Friday, March 09, 2007

January 16: Admitting Guilt?

Mike Nifong’s January 16 response to the Bar contains one particularly astonishing assertion. Relying on the transcript of the December 15 hearing, Nifong denied any suggestion that he entered into an agreement with Brian Meehan to intentionally withhold exculpatory DNA evidence.

After citing two quotes from Meehan, district attorney asserted,

A fair reading of the totality of Dr. Meehan’s testimony reveals that the concern over privacy matters originated with him, that he sought to provide a report that would both meet the State’s needs and allay those concerns, and that the way he balanced those competing interests was not dictated by my instructions. [emphasis added]

Does Nifong believe that the Bar is unable to consult the record of the December 15 hearing? Among other revelations by Meehan, the transcript includes the following:

DR. MEEHAN. It is true that we did not release the full profiles of all the players in this case. And I did that after discussions with Mike Nifong because of concerns about getting those profiles out into the public media. (p. 23)


DR. MEEHAN. Now, had the client himself, Mr. Nifong . . . request[ed] that additional information, we would gladly supply it. (p. 24)


DR. MEEHAN. But if it were a full profile and did not match any of . . . the reference specimens, our client, Mr. Nifong, specifically wanted . . . to know, “Do any of the reference specimens match any of the evidence?” And that’s the report that we gave him. (p. 30)


DR. MEEHAN. This report was a specific report at the request and in discussions with Mr. Nifong that we would report only specimens that matched evidence items. (pp. 59-60)


DR. MEEHAN. Mr. Nifong agreed with me that it was okay to do this. (p. 61)


DR. MEEHAN. Mr. Nifong agreed that it was okay to report the evidence items and reference items that matched.

MR. BANNON. But at the same time, he knew that there were male DNA characteristics on some of those rape kit items that didn’t match reference swabs, correct?

DR. MEEHAN. I would have to assume that he did know that, right. (p. 61)


DR. MEEHAN. We limited the scope of this report to only that evidence that, in my words, in my terms, was probative. All right. That being the evidence, as it says on the report, that matches suspects to evidence. (pp. 64-65)


DR. MEEHAN. We would be glad to provide a more thorough report, a report of every single profile upon the request of our client as was indicated on this report . . . Mr. Nifong is our client and had he said, “Listen, I want a report on everything,” that’s what we would produce. (p. 65)


MR. BANNON. You didn’t include the results for each DNA test in your report dated May 12; is that correct?

DR. MEEHAN. That’s correct.

MR. BANNON. So you violated this protocol of your own lab?

DR. MEEHAN. That’s correct.

MR. BANNON. And you violated this protocol of your own lab because the district attorney told you to; is that correct?

DR. MEEHAN. No. It’s not just because the district attorney told me to. [emphasis added] (p. 66)


DR. MEEHAN. We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope . . . and by the letter of the law, by the letter of the wording of the standard, you’re [Brad Bannon] absolutely correct. It diverges from the letter of that standard, okay. (p. 66)


MR. COONEY. Did your report set forth the results of all of the tests and examinations that you conducted in this case?

DR. MEEHAN. No. It was limited to only some results.

MR. COONEY. Okay. And that was an intentional limitation arrived at between you and representatives of the State of North Carolina not to report on the results of all examinations and tests that you did in this case?

DR. MEEHAN. Yes. (p. 85)

Can Mike Nifong seriously maintain that the totality of the above record suggests that he and Dr. Meehan did not enter into an agreement to intentionally withhold exculpatory DNA evidence? It is as if, in the exchange above, Nifong wants the Bar to believe that Meehan really said "no" to Cooney’s question.

Another exchange is of particular relevance in analyzing Nifong’s January 16 reply to the Bar:

MR. BANNON. But you only wrote a report about some of those pieces of evidence, correct?

DR. MEEHAN. That’s correct.

MR. BANNON. And is that because Mr. Nifong told you to write the report that way?

DR. MEEHAN. I don’t think he told me specifically to write it that way. I think we were in agreement that the alternative would have been, as I said earlier, to produce names and profiles of everybody in the case. (p. 60)

In his January 16 missive, Nifong cited the passage above as proof that he did not enter into an agreement with Dr. Meehan to intentionally withhold exculpatory evidence. He did so, however, with one minor . . . modification.

Nifong wrote, “Dr. Meehan responded, ‘I don’t think he told me specifically to write it that way.’”

The district attorney neglected to include the second sentence of Meehan’s reply:

I think we [Meehan and Nifong] were in agreement that the alternative would have been . . . to produce names and profiles of everybody in the case.

In other words, Nifong didn’t “instruct” Meehan to withhold the exculpatory evidence. He just was “in agreement” with Meehan on the need to withhold the exculpatory evidence.

Is it any wonder that the Bar produced such a vigorous amended complaint on January 25?


Michael said...

KC, in a future post, could you count up the number of charges that Nifong admits being guilty of and those that he disputes? I think that it would be pretty interesting, if only for shock value to see the overall numbers. A pie chart would be even nicer but I do realize that this is mainly a text site.

Anonymous said...

I can see right through nifong's little game..he is trying to be declared mentally incompetent to stand trial. It will probably work.


Anonymous said...

The instant that Meehan admitted that an agreement was reached between he and Nifong to limit the disclosure of evidence to the defense no doubt remainded that Nifong was a co-conspirator in violating an essential law in N. Carolina.
On the other hand, the very fact that the crucial information was NOT produced is sufficient evidence that Nifong deserves to be hung by his heels and eviserated.

Anonymous said...

Does anyone understand why Mr. Cooper, the attorney general, allows this Nifong frame-up of the lacrosse players to continue?

Anonymous said...

JLS says...,

Nifong is just trapped. I wonder if Nifong really thinks that Meehan, Himan and Gottlieb are all going to protect him?

And remember Monday is the optimum day to drop the charges. I will be looking intently Monday particularly Monday afternoon.

Anonymous said...

It's hard to believe that Nifong would withhold exculpatory evidence ONLY for political gain. Could Nifong be protecting someone who's DNA might have been found in the myriad of specimen's from the FA's rape kit thereby increasing his unrelenting goal to frame the Lacrosse players? His manipulation of this alleged crime from his condom comment to his exculpatory evidence reeks of "framing".
Social psychologist,Dr. Kelton Rhoad,notes that "A frame is a psychological device that offers a perspective and manipulates salience in order to influence subsequent judgment."
" directs the viewer to consider certain features and reject others."
Dr. Rhoad uses the OJ Simpson trial when he talks about framing and notes that "...the outcome of the trial depended on which frame became the one through which the jury viewed the evidence."
So was Nifong's motivation to "frame" these players and this case, really a possibility of an election loss or was there something much stronger driving him?

Anonymous said...


You must admit that the hunt to find outrageous lies in Nifong's statements is like shooting fish in a barrel. It hardly is sporting, anymore.

However, it still is fun, and you don't need a license for this kind of hunting. I think that Joe Cheshire and the others must be enjoying watching this liar twist in the wind.

AMac said...

Based on the civil standard of "preponderance of the evidence," the tattered case against the three indicted players is clearly unprosecutable. And the criminal standard is "beyond a reasonable doubt"!

This thoroughly corrupted evidence could only lead to a conviction or plea-bargain if the defendants were too poor to engage competent counsel.

These circumstances have presented the N.C. chapter of the NAACP with an inconvenient choice.

It could serve the narrowest interests of its favored participants by checking skin tones, then arguing for a trial and conviction of the whites.

Or, it could oppose wrongful prosecution even when the State's victims aren't black. Then it would be credible and consistent for the NAACP to decry the absence of procedural safeguards even when the innocence of the accused is (typically) not clear-cut, the accused are (typically) poor, and--as is often the case--the accused are black.

To the lasting shame of Irving Joyner and Al McSurely, the NAACP has been steadfast in the role of an ethnic pressure group, blind to precedent and justice.

Ex-prosecutor said...

It is not uncommon in legal pleadings and responses to extract a single sentence which appears to endorse the point which the drafter is attempting to make. However, such a tactic assumes that the reader is lazy and dumb, for it presupposes that the reader will not check the quote with the source document. There is no better way to anger a judge or tribunal than an insulting tactic like this.

I hope that the hearing board for the state bar reads your blog. Cheap tricks like this will doom Mr. Nifong.

Are cameras allowed in bar disciplinary proceedings? If so, I'd pay to watch because the fodder which Mr. Nifong has created for his cross-examination is the sort that trial lawyers dream about. The defense lawyers will rip him to pieces.

Anonymous said...

12:07 AM
"I can see right through nifong's little game..he is trying to be declared mentally incompetent to stand trial. It will probably work."

The 1/16 response, the bath robe on TV, the mindless babbling... this will be a classic "Vinnie 'The Chin' Gigante" defense!

We can only hope that it works as well for Mike as it did for Vinnie.

Anonymous said...

Meehan appears to use the word "we" to mean different things including 1)his lab; 2) people doing the work in the lab; 3) himself. Who knows what we stands for and the defense attorney should have been precise by asking "Are you saying that you and District Attorney Nifong agreed to . . .. "

Anonymous said...

Does anyone understand why Mr. Cooper, the attorney general, allows this Nifong frame-up of the lacrosse players to continue?

As has been stated many times before, it's all politics.

Liberal Democratic politicians in NC---as well as most other states---cater to the racist element of the black community for votes. These are people who produce almost nothing in society. Their reason for living is for cosmic justice......and playing out over and over again a Kabuki theatre production of Woe is me.

Apparently Mr. Cooper has future political ambitions. This is why three innocent people must continue to suffer.


Anonymous said...

Seems to me tha the 'fong's angle here will be to say that Meehan was incorrect and/or lied. Coming from that perspective, he can attempt to slip all of Meehan's references to their agreement and/or any Nifong instructions that are contrary to the law or common practice. As I read them, Meehan's answers have a degree of gushiness to them that the 'fong may think he can pull this off...

Anonymous said...

Monday 3/12 starts spring break for Duke , NCCU. It is the optimum day to drop the charges.


Anonymous said...

Funny, given his current position(s), Nifong didn't object to Meehan's testimony or make an attempt to clarify it while Meehan was on the stand.

Anonymous said...

Nifong continues to represent the state of NC. The state of NC still holds these young men and their families hostage. The US Attorney General Gonzalezes ignores this case. Senator Edwards crys about being called gay yet has remained quiet for a year on this travesty. Yep....thats the American Government at work.

Anonymous said...

Nifang seems to hold that everyone in the system is his ally, who will close ranks, disreguard the truth, and ket him off if he only gives them some explanation that is vaugly plausble under a set of "facts" that he asserts. This is consistent with his beleif that he could railroad innocent people when the tables were turned.

The very scary thing is that he has learned these lessons in so many years of experience as part of this same system.

Had he not made such a public spectacle and had he not done such a spectacuarly bad job in the frame-up, we have seen that, indeed, he did/does have a great many allies. The only way things are not going his way is that he has made it virtually impossible for them to do so. This guy is a criminal and deserves to do time.

Anonymous said...

My assumption is that Roy Cooper is considering running for governor, and therefore wants to be very careful about how he handles this case. I could be wrong - he may have no further political ambitions, but he finds himself in a difficult position - how to pick up this turd of a case by the clean end.

Anonymous said...

Had some time this morning to catch up on the news, and checked out Jason Trumpbour's interview with WRAL recently.

You can watch it on the WRAL website, and it's best to go to FODU to get the link.

A very professional performance by Jason!


Anonymous said...

Liestoppers has a post that reads as follows:
"Officers let us into 2C Edens and we went to speak to Michael Young. I knocked and we were invited in. Inv. Himan spoke to the subject in his room. He was polite and answered Inv. Himans [sic] questions." - Sergeant Mark Gottlieb (Case Supplemental Report, Page 32)

Is this the dorm visit wherein the officers followed students in without notifying the school that they were there? I read that Gottleib and Himan went to the campus and followed students into the dorm to interview the lax players without atorneys present.
Also, could somebody clarify a few points for me.

The number of DNA profiles found in, on, and about the accuser. I hear and read differing numbers.

The amount of time she would have been required to stay at detox when she was first arrested? I read that it was 72 hours mandatory.


Anonymous said...

Tough getting caught in your own lie. He's really stepped in it now.

Anonymous said...

More lies from Nifong!
In Nifong's Jan 16 response to the Bar on Page 2 Paragraph 3 Nifong states that Meehan told him that none of the DNA matched the 46 Lacrosse players.
In the same response of Jan 16, on
Page 3 Paragraph 2 Nifong states that at a second meeting with Meehan on May 12th & after more DNA testing had been completed, Meehan told him that DNA from Evans and another Duke Lacrosse player (not Seligman or Finnerty)were consistent with DNA found on the false fingernail.
How is it then that on May 16, 4 days after being informed that DNA from someone other than whom the FA had accused and sloppily identified (after many attempts), Nifong makes this statement which was quoted on May 16, 2006:
"Durham County District Attorney Mike Nifong released a statement saying he anticipates no further indictments, saying "none of the evidence that we have developed implicates any member" of the team other than the three charged."

That's not true! Aside from the other men's DNA, Nifong was told there was fingernail DNA consistent with another LAX player!

The other madness of Nifong's statement is that if he REALLY felt that Evan's fingernail DNA was crucial to his case why wasn't the other LAX player's DNA just as crucial?

If the fingernail DNA is inconsequential for one person, why is it not inconsequential for Dave Evans? Is it because the FA so clearly identified him, moustache and all?

Anonymous said...

What is the next step in the bar procedure, and when?

Anonymous said...

To 8:21..
Hell, how 'bout this afternoon (Friday), seems like every other major announcement in this case has come late on Fridays to avoid media frenzy...
To Wm. Anderson, I read your post on LS about the obstruction of justice by the DPD in regards to the intimidating arrest of the Taxi driver. I think this is another perfect example of why the Feds need to get involved. The corruption seems to go all the way to the AG, the State Seantors (Burr and Dole) do nothing, and 3 innocent men have spent a summary of over 3 million dollars (reportedly) to defend themselves from this travesty. Witness intimidation, Notes erased, destroyed or not taken. Tapes erased, illegal line-ups, obstructing justice (Linwood and Gottlieb I say), evidence tampering (Nifong, Meehan, DPD), unethical lawyers (long list), secret Grand Jury proceedings, etc... if all this (and there's more believe me) does not warrant a Federal investigation. then we are all in serious trouble !!


Anonymous said...

Actually, almost all Duke students will leave for Spring Break after classes today. So I would hope that maybe they'll drop the charges right before 5 p.m. today!!That would really be the answer to our prayers!!


Anonymous said...

I heard Cooper is planning to run for governor.

Easley has demonstrated why NC should not want another former AG in the governorship. I've never observed that AGs are particularly trustworthy.

Of course, the tolerance for unethical politicians is quite high in NC as evidenced by the re-election term after term of Jim Black, who recently resigned as Speaker of the House after being indicted on a myriad of charges.

Maybe Nifong and Black can be cell-mates somewhere.

Anonymous said...

At best (for Nifong), the testimony indicates the decision to withhold evidence was agreed with Meehan. But Meehan would not be expected to know the law, while Nifong is an officer of the court. So, Nifong claims to be taking legal advice from Meehan? Completely lame.

Anonymous said...

The number of DNA profiles found in, on, and about the accuser. I hear and read differing numbers.

This is a tricky question. The mimimum is 5, including 1 from the "boyfriend" -- so this sometimes reported as 4. The maximum could be very considerably higher.

There are a couple of complicating factors -- one is that the defense still has a motion unanswered for some results that are claimed to be negative but that weren't provided in discovery. As I recall, the motion makes the point that there were earlier claims of negative results that turned out to be false -- so how does anyone know the number of additional donors from these samples is zero?

The second complicating factor is that the results are reported as X unique profiles from sample Y, taken from nether region Z. If you just total all of these numbers, you get a much higher number -- but it is hard to say how much (if any) overlap there is between the different sample sites. In other words, one donor could have left DNA recovered from multiple swabs.

I arrived at the number 5 by assuming no unreported matches and 100% overlap. This leaves out the match that may have been to someone at the lab, since this was found in association with a sample that had fewer than 5 profiles. In other words, the repoorts that are available list one swab with 5 unique profiles -- so this is the minimum number. I hesitate to even report the number you get if you just add everything up assuming no overlap!

Anonymous said...

Where's the action?

Where is everyone?

Anonymous said...

I can see right through nifong's little game..he is trying to be declared mentally incompetent to

He will enter rehab a day before the bar committee decision, claims alcohol problem, being raped by evil white republican when he was 10 and invoking the victim card and thereby getting 100% support from NYT, al-AP, dailykos and other left wing extremists.

Left wing fundamentalists hunt down KJ and all anonymous bloggers and physically attack them (this is reality today when right-of-left extremists tries to have a talk at campuses..marxists have absolutely control nowadays). For example, mocking Hamas gets you expelled immediately from campus. Mocking christians or physically attacking conservatives is ok by the brodheads of the world.
This is a sad reality and I really hope KJ also reconsiders his opposition to Horowitz's academic freedom proposal. Marxists will never tolerate dissent or free speech so the change cannot happen without external pressure. Gang88 is the perfect example of everything that is wrong today.

Anonymous said...

How likely do you think it is that somebody involved in the conspiracy(e.g. his assistant DA or police officer) betray Nifong and makes a deal with somebody (e.g. feds)?

Anyway, I have lost all hope regarding Justice Department under Gonzales. He is clearly afrid of going after dems (I have no idea why). Runaway prosecutors in border agent case, Fitzpatrick, Nifong, Freezer Jefferson are free to continue.

Nifong is now trying to blame everybody else so will they take the blame ? I would think that at least one person in the conspiracy (clearly, it involves several people, probably 10 or so) eventually tells the truth.

Anonymous said...

I would like to ask for one more clarification. Could somebody in the know please tell me if Pres. Brodhead actually spoke AGAINST the students for hiring lawyers. Thanks in advance


Anonymous said...

Some criminals WANT to be caught and punished, because some part of them conscious or not knows that what they are doing is wrong.

The complete ridiculousness of Nifong's defense makes me think that perhaps he is one of these types.

Anonymous said...

I am still upset that this letter was given to the N & O and not the public two weeks ago.

Also, Mikey makes much of NOT remembering the April 10th meeting, but in Sec 3, paragraph 5 he refers to the "April 10th meeting". Mikey can not even respond to the Bar and keep his lies straight. This man is doomed.

I've said it before "Dead man walking"


Anonymous said...

A question of mileage.

I did a mapquest of the trip from 201 E. Main St, Durham, NC, 27701, the office of the DA to 1902 Tucker St, Burlington, NC, 27215, the office of DNA Securities per their website. The result a trip of 33.9 miles with an estimated time of 37 minutes and at least 26.6 miles on NC-147N merging into I-85S.

It is hard for me to believe that having spent that much time going back and forth from a place that costs as much as DSA Securities does and has as cutting edge a lab, any of the participants would be confused as to who was on the road trip on April 10th.

Did anyone account for mileage?

Anonymous said...

Managing the Crisis You Tried to Prevent - Norman Augustine,

“There is a tide in the affairs of men,
Which, taken at the flood, leads on to fortune:
Omitted, all the voyage of their life
Is bound in shallows and in miseries…” – Julius Caesar, Wm. Shakespeare

Six Stages of Crisis Management,

1. Avoid the Crisis: “...chronic carelessness stems from a blind spot common among executives - and especially chief executive officers: They actually believe that they are in control of their companies’ fortunes…Make a list of everything that could attract troubles to the business…Discretion and privacy can be critical to avoiding some kinds of crisis...”

Brodhead and the Gang of 88 fail.

2. Preparing to Manage a Crisis: “…should view and plan for the inevitability of a crisis in much the same way one views and plans for the inevitability of death and taxes not out of weakness or fear, but out of the strength that comes from knowing you are prepared to…play the hand that fate deals you.”- Steven Fink “We must make plans for dealing with crises; action plans, communication plans, fire drills, essential relationships…”

Elevating the AAAs frauds to Dept status, and electing a Gang of 88 bigoted racist to lead the faculty hardly rates as properly preparing to manage a crisis. Encouraging the students to meet with the DPD without counsel and allowing the police into the dorms are, we may soon discover, criminal.

3. Recognizing the Crisis: “…If you can keep your head when all about you are losing their, its just possible you haven’t grasped the situation” – humorist Jean Kerr. “ Companies sometimes misclassify a problem, focusing on the technical aspects and ignoring issues of perception…”…”Are you going to believe what you see, or what I’m telling you?” – Groucho Marx

It is clear the administration and trustees believes the race/gender/class warfare b.s.

4. Containing the Crisis: “…stop the hemorrhaging. This is the phase in which the tough decisions have to me made and made fast…”

This assumes one has a leader to make the tough decisions. Duke does not have a leader.

5. Resolving the Crisis: “In this stage speed is of the out independent experts who took (take) the facts to the public…”

Lethargic efforts by an inept administration that not only allowed the story to be presented by fraudulent liars, but continues to do so in spite of the overwhelming evidence that another liar manufactured a story.

6. Profiting from the Crisis: “Experience is the name everyone gives to their mistakes” – Oscar Wilde,,…”If a company has handled the previous steps flawlessly (that is, has not somehow managed to make the crisis even worse), the sixth stage offers an opportunity to recoup some losses…”

This I got to see...

“The bottom line of my own experience with crisis can be summarized in just seven words: tell the truth and tell it fast.” - Augustine

The lack of leadership, transparency, governance, and allowing a small, vocal fraudulent minority to be the voice of the University is pitiful. Duke deserves everything it has coming.

Character is judged by ones actions and inactions. In this crisis Duke has earned an “F”.

Anonymous said...

7:20 Great read - thanks for a well written and thought out essay.

Anonymous said...

2:115 pm: [Gonzalez] is clearly afraid of going after dems (I have no idea why)."

You are kidding, right?

"In January, Mr. Gonzales told the Senate Judiciary Committee, under oath, that he “would never, ever make a change in a United States attorney for political reasons.” But it’s already clear that he did indeed dismiss all eight [Democratic] prosecutors for political reasons — some because they wouldn’t use their offices to provide electoral help to the G.O.P., and the others probably because they refused to soft-pedal investigations of corrupt Republicans."

And this.

"Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved Democrats."

By Paul Krugman in today's NYT.

Anonymous said...

The bottom line: Nifong thought he could use this case to get elected (he had been appointed)and thought he could get away with anything because them media would not care to notice (which they tried hard to)...he did not think about the power of the blogs...thanks KC

Anonymous said...


For someone just to the right of
Atilla the Hun, I am having a hard time understanding just what this administration (through the AG) is doing. They cannot be totally oblivious to what is going on down in dear old Durham. The philosophy seems to be, if there is no immediate political (or financial) gain, ignore it. Maybe if the defendants were Hispanic......


Gary Packwood said...

We heard from a prosecutor last night who told us to 'hush up' and read the North Carolina General Statutes, Chapter 15A, Section 900 of the Criminal Procedure Act in North Carolina.

I did just that and learned the following.

Sure enough, any person charged with a crime must request access to the evidence the DA has concerning the case...and the request must be a detailed request of specific items or grouping ...of evidence.

And, the State of North Carolina is not required to tell you the names of the witnesses who will testify against you until the day that they jury is being selected. And, if for any reason the DA feels that the witnesses may be harmed by telling their names, the DA may choose not to reveal those names until it is time for the witness to give testimony at the trial.

My read of those rules led me to believe that if I did not have a very good attorney, I had better accept any deal the DA is offering in-so-far as I don't have any assurance that I really know what testimony or evidence is going to 'pop up' and sink me.

Anonymous said...

"In January, Mr. Gonzales told the Senate Judiciary Committee, under oath, that he “would never, ever make a change in a United States attorney for political reasons.”

Bill Clinton's first action in office was to fire all republican DAs. Not a single republican survived, so firing a few DAs here (who happened to refuse to indict politicians with the letter D atteched to them) hardly qualifies.
Gonzales has been an embarrassment. He allowed border agent fiasco (Dept of HS lied to congress, DHS agents and supervisors collaborated with mexican drug dealers who continued drug imports to US under DHS plea deal), did not go after New York Times (which clearly broke the law when revealing national secrets) and allowed Fitzpatrick fiasco to go on (Russert lied several times and later "remembered" the story, but Fitz. couldn't care less, didn't bother to go after Armitage either since he was a Bush critic) etc. I have no reason to believe that Gonzales does anything here either. I agree, maybe if Duke3 were illegal latinos raping babies Gonzales would be happy to intervene.

Anonymous said...

9:26 It isn't yet the Feds business...instead, States rights. NC must have the opportunity to square this, if not...then they deserve the Feds.

Anonymous said...

I would like to ask for one more clarification. Could somebody in the know please tell me if Pres. Brodhead actually spoke AGAINST the students for hiring lawyers.

I don't think he publicly spoke against their hiring lawyers. Lawyering up almost always ends cooperation with the investigation, and Brodhead did speak against the students on that.

He has pubically said that he urged the students to cooperate "fully" with the investigation. One variant was his 60 minutes interview where he said he told the students "The first thing you’ve got to do is tell the truth." Given that the students had been publicly declaring their innocence, I doubt his insistance that they "tell the truth" went over very well with them.

About 8 minutes into the March 28 2006 press conference there is a question from a reporter asking why the students "if they were innocent" were not shouting that from the rooftops.

(Click on the "Duke President suspends..." link under the Video icon)

Brodhead replied that they had a right to be silent, but he questioned their judgement in exercising that right.

Anonymous said...

Re: Gary Packwood at 9:50

Are you sure you read the revised (post-Gell) version of the discovery statutes? The revised 15A-903(a)(1) states that "Upon motion of the Defendant, the Court must order the State to make available to the Defendant the complete files of all prosecutorial and law enforcement agencies.... The term file includes the defendant's statements, the codefendants' statements, WITNESS STATEMENTS, investigating officers' notes, (etc. etc.)" (emphasis added).

It is true that under 15A-903(a)(3) the State does not have to give the defendant a list of the witnesses it actually intends to call during the trial until jury selection begins. However, that appears to be to protect the State's trial strategy. Presumably, any witnesses that the State discovered during its investigation and has interviewed would have had to be provided with the regular open-file discovery response. Example: Several weeks or months before trial, the State notifies the defendant that there are fifteen witnesses, and it provides the statements of those witnesses. It then becomes incumbent on the defendant to become familiar with all those witnesses and their statements, because it may be that the State only intends to call two or three of those witnesses, and it does not have to say which two or three until the beginning of jury selection.

Caveat: I no longer do felony criminal trial work, so if there is someone who is more familiar with this than I am, please feel free to set me straight!

North Carolina Lawyer