appointed judge removed from office by congress is now sitting in congress as a proud member of black caucus and Nancy Pelosi's pick to head the house intelligence committee..That judge sold FBI wiretapping info to mafia).

I'm afraid that congress is the likely place for Gang88/Nifong/Everett if they are ever held accountable.

Anonymous said...

I just asked my Duke law grad husband (who's not really keeping up with this case) about Everett. His reply was, "Yeah, I had him. A lot of people revered him, I guess because he's old and rich and gave a lot of money to Duke. I thought he was an idiot."


Anonymous said...

Legal jibber-jabber aside, the real "common sense test" here is; wouldn't a responsible investigation have identified the other sperm donors as part of a 'rape investigation' ?

I mean, if the DPD/DA really believed a rape occurred, wouldn't they want to identify the owners of those little buggers?- After all, they still could have been "Dukies", which is what they were gunn'in for.

To me, the very fact that DPD/DA never looked for these 'guys' (never mind the crime that they supressed the evidence) is prima facia evidence that they "NEVER BELIEVED HER" themselves.


Anonymous said...

I suspect Everett does not know the facts of the case. That is the simplest explanation for his ridiculous argument.

IF the complainant had averred that she had had sexual contact with several men other than the players and if she had also averred she was sure that the players had used condoms, then the presence of others' DNA would have been obviously irrelevant to possible impeachment of the complainant. Such evidence would not have been exculpatory and almost certainly would not have been admissable under a rape shield law. I have no idea whether, under NC law, evidence that is clearly not exculpatory must be provided to the defense, but I suspect that even if such provision were required, failure to provide evidence that could not possibly be construed as exculpatory might well be viewed as at worst a technical, not a substantive, violation of legal ethics.

Before anyone jumps all over me for defending Nifong, that is of course NOT what the testimony of the complainant was and is NOT a defense of Nifong, who seems to me a disgusting criminal. I am merely saying that no one needs to construct theories that Everett is repenting for his family's purported racist past, is unable to construct a legal argument despite years on the bench, has Alzheimer's, etc. I suspect he shot his mouth off without doing any serious research. That is a rather common human failing.


Anonymous said...

Carolyn asks:

In California, no lawyer is allowed to practice law until after he passes the state's bar exam. This takes at least a year (studying for the exam, taking it, awaiting results). Even then, you must still practice a minimum of 3-5 years more before you know the law enough to even attempt to argue it in court.

Yet Everett was appointed to the Duke law faculty to teach law the SAME year he graduated from law school (1950). In other words, Duke appointed someone to teach a subject they had no real world knowledge of.

Yo - Gang of 88. A rich white boy got there ahead of you!

M. Simon said...


12:21PM link

Here is how you make permalinks:

<a href="url">text to display</a>

replace url with:
leave the quote marks

replace text to display
Duke Fever

Duke Fever

Anonymous said...

Interestingly, or maybe not, Everett's mother-in-law died three days shy of her 94th birthday just six days before this op ed was published.

Grace McGregor obit


Anonymous said...

Professor Everett certainly has the credentials to make a legal opinion on the evidence - and he has everyright to do so. We have the Supreme Court to judge the difference in legal disputes. It is one thing to go after folk who are misrepensenting the facts as we know them, quite another to make a personal attack on a highly educated lawyer.

Anonymous said...

My son-in-law is a Harvard law school graduate. He passed the bar in a lot less than a year.

Anonymous said...

To clarify my position, which I agree could have been stated with more precision:

In Michigan v. Lucas, 500 U.S. 145(1991) the Supreme Court held that the application of a state's rape shield law may violate a defendant's Sixth Amendment rights, and may only be applied to exclude the offered evidence if a state's interest in excluding the evidence outweighs a defendant's interests in being able to confront his or her accuser. Lucas, 500 U.S. at 150-53.

Where evidence is excluded because of concerns about its reliability, the state's interest will almost always outweigh those of the defendant, and could not be considered *reasonably* necessary for the defendant's defense. However, where the offered evidence is reliable and highly probative of innocence, the defendant's right to confront his or her accuser will *almost* always outweigh the interest of a state in keeping the evidence from the jury. (Exclusion of information protected by the attorney-client privilege, for example, would be an exception.)

Since I think that N.C.'s rape shield law contains sufficiently broad exceptions to be constitutional in most or all cases, I doubt that the sixth amendment argument would ever be necessary in this case. But I stand by my contention that regardless of how one interprets the exceptions to the rape shield law (and remember that Mr. Everett doubted that the exceptions apply in this case), the defendants in this case would nonetheless have a constitutional right to the introduction of the evidence in question. In light of Mr. Everett's extremely narrow view of the exceptions in the rape shield law, he should have considered the possibility that the evidence in question would nonetheless be admissible for constitutional reasons.


Anonymous said...

Professor Everett is a Harvard law school graduate at the age of 22 and obviously a brillant man. Unlike Easley and many others, he is not from NCCU or Podunk U. I am sure he had and has great knowledge of the law. Chief Justice Roberts - please weigh in here on your view of the law per the DNA evidence or lack there of.

Anonymous said...

5:04 That is what I am looking for on this blog. I don't know if you legal opinion is right or wrong, but thanks for expressing it. Please, no personal attacks attacks, particularly from those who can't write without cussin or describing body parts.

Gary Packwood said...

TW 2:46 PM

Oh, I think they do know the 4 or 5 names who belong to the 4 or 5 sperm samples.

Now, I guess we need to wait and find out what they knew and when they knew it...and who in Durham set this up.

Anonymous said...

Judge Everett may very well be wrong as a substantial matter, but two points regarding the follow up commentary on this blog are, I think, worth pointing out.

First, as another commenter has pointed out, the legal issue is murkier than one might suspect and Judge Everett's actual op-ed is couched in fairly highly-qualified language (he "doubts," etc.). The condescending language here about his age, race, and assumed senility is hardly warranted, any more than the non sequiturs about what kind of grade his op-ed deserves.

Second, and much more important, much of the work of this blog in particular has been to criticize the way in which false and damaging assumptions were made about lacrosse players due to their race, class, educational backgrounds, etc. It hardly does those very valid critiques credit to use the same kinds of criteria to determine the motivations and character of Judge Everett.

Judge Everett has been a supporter of Mike Nifong, and he should have disclosed this. Mr. Nifong should have disclosed all the DNA evidence, in my opinion (and, by transition, I think Judge Everett is wrong on this count). But I had not thought of the rape shield statute and its implications, and am glad that it was argued by Judge Everett so that this particular facet of the issue could be worked out. I'm disappointed that some of the commenters here are so locked into the orthodoxy of Mr. Nifong's badness (for which there is quite a lot of proof), that they are willing to engage in the same kind of knee-jerking for which the G88 is rightly condemned.

Anonymous said...

5:07 said: "Professor Everett is a Harvard law school graduate at the age of 22 and obviously a brillant man. Unlike Easley and many others, he is not from NCCU or Podunk U. I am sure he had and has great knowledge of the law. Chief Justice Roberts - please weigh in here on your view of the law per the DNA evidence or lack there of."

SteveDinMD: Prof. Everett's brilliance is far from "obvious." His recent OpEd piece betrays reasoning that is either faulty or deliberately misleading. Moreover, I'm personally unaware of any ruling from the bench or argument made before any court by him that has had any widespread significance which could be used as a counterweight to his slipshod scholarship so recently put on public display in Durham. Am I impressed with his Harvard pedigree? No. He matriculated at a time when intellectual competition was far less intense than it is today, and at an age not uncommon for the period. Remember, too, he is the progeny of great wealth. Even today, wealth enjoys its very own "affirmative action" program. Just ask the Kennedys. Everett is but a diletante exposed in his dotage. Now is not the time for such foolishness, but for the well-reasoned logic of serious professoinals.

Anonymous said...

SteveDinMD: Prof. Everett's brilliance is far from "obvious." His recent OpEd piece betrays reasoning that is either faulty or deliberately misleading. Moreover, I'm personally unaware of any ruling from the bench or argument made before any court by him that has had any widespread significance...

You may be "personally unaware," but Everett argued before the US Supreme Court four times in landmark litigation known as the Shaw-Cromartie cases, which have had very widespread significance on the subject of constitutional prohibitions of racial gerrymandering in establishing legislative disrict boundaries.

I think he's dead wrong about Nifong's nondisclosures, but let's be fair to the guy.

Anonymous said...

Professor Everett matriculated at a time when an 8th grade education was better than a high school diploma today. What is it, over 60% of American students don't know Mexico is on our southern border. Trying to demeaning his brains and education is not not appropriate and or true. This question may or may not work its way up the judical system, but eventially there will be a ruling. The sad part for me is I have no faith in the North Carolina system. Stephens and Titus are a disgrace.

Anonymous said...

WTF "I don't know his families past, but it could be racial." Has never faced a hardship in his life." "He was an idiot". This smacks of Karla and the 88. Wait till you hear this ... school of thinking. The Kennedys may not be model citizens, but they are not dumb. Does it come as a surprise that wealth has its privileges?

Anonymous said...

"In California, no lawyer is allowed to practice law until after he passes the state's bar exam. This takes at least a year (studying for the exam, taking it, awaiting results). Even then, you must still practice a minimum of 3-5 years more before you know the law enough to even attempt to argue it in court.

Yet Everett was appointed to the Duke law faculty to teach law the SAME year he graduated from law school (1950). In other words, Duke appointed someone to teach a subject they had no real world knowledge of."

This is silly -- clearly you didn't attend a top law school. Plenty of law professors from such institutions never practice law -- in fact, at Yale, I would bet this month's mortgage payment, less than 50% ever did. In my experience, however, the ones with real-world experience (like, for instance, Jim Coleman) were far better teachers. Still, while Judge Everett is doddering now, don't disparage Duke for ever hiring the man.

Anonymous said...

I wuz reeding the Heruld/sun an seen a letter by Perfesser Evrette of the Duke law school and he dun said that Nifong oughta be the final decider when it cums to wut evidence is allowed in that court theer

Now i aint been to school sense i passd the 9th grade and ma wuz reel prowd but i know beter then that / > them judges gotta make thet desicion not the DA like whut hapenned ta me with the burrglarry an the robberry charges we all make mestakes an lord knows i maid my share but i aint dum like everette an i love duke an jj reddic and coach k an the boys an no way nifong getsta decide wut is or aint evidense see wut i mean theses my opinins wut says you bout wut there teechin in duke law school

Anonymous said...


It doesn't take a year after graduation from law school to be admitted to the bar, at least not in most states. A few years back, I graduated from law school in May, studied for the bar exam throughout June and July, took the exam in late July, got my scores in October and was admitted to the bar in November of the same year. That wasn't just me; it was common practice.

Also, I doubt it takes 3 to 5 years before one can argue the law in court. I personally am not a litigator and rarely appear in court, but it's my understanding that assistant district attorneys and assistant public defenders commonly appear in court and argue the law during their first year after admission to the bar.

Anonymous said...

"Professor Everett certainly has the credentials to make a legal opinion on the evidence - and he has everyright to do so. "

And us other lawyers have every right to point out how asinine his arguments (or "opinions") are. This is what makes this case so fascinating, how can someone with the intellect and experience as Everett write such a poor (and legally incorrect, there's really nothing else to say that already hasn't been said) op-ed?

I understand that certain people have a vested interest in protecting the reputation of Duke, but personal attacks aside, Everett's article is an embarassment. I'd give it an "F" if I was grading. Why so quick to doubt the exceptions to the rape shield statute? Why neglect to even specifically mention them? Why does he believe Nifong has the unilateral right to withhold it from the defense REGARDLESS if it is eventually deemed inadmissible? Why not mention the open discovery statute?

Its really breathtaking how someone so smart can have such an incorrect opinion.

Sincerely, a non-Duke law grad admitted in New York, Maryland and Virginia.

Anonymous said...

Professor Everett's fault was to not disclose his support of the Fong. KC could be right that they are testing the waters for Nifongs defense. Will be interesting to see if this goes anywhere. Everett can certainly write well.

Anonymous said...

Professor Everett,what say you in response to the numerous questions and rebutals to your articles in the newspapers.